{"id":24200,"date":"2025-03-04T08:00:42","date_gmt":"2025-03-04T07:00:42","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=24200"},"modified":"2025-03-06T19:23:01","modified_gmt":"2025-03-06T18:23:01","slug":"gender-justice-denied-at-the-icc","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/gender-justice-denied-at-the-icc\/","title":{"rendered":"Gender Justice Denied at the ICC"},"content":{"rendered":"

The International Criminal Court’s (ICC) June 2024 judgment <\/a>in Al Hassan<\/em><\/a> exemplifies the long-entrenched patriarchal biases endemic to international criminal law that ignores or minimizes systematic discrimination and violent crimes that specifically target and disproportionately harm women and girls. Recent feminist progress in ending impunity and advancing justice for victims of sexual and gender-based violence was reversed by the verdict on Al Hassan’s crimes following the 2012 invasion of Timbuktu by Ansar Dine and Al Qaeda in the Magreb (AQIM) forces in Mali. Al Hassan, the militant de facto<\/em> chief of Islamic police during AQIM’s occupation, was charged with<\/a> multiple war crimes and crimes against humanity, including forced marriage, rape, sexual slavery, and the first-ever prosecution for persecution on gender grounds. Expectations that recent advances in gender justice at the ICC would continue in this landmark case evaporated when the Trial Chamber acquitted<\/a> Al Hassan of all sexual and gender-based crimes committed during his nine-month reign of terror.<\/p>\n

\u00a0A Controversial and Disappointing Verdict<\/strong><\/p>\n

The judgment was confusing<\/a> and strongly criticized by scholars, who condemned the outcomes regarding duress<\/a>, forced marriage<\/a>, and gender persecution<\/a>. Countless women and girls subjected to sexual and other gender-based violence under Al Hassan\u2019s leadership perceived these acquittals as the ICC \u201cabandoning women\u201d<\/a>.<\/p>\n

A recent blog post on the forced marriage aspect of the judgment detailed legal errors in some of the judges\u2019 decisions and concluded these were \u201cripe for appeal<\/a>\u201d. A contemporaneous post on gender persecution likewise identified<\/a> \u201cappealable issues\u201d with the potential \u201cfor judicial corrections on appeal\u201d. These critiques discussed Judge Mindua\u2019s (mis)application of the duress defense in acquitting Al Hassan but focused on Judge Akane\u2019s oversight of the contextual elements and impact of Al Hassan\u2019s conduct, effectively absolving him from accountability for grave gender-based crimes. Judge Akane demonstrated a shocking lack of awareness of the global and high-level official recognition <\/a>that armed forces specifically target girls and women for sexual and gendered violence to control civilians and advance strategic aims. She also overlooked well-recognized jurisprudence<\/a> on the vitiation of consent in coercive environments like war or occupation and ignored the ICC\u2019s forced marriage jurisprudence settled<\/a> by the recent Ongwen<\/em><\/a> Appeals Judgment<\/a>.<\/p>\n

Appeal Hopes Shattered\u00a0<\/strong><\/p>\n

Critics of the Al Hassan<\/em> verdict, including victims of sexual and gender-based violence perpetrated by Al Hassan, hoped an appeal would overturn his acquittal for these crimes. Unfortunately, this hope was short-lived. In his September 2024 notice of appeal, the Prosecutor expressed that \u201c[t]he gendered dimension of the charges, affecting in particular women and girls in Timbuktu, has always been central to the Prosecution\u2019s view of this case,\u201d but admitted that the \u201cverdict was controlled by Judge Akane\u2019s narrower approach\u201d (para. 4<\/a>), which the Prosecution did not necessarily agree was correct (para. 8<\/a>).<\/p>\n

Nevertheless, the Prosecutor noted<\/a> his intention to only appeal against the application of the defenses of duress and mistake of law by Judge Mindua, and not against the findings of Judge Akane. This meant that Akane\u2019s findings<\/a> that girls and women consented to the jihadi<\/em> marriages, which she viewed as “negotiated” despite the use of weapons, rape, and torture to effectuate them, would stand, as would her view that violence against women was not part of the common purpose of the armed groups committing the crimes.<\/p>\n

The appeal notice stated that \u201cthe Prosecution does not consider that debating the intricacies of Judge Akane\u2019s minority view is the most effective and expeditious way to proceed in framing its appeal\u201d (para. 8<\/a>). Yet, expediency is hardly an appropriate standard upon which the ICC should base major charging, trial process, and appellate decisions. Grave crimes against girls and women should not be eschewed in ICC deliberations even if the court faces increasing caseloads and continued underfunding<\/a>. This appeal was already well underway. While the lengthy process of international justice has been criticized<\/a>, there is a significant difference between the time required to lay charges in a complex case<\/a> like the prosecution of atrocities against the Rohingya<\/a> and the sudden rush here to close a case in its appeal stage.<\/p>\n

The Al Hassan decision here suggests a prejudicial disregard of female victims, who had awaited justice for over a decade only to have their rights and status as victims extinguished by the appeal’s withdrawal, effectively disqualifying them from reparations. The OTP’s conduct suggests a willingness to sacrifice cases centered on sexual and gender-based violence for higher profile expedited cases like those of Ukraine<\/a> and Palestine<\/a>, cases wherein similar crimes were also well-documented but excluded from charges. Such actions perpetuate the sexist neglect of gender-based crimes entrenched in legal systems and contribute to the problem specified in the OTP\u2019s Policy on Gender-Based Crimes<\/a>: \u201cAccountability can also be inhibited by inconsistent commitment or ability of justice actors to treat gender with the same rigor and seriousness as other crimes\u201d (p.1).<\/p>\n

