A girl tortured by an armed group for violating dress codes or a woman killed for holding a professional job deemed inappropriate for women.
A man thrown off a building for being accused of being gay.
Women treated as chattel and raped by armed groups that capture their villages.
Lesbians issued death warrants for being caught kissing.
Trans people killed simply for living as their authentic selves.
This kind of gender-based violence has long occurred in conflict, but only recently has international law named it as a crime: “gender persecution.” The treaty that created the International Criminal Court — known as the Rome Statute and finalized in the 1990s — was the first to declare persecution on the basis of gender could constitute a crime against humanity. But it has taken decades of grassroots advocacy and legal work to prepare war crimes investigators to begin actually bringing such charges to court. Today, the first gender persecution cases are in process at the ICC, the clearest sign of a global shift in the treatment of gender-based violence in conflict.
It is critical to clearly name gender persecution as a crime if we want to target the discrimination that motivates it. International law now has the tools to declare that targeting women, girls and LGBTQI+ people, is a crime against humanity.
The Human Rights and Gender Justice Clinic: A Driving Force Against Gender Persecution
Founded in 1992 by CUNY Law Professors Rhonda Copelon and Celina Romany, the HRGJ Clinic has been been instrumental to winning recognition of gender persecution as a crime under international law. As the Rome Statute was being written, the Clinic served as the Secretariat for the Women’s Caucus for Gender Justice, which led the charge to ensure the treaty accounted for gender in crimes, procedure, evidence, and composition of the Court.
Copelon and the Caucus also successfully led the charge to swap the narrow term “sex” for the more inclusive word “gender” as a protected ground from persecution before it was finalized in 1998, overcoming objections from states that feared the term “gender” would increase protections for women and LGBTQI+ persons from discrimination.However, victory in the Rome Statute didn’t immediately lead to accountability for perpetrators of gender persecution. Confusing language in the Rome Statute, along with the fact there were few legal precedents on gender crimes in international criminal law, made the leaders of the young ICC reluctant to prosecute gender persecution cases. In 2017, the HRGJ Clinic — along with MADRE, the Organization for Women’s Freedom in Iraq, and other groups — petitioned the ICC to bring charges against ISIS for gender persecution committed while it controlled a large swath of Syria and Iraq. This petition also advanced the crucial argument that the persecution of LGBTQI+ people was also a form of gender persecution because the targeting of queer people is part of broader efforts to enforce rigid gender norms.
That same year, Professor Davis pulled together a coalition of organizations and universities to ensure that a court created by a new treaty on crimes against humanity clearly criminalized gender persecution as well. The coalition organized hundreds of civil society members, states, and UN experts, and successfully won an even clearer condemnation of gender persecution in the treaty finalized in 2019 than was included in the treaty that governs the ICC.
Professor Davis was named the special advisor for gender persecution to ICC Prosecutor Karim A. A. Khan in 2021. In that role, they authored a landmark “Policy on the Crime of Gender Persecution” issued by the Office of the Prosecutor to guide ICC investigators in bringing gender persecution cases. (Official versions of the policy paper are available in English, Spanish, French, and unofficial translations are available in Ukrainian, Dari and Pashto.)
The ICC issued its first verdict in a gender persecution case in June 2023, in a case against Al Hassan Ag Abdoul Aziz, who served as the chief of religious police when an Islamist militant group called Ansar Dine controlled the Malian city of Timbuktu in 2012 and 2013. Prosecutors alleged that he participated in crimes against humanity committed by Ansar Dine in the name of enforcing an extreme version of Sharia law, targeting women for rape, forced marriage, sexual slavery, and other crimes. The ruling was groundbreaking, ruling for the first time that an armed group had committed gender persecution. However, the judges split over whether Al Hassan could be held personally liable for these crimes, and he was ultimately acquitted of this charge.
Building a Global Movement
The Clinic supports grassroots efforts to win accountability for gender persecution worldwide under international law and in local courts.
The Clinic is organizing consultations throughout 2023 with grassroots activists and legal experts worldwide as the ICC’s Office of the Prosecutor prepares to develop a set of Principles on the Crime of Gender Persecution. These Principles aim to guide governments, human rights bodies, judicial actors, and humanitarian rights groups to help prevent this crime against humanity and respond appropriately when it does occur.
The Clinic is also supporting the work of grassroots organizations in Colombia, where a war crimes tribunal has recently issued landmark decisions concerning gender persecution as part of the peace process established by a 2016 treaty ending the country’s civil war. In 2022, the Clinic provided legal and documentation training for Colombian activists and tribunal staff, known as the Special Jurisdiction of Peace.
In October 2024, the Clinic, along with CUNY’sInstitute on Gender, Law, and Transformative Peace and partnering universities and advocacy organizations, will launch a new Gender Persecution Observatory. Drawing on grassroots documentation efforts alongside publicly available information, the Observatory is an interactive forum where viewers can see rich data snapshots of gender-based harms in conflicts around the world, increasing the awareness of accountability mechanisms and other key stakeholders.
