On 26 June 2024, the International Criminal Court (ICC) convicted Mr Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (‘Al Hassan’) on eight counts of war crimes and crimes against humanity committed in Timbuktu, Mali in 2012 – 2013. While a welcome verdict for many, Al Hassan was not convicted of any gender-based crimes, including gender persecution. This was the first time in the Court’s history that gender persecution had been litigated at trial, and this recent judgment is the first by a Trial Chamber to adjudicate the crime.
Background to the gender persecution charge
In 2018 the Office of the Prosecutor (OTP) issued an arrest warrant for Al Hassan for 13 charges, including one count of persecution on gender and religious grounds. The warrant related to his role as de facto chief of the Islamic police during Timbuktu’s 2012 occupation by two Islamist groups, Ansar Dine and Al Qaeda in the Islamic Maghreb (AQIM). The OTP’s charge confirmation brief identified the female population of Timbuktu as the subject of gender persecution, arguing they were targeted ‘because of their gender’. Such targeting was ‘motivated by the discriminatory views of members of the [Islamist] groups and individuals on the role and behaviour of women and girls’.
In 2019, for the first time, a Pre-Trial Chamber confirmed the charge of gender persecution. The decision comprehensively engaged with the myriad complex aspects of the crime, including its explicit link to international human rights law. It also endorsed gender as a social construction and touched on intersectionality – both significant steps in international criminal law jurisprudence. As I argue elsewhere, this decision provided the ICC’s first nascent jurisprudence on the crime.
Gender persecution at trial
Over the 18 months of the OTP’s case at trial, women gave powerful evidence of being targeted based on their gender: of being arrested and forced into a car by armed men because of a fallen veil; of being flogged for being greeted by a man other than their husband; of being taken from their homes, forcibly married, and held as sexual slaves. Al Hassan’s defence lawyers strongly contested the charge, characterising the allegations as possible human rights violations which fall far short of gender persecution, while heavily cross-examining the credit of victims.
Gender persecution, adjudicated
Though Al Hassan was acquitted by the majority of gender persecution (2-1), frustratingly there is little commonality across the three judges’ opinions. Judge Akane in her separate and partly dissenting opinion simply found the evidence of gender persecution insufficient for a conviction [95]. Conversely, Judges Prost and Mindua in their majority judgment considered that [1566]:
Ansar Dine/AQIM members specifically targeted local women and girls by reason of their gender, depriving them of some of their fundamental rights because of the particular roles, expectations and conduct Ansar Dine/AQIM assigned to their gender.
However, Presiding Judge Mindua ultimately found in his separate opinion that Al Hassan acted under duress, a complete defence in criminal law. Therefore, only Judge Prost, in her separate opinion, would have convicted Al Hassan of the crime, finding that such a conviction ‘would have more accurately recognised the harm suffered by female victims in Timbuktu at the time’ [26]. Though Al Hassan was convicted of persecution on religious grounds (itself a first at the ICC), Judge Prost found that gender and religion were ‘two inseparable grounds’, and that a conviction ‘should reflect the multiple and intersecting nature of the targeting of women and girls by Ansar Dine /AQIM’ [26].
What next?
Will the OTP appeal? Based on a statement by the Prosecutor released after the judgment, that door appears to be wide open: ‘The Office will now carefully study the judgment, including with respect to the gender persecution charge…with the view to deciding any potential further action.’
The parties have until the end of July to appeal. Al Hassan will then be sentenced on 28 August 2024, where Judge Akane has already been recused. Meanwhile, the OTP is litigating two other trials where gender persecution is charged (the Said and ‘Ali Kushayb’ cases), with an arrest warrant just released for Malian national and Ansar Dine leader Iyad Ag Ghaly. No longer can it be said that the crime of gender persecution at the ICC is ‘gathering dust’.
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