Closure of Protection Gaps?

On Thursday, June 6, 2024, the German Parliament adopted the Federal Government’s draft bill on the further development of international criminal law as amended by the Committee on Legal Affairs. The ‘Act on the Further Development of International Criminal Law’, which has been analyzed here, also concerns crimes of sexual, reproductive and other gender-based violence. Notably, sexual orientation was added as a ground of the crime against humanity of persecution.

The specificity of persecution on grounds of sexual orientation will hopefully contribute to gender-competent (OTP, GBC Policy para. 76), investigative and prosecutorial strategies that foreground an intersectional perspective (OTP, GBC Policy para. 75) of all international crimes irrespective of whether they involve sexual crimes. Following the leadership of the Special Jurisdiction for Peace in Colombia (Macro Case 02 and 05), such strategies hold the potential to generate ground-breaking international criminal law jurisprudence cognizant of how persons and communities are targeted for and impacted by international crimes because of their gender identity and sexual orientation.

Yet, the legal reform is only as meaningful as its application in practice. Persecution on intersecting grounds, including gender and sexual orientation, need to be consistently investigated from the beginning of any investigation proceeding – underpinned by a profound understanding of gender in accordance with international law and intersectionality. However, past cases have shown that German courts are often reluctant to apply the crime of gender persecution. In order to provide a realistic assessment of the practical impact the amendment may have, this commentary contextualizes persecution on grounds of sexual orientation against the background of the existing case law on persecution on grounds of gender.

Amendment Regarding Persecution on Grounds of Sexual Orientation

Sexual orientation has been inserted as an impermissible ground for the persecution of an identifiable group or community by deprivation or substantial restriction of fundamental human rights. The Committee of Legal Affairs declared their support for the amendment (Explanatory Memorandum of the Legal Committee, p. 15) by explicit reference to the OTP-ICC 2023 Gender-Based Crimes Policy (p. 28) .

According to the German Federal Government, “in recent years […] international criminal law has become increasingly important at both international and national level”. The high number of investigations and prosecutions conducted under the principle of universal jurisdiction and the active personality principle in Germany (UJ Report 2023, p. 52-70), including concerning sexual, gender-based and reproductive crimes, has led to an “increased awareness of the gaps in existing German international criminal law”. However, none of these investigations or prosecutions explicitly considered crimes against persons because of their sexual orientation. For example, while Germany granted international protection to gay and bisexual men who were targeted for arbitrary arrest, torture and murder in Chechnya as of 2017, the criminal investigation by the German Federal Public Prosecutor was discontinued because persecution on gender grounds allegedly did not provide “a sufficiently legal basis”.

Although this interpretation is at odds with international law and the guidance provided by the OTP-ICC, which emphasizes the need to consider gender beyond the traditional binary to include sexual orientation, we maintain that persecution on the ground of sexual orientation will facilitate the specific and prompt investigation of crimes committed against individuals and communities targeted because of their sexual orientation.

With this amendment, Germany clarifies that the persecution on grounds of sexual orientation constitutes a crime against humanity in accordance with the OTP-ICC Policy on Gender-Based Crimes. It can be argued that until now, the understanding of “gender” held by legislators, prosecutors, and judges has not been expansive enough to encompass crimes against persons targeted because of their sexual orientation or non-conforming gender identity. As a consequence, these crimes have not been considered worthy of legal protection or were commonly overlooked, including at the time when the Code of Crimes against International Law (CCAIL) was introduced.

Amendments Regarding Crimes Involving Sexual, Reproductive and Other Gender-Based Violence

Often, though not exclusively, it is sexual or reproductive crimes that lead to the persecution of individuals and communities on the basis of their sexual orientation. It is against this background that we consider recent changes in crimes related to sexual, reproductive and other gender-based violence.

Section 7(1) No 6 and 8(1) No 4 CCAIL respectively concern crimes against humanity and war crimes. Both have been amended through changes and insertions. Previously outlawed offenses have been altered in accordance with international and international criminal law jurisprudence. For example, it is now recognized that forced pregnancy may be perpetrated with the alternative intention to commit other international crimes (echoing final days of Rome Statute negotiations). The crime can further be committed against any person forcibly made pregnant – not solely cis-gender women. Besides, both provisions now contain the additions of sexual assault following the update of the German domestic criminal law, as well as sexualized enslavement and forced abortion.

The amendment reads as follows:

“Whoever commits a sexual assault on another person, sexually coerces or rapes another person, coerces another person into prostitution, sexually enslaves another person, deprives them of the ability to procreate, forcibly impregnates a person with the with the intention of influencing the ethnic composition of a population or committing offences under §§ 6 to 13, or terminates a pregnancy against or without the will of the pregnant person.” [Translated by authors]

It therefore proves to be more progressive than the Rome Statute in that it sets forth a non-binary approach to gender which “is well-rooted in international human rights law” and invites a much needed expansive understanding of gender. Concretely, as per the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Tlaleng Mofokeng, a “non-binary approach to gender understands gender and gender-based violence as a phenomenon that includes matters of sexuality, and violations against persons on the basis of their real or imputed sexual orientation, gender identity and sex characteristics”.

Taking Stock: The Crime against Humanity of Persecution on Gender Grounds in German Jurisprudence

In Germany, several structural investigation proceedings have been conducted under the principle of universal jurisdiction, including in situations in which persons were targeted because of their sexual orientation, as for example in Syria, Iraq, Chechnya and Belarus. We recognize that the amendment in the law is a promising first step but will not be enough on its own. We therefore demand for persecution on grounds of gender and sexual orientation as well as any applicable intersecting grounds to be investigated from the very beginning of any structural or person-specific investigation proceeding. Therefore, we want to contextualize the jurisprudence in relation to successful prosecutions of the crime of persecution in the Sarah O., Jalda A. and Nadine K. case to take stock of existing achievements and build on identified shortcomings.

