SAHR's Comment to ICC Policy on Gender Persecution as a Crime Against Humanity
SAHR in collaboration with a handful of members of the Hedera Collective submitted a Comment to the “Draft Policy on the Crime of Gender Persecution” prepared by the Office of the Prosecutor of the International Criminal Court.
The OTP’s Draft Policy on the Crime of Gender Persecution constitutes a momentous and necessary acknowledgment of the prevalence, gravity, and often intersectional nature of gender persecution.
Our Comments addressed several points, namely, the need for an intersectional approach to gender analysis, recognition of non-violent forms of gender persecution, appreciation of civil society's vital role at every stage of the process, recognition of gender persecution against men and boys, and other considerations informed by SAHR’s extensive on-the-ground experience, and those of its partners around the world.
👩🏻💼 We thank Natasha Latiff, Marissa Kardon Weber, Humaira Ameeri, D Mohamad for their contributions to the Comment.
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1. We suggested to add a policy objective around strengthening coordination and consultation with civil society, as follows:
Strengthen coordination and consultation with civil society, especially women-led NGOs and NGOs led by diverse SOGI and victim groups, recognising that they provide unique insights into intra-group dynamics and intersectional experiences that are not discernible to external/foreign groups and organisations.
2. We introduced other examples of targeted acts against cultural heritage which hold a special value to members of a targeted group on gender grounds, as follows:
Certain types or aspects of cultural heritage may be targeted specifically because they hold a special value to members of a targeted group on gender grounds. For example, destroying a mausoleum that serves as an important gathering site for women, burning down an archive center important to LGBTQI+ persons, closing schools for girls, art and sports institutions for women and girls, women’s baths, women’s parks, women’s magazines, and women radio stations, and destroying musical instruments and institutes of music where women and girls studied music and performed, may constitute gender and cultural persecution.
3. We added other relevant identifiers to the policy's proposed intersectional approach, as follows:
The Office will also pursue an intersectional approach to discrimination to fully reflect the inter-relationship between gender identity, sexual orientation, age and other aspects of an individual’s identity or circumstances, including the identity of family members and other relevant persons (such as race, tribe, ethnicity or social origin, Indigenous status, language, religion or belief, political or other opinion, occupation, marital status, natal status, nationality, culture, wealth, birth, health or other status, disability status, statelessness, status as a refugee or migrant, among other grounds), which may increase their vulnerability to persecution or other crimes, and to assist in planning of the Office’s operational activities.
In paragraph 11 of this Comment, we have included “identity of family members and other relevant persons'' as being a relevant identifier in an intersectional analysis. In the context of Afghanistan, for example, a woman may be persecuted on the basis of gender in combination with her relationship to her family member with a relevant identifier. For instance, if a relevant identifier for persecution is one’s occupation, then the wife of a man who had worked for the US army could be persecuted by the Taliban on the basis of her gender, and, her husband’s profession.
We have included “occupation” as being a relevant identifier in an intersectional analysis. In the context of Afghanistan, for example, women judges, prosecutors, ministers, and human rights lawyers are persecuted on the basis of their gender in combination with their occupation. It is the intersecting combination of gender and occupation which are motivating persecutory acts against them. In the same vein, men in certain occupations, such as prosecutors, teachers and human rights lawyers, are persecuted by the Taliban for advancing women’s rights, for the same reason.
We have included the term “marital status” and “natal status” as being relevant identifiers in an intersectional analysis. In many parts of the world, adolescent girls, unmarried women, divorced women, widowed women and unpartnered women face specific forms of gender persecution or experience the impact of persecutory acts differently from other persons. To elaborate with three examples:
The fact of pregnancy and infertility in a woman might make her uniquely vulnerable to certain forms of persecution. The impact is also uniquely felt, for example, in the case of miscarriage, the loss of an unborn child and its attending traumas.
The fact of virginity in an unmarried woman might make her uniquely vulnerable to sexual violence because the act of “breaking” virginity is prized in many societies due to harmful gender norms. The impact of sexual violence coupled with stigma from the loss of virginity is also uniquely felt.
The fact of being married might make a woman uniquely vulnerable to certain forms of persecution. For example, in the case of a woman being accused of adultery, her marital status might make her uniquely vulnerable to certain forms of punishment such as stoning. The impact is also uniquely felt, in this case sadly by death in many instances.
4. To strengthen the section on the recognition of men and boys as victims of gender persecution, we introduced the customary practice of bacha bazi (play boys) as a form of gender persecution against men and boys.
