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Home > Penn Carey Law Journals > U. Pa. J. Int'l L. > Vol. 46 (2024-2025) > Iss. 3 (2025)

 

University of Pennsylvania Journal of International Law

Publication Date

Spring 2025

First Page

595

Document Type

Article

Abstract

On June 26, 2024, the Trial Chamber X of the International Criminal Court (“ICC”), in Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mahomed Ag Mahmoud, the first case on gender-based persecution under the Rome Statute, failed to convict Al Hassan of any gender-based crimes and acquitted him of the rape as a crime against humanity and war crime, sexual slavery as a crime against humanity and war crime, forced marriage as an inhumane act, and gender persecution as a crime against humanity. On the other hand, the Trial Chamber, by a majority, convicted Al Hassan, a Malian, of many of the other charges brought against him of war crimes and crimes against humanity committed between April 2, 2012, and January 29, 2013, in Timbuktu, northern Mali, controlled at that time by the armed groups Ansar Dine. Of the thirteen charges against humanity and war crimes under the Rome Statute of the ICC, six were sexual or gender-based offences. Although the Trial Chamber recognized the existence of these gender crimes, it found that there was insufficient evidence linking the crimes to the accused. The ICC Trial Chamber seems to have missed a long-awaited opportunity to recognize gender-based persecution as a crime against humanity.

Impunity for gender crimes denies survivors’ human rights and accountability. It also dilutes the gravity of gender persecution as a crime against humanity—rendering gender persecution a lesser crime than other war crimes and crimes against humanity. Despite good faith efforts on the part of the ICC Prosecutor’s Office to launch groundbreaking initiatives to advance accountability for the crime of persecution on the grounds of gender, including the Policy on the Crime of Gender Persecution of 2022, the ten Women, Peace, and Security Council Resolutions (“WPS”) that constitute the corpus of the WPS Agenda is not fully mined in advancing full accountability for gender crimes in international and domestic tribunals.

In January 2025, the ICC prosecutor’s application for arrest warrants against the Supreme Leader of the Taliban and the Chief Justice of the “Islamic Emirate of Afghanistan” for the crime against humanity of persecution on gender grounds is significant. As Valerie persecution on gender ground on its own—this is the only crime charged. So, the focus in this case is squarely and entirely on gender persecution.” Another important development is the way in which the Prosecutor has linked severe human rights violations, in this case, gender-based human rights violations, with crimes under the Rome Statute. As Oosterveld has argued, this case is “part of the course correction of the office of the Prosecutor after years of failing to secure convictions for gender crimes.”

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