As is the case internationally, the crime of persecution has not been consistently prosecuted in Germany, with gender in particular often being dismissed in “favor” of other grounds of persecution (as for example in Taha A.-J.). However, in three recent cases, individuals have been found responsible for persecution, including one conviction for the crime of gender-based persecution. In 2021, the Düsseldorf Higher Regional Court convicted Sarah O., including for persecution on the grounds of gender and religion. With its decision, the Court became the first institution worldwide to explicitly issue a judgment on gender-based persecution. In 2022 and 2023, the Islamic State of Iraq and Syria (ISIS) members Jalda A. and Nadine K. were convicted of persecution on religious grounds.

Breakthrough in the Case of Sarah O.

On 16 June 2021, the Düsseldorf Higher Regional Court pronounced the verdict against Sarah O. After 18 trial hearings, the Court found Sarah O. guilty of enslavement and persecution as well as aiding and abetting rape as crimes against humanity under Section 7(1) Nos 3, 6 and 10 of the CCAIL, among other crimes based on the German Criminal Code.

In the context of determining the existence of persecution on the ground of gender, the Senate stated:

“Gender-based persecution may occur in particular when a man and a woman who are members of the same affected group are attacked in different ways or through different forms of violence depending on their gender, e.g. killing the men and raping the women.”

The Court has subsumed ISIS’s actions against Yazidis under this definition. For the crime of gender-based persecution, it thus focuses on the systematic segregation of men and women and relies on the fact that Yazidi men were either forced to convert to Islam or otherwise killed, while Yazidi women were sexually enslaved. However, such an understanding excludes children and leaves open whether the Court’s understanding of gender includes persecution based on sexual orientation. The statement is also indicative of the binary understanding of gender on which the decision is based. The explicit reference to ‘a man and a woman’ serves to illustrate that there is a considerable degree of work to be done in the interpretation of the concept of ‘gender’ within the German judiciary. Whether or not this task is taken up will ultimately have a significant impact on the practical success of including sexual orientation as a new ground for persecution.

Nevertheless, the case of Sarah O. demonstrates the importance of an intersectional perspective to be applied in practice. It therefore has the potential to serve as a precedent for other cases of crimes against humanity committed on the basis of gender or sexual orientation, particularly when committed alongside other grounds of persecution.

Missed Opportunities in the Cases of Jalda A. And Nadine K.

Unfortunately, the Higher Regional Court of Hamburg and Koblenz did not take this opportunity in the cases of Jalda A. and Nadine K. Although the circumstances of both cases were very similar to those of Sarah O., neither of the accused was ultimately convicted of gender persecution.

In Jalda A., the Court argued that since the victims were persecuted primarily because they belonged to the Yazidi religious community, further discrimination based on gender would only be relevant if there was additional persecution on that particular ground. Such could be the case if cis-gender men were killed because they are potential combatants [trial notes by authors].

In the case of Nadine K., gender persecution was initially included in the indictment but the ground of gender ultimately dismissed in “favor” of religious persecution. After the success of the Sarah O. case, this seems to be a clear step backwards in recognising intersectional dimensions of core international crimes. It therefore remains to be seen whether the decision in the case of Sarah O. will remain an isolated incident, or whether the German judiciary will indeed commit to consistently making gender-competent decisions from an intersectional perspective.

A Change of the Codified Law Alone Will Not Be Enough

While the explicit inclusion of persecution on the ground of sexual orientation is to be welcomed, it remains to be seen whether the adaptation of the CCAIL will ultimately lead to progress in practice. Although gender persecution has been in Section 7(10) of the CCAIL since 2002, Sarah O. remains the only person convicted of gender persecution. Given that neither the prosecutors’ or judiciaries’ understanding of “gender” has been sufficiently expansive to consider crimes against persons targeted because of their sexual orientation or non-conforming gender identity within it, there can be no assurance that the newly added ground of sexual orientation, nor an intersectional perspective to it, will actually be applied in practice.

Although Germany has said to be at the forefront of prosecuting international crimes, many of the legal successes of recent years must be seen in a nuanced light. While it is one of the countries with the highest number of trials for international crimes, it is important to consider both the quantity and quality of prosecutions. An analysis of past jurisprudence reveals that there is still a long way to go in the consistent and comprehensive prosecution of crimes of sexual, reproductive, and other gender-based violence and their intersectional dimensions. In particular, gender is often dismissed in “favor” of other “primary” grounds of persecution, and an intersectional perspective (OTP, GBC Policy para. 75) does not yet seem to be understood or applied in German jurisprudence. One of the most important aspects when investigating and prosecuting persecution is to take into account that an act of persecution may be, and is in fact often, based on more than one discriminatory ground. Due to the element of discriminatory intent in the crime of persecution, it is crucial to understand and apply an intersectional harm and impact analysis in order to reflect the full extent of the criminal conduct.

The newly added ground of sexual orientation, if investigated consistently from the beginning of an investigation process, entails the hope that it produces jurisprudence which accounts for the victims targeted due to their sexual orientation. Moreover, having available a more specific law than the International Criminal Court, the new changes to the CCAIL may trigger case law that further supports expansive understandings of gender in international criminal law.

The tools are there – let’s mindfully use them.