Perpetrators may also sexually abuse men and boys as a signifier of power in society. The long-standing practice of bacha bazi in Afghanistan is an example. Men and boys are forced to dress as women, dance and entertain usually powerful men (such as police commanders, drug lords, politicians and warlords). Many of the bachas are taken at pre-pubscent or pubescent age and held as sexual slaves for many years. Men and boys are rendered more vulnerable as compared to women and girls, in this specific instance, as a pregnancy (thereby, dishonour) can be avoided in same-sex exploitation. In some cases, families and communities tolerate the abuse of young boys to make some living, or to safeguard their women and girls from being targeted instead. In such contexts, sexual exploitation and rape of men and boys should be understood in connection to strict gender segregation, economic impoverishment, an avoidance measure (to protect women and girls) and a display of power and influence.
5. We advocated for the recognition that targeted acts against civil society could amount to a form of gender persecution in and of itself and as an enabler of other persecutory acts.
Gender persecution can be connected with crimes that take forms other than physical injury to persons, such as attacks on property or protected objects, for example, acts that target places important to the targeted group. Such places may include historical, cultural, religious, economical, educational, social or health centers, offices or other gathering places, places of worship, archives, works of literature or art significant to women, girls or LGBTQI+ communities and may constitute acts of gender persecution. It can also include measures which make it difficult for civil society organisations and collectives led by women, girls or LGBTQI+ communities to legally and practically operate, thereby impeding their right to freedom of expression, association and assembly amongst other basic rights, and their ability to provide services for others in their communities.
This Policy recognises that physical violence is often not necessary to achieve persecutory aims and that gender persecution can encompass subtle and insidious acts as well.
We have included the amendment to paragraph 58 of the Draft Policy to encompass acts which impede civil society organizations and collectives from legally and practically operating. These acts may include legal harassment, bureaucratic obstructions, prohibition against receiving foreign funding, and forced resignation of civil society leadership amongst other acts.
Civil society organisations and collectives are important cultural and social spaces for women, girls or LGBTQI+ communities and therefore key sites of target by perpetrators of gender persecution. The nature and consequences of targeted acts may be less grave when compared to torture, physical beatings, etc. However, when committed over time, and, in the context of other persecutory acts, the targeted acts should be understood as a form of gender persecution in and of itself and as an enabler of other persecutory acts. The amendment captures a “fuller range of criminality” and “unearths a myriad of gender-based acts that may or may not be found within the scope of most statutory crimes” referred to in the preceding paragraph 57 of the Draft Policy.
6. We articulated the need and objective of a gender analysis, to establish criminal responsibility in a way that expressly recognises the role of gender driving the persecutory acts, as follows:
A gender analysis is needed to address gendered aspects of harm in the factual description of criminal conduct that are often obscured, and, highlight and address harms that are often obscured. establish criminal responsibility in a way that expressly recognises the role of gender driving the persecutory acts. Examining rape and other forms of sexual or non-sexual violence in isolation may lead investigators to miss relevant facts or patterns demonstrating their commission as a form of persecution. Therefore, the Office is committed to implementing a gender analysis of crime patterns in order to understand the context, manner of commission, nature of acts, the context and extent and impact of harms suffered by victims when establishing criminal responsibility. Gender analysis should also inform appropriate responses and remedies, including in the design and enforcement of interim remedies and reparations, that enable participation of victims, given that there are strong reasons not to come forward.
7. We advocated for victims of gender persecution to be given access to reparations especially in the case if their gender and intersecting identities were likely the main impediments to their coming forward and participating in ICC proceedings in the first place.
The OTP recognises that the intersecting identities of victims may be the main impediment to their participation in ICC proceedings and their access to justice, for example, in obtaining or preserving evidence or coming forward and registering their cases with the ICC. They may also fall through the cracks during the selection of investigations, for example, if they were victims of investigations which were eventually deprioritised by the OTP.
Therefore, the OTP, through its participation and contribution to the Court’s Outreach program, shall support efforts for victims who are not registered as victims before the Court to obtain reparations beyond the Court’s jurisdiction, such as through victim funds and other non-monetary reparations measures sourced by other entities.
8. To strengthen cooperation with civil society, we also asked for understanding, respect, space and time!
The Office recognises that contributing civil society members are often under-resourced, under-staffed and potentially working under precarious conditions. For example, they may be affected by ongoing conflict, extreme weather, poor electricity or, if they are women, they will likely have high caretaking responsibilities. Many of them are also victims of human rights violations, some of which are ongoing. Recognising this, the Office commits to take various measures to safeguard their safety, physical and psychological well-being and dignity. The Office shall also adopt practices of engagement which give them support, room and time for their contributions to be meaningfully included in the Office’s work.