Many hoped that errors regarding sexual and gender-based crimes would be raised by victims\u2019 representatives in the appeals process and that if the ruling on duress and mistake of law were reversed, Al Hassan would ultimately be convicted of his gender-based crimes. But in December 2024, the Defense and Prosecution suddenly discontinued their appeals<\/a>, noting that “Mr. Hassan asks for forgiveness”<\/u>.<\/p>\n

Guilty Pleas and Apologies for Mass Atrocities?\u00a0<\/strong><\/p>\n

The Prosecutor\u2019s statement<\/a> here raises multiple concerns, including its implication that a convicted perpetrator of the most serious international crimes \u2013 genocide, crimes against humanity, war crimes, and aggression \u2013 can avoid a prosecutorial appeal merely by withdrawing their defense appeal, and spontaneously asking forgiveness (of survivors of mass atrocities living a continent away from the courtroom). Such requests for forgiveness should not constitute grounds for sudden termination of pending appeals, which fails to hold the perpetrator accountable for (the entirety and gravity of) his crimes, especially without the victims themselves explicitly granting such absolution.<\/p>\n

Moreover, guilty pleas,<\/a> statements of remorse, or requests for forgiveness are not necessarily genuine and are used by perpetrators as a manipulative tool to secure lower sentences. For example, Biljana Plav\u0161i\u0107<\/a> freely admitted that her admission of guilt at the ICTY was given only to get a lighter sentence (see Simic and Hola<\/a>), and Duch<\/a>\u2019s qualified statements of apology<\/a> at the Extraordinary Chambers in the Courts of Cambodia (ECCC) were negated when his defense lawyer asked that Duch be fully acquitted (see Hinton<\/a>, and Bizot<\/a>). While some perpetrators may exhibit what is perceived as genuine remorse (see Erdemovi\u0107<\/a>)<\/u>, guilty pleas and apologies must be carefully scrutinized for ulterior motives.<\/p>\n

Exclusion of Victims’ Voices and Actions Contrary to the OTP’s Own Policies\u00a0<\/strong><\/p>\n

The Office of the Prosecutor\u2019s (OTP) dismissal appears to transgress its commitment to communicate with victims\u2019 representatives \u201cshould it decide not to appeal issues relevant to [gender-based crimes]\u201d (para. 141<\/a>). The victims expressed shock and betrayal upon learning of the appeal’s discontinuance on December 17, yet were given less than two weeks<\/a> to file their responsive observations. Their submissions strenuously objected to the banalization of and impunity for sexual crimes this sudden withdrawal embodied for the victims, and stressed that<\/a> since the Prosecutor had broken his promises to them, he should reconsider his decision and engage actively with them.<\/p>\n

ICC jurisprudence, anchored in Rome Statute provisions as well as international human rights standards<\/a>, has established victims\u2019 right to present their views and concerns directly to ICC judges, including Appeals Judges<\/a>, as victims\u2019 needs and interests vary from those of the prosecution and defense. This is particularly true in reparations proceedings. Female victims in Al Hassan<\/em> participated at their own risk and cost<\/a>, providing evidence key to Al Hassan\u2019s other convictions, but were effectively denied the chance to seek justice on appeal for sexual and gender-based violence against them. Survivors\u2019 forgiveness of Al Hassan was simply assumed by the Prosecutor granting his request, but the victims viewed this late-stage contrition as insincere<\/a> and vehemently disagreed with the Prosecutor\u2019s acceptance of it<\/a>.<\/p>\n

The Prosecutor concluded his statement<\/a> on withdrawing the appeal with these words: \u201cMy Office remains committed to prioritizing the investigation and prosecution of gender-based crimes, consistent with its established policies.\u201d This statement appears disingenuous in the context of the seemingly cavalier treatment of victims of such crimes in dropping the Al Hassan<\/em> appeal. Devaluing female victims\u2019 justice claims may delegitimize the ICC if relative impunity for gender-based crimes continues to be tolerated. Such patriarchal decisions may decrease victims\u2019 willingness to offer their contributions upon which the ICC\u2019s raison d\u2019\u00eatre<\/em> depends\u2014delivering justice, but rarely to them.<\/p>\n

A genuine commitment to prosecuting gender-based crimes per the OTP\u2019s Policy on Gender-Based Crimes<\/a> would have involved proceeding with an appeal to (1) ensure Al Hassan was convicted of the gendered crimes he committed and (2) overturn the harmful precedent produced by the trial judgment that includes Judge Akane\u2019s misunderstanding of Ansar Dine and AQIM\u2019s gender-based crimes. A comprehensive appeal would have also complied with the OTP\u2019s own policy<\/a> of applying key principles regarding gender-based crimes \u201cconsistently at every step of the Office\u2019s work\u201d (para. 99) and \u201cto actively pursue opportunities during the appeal adding value to the submissions made at trial on [gender-based crimes]\u201d (para 141).<\/p>\n

Yet the OTP did none of this, ignoring the Basic Principles and Guidelines<\/a> on victims\u2019 rights. The Prosecutor\u2019s decision goes against consensus recognition<\/a> of \u201cthe need for a survivor-centered approach in preventing and responding to sexual violence in conflict and post-conflict situations\u201d, which has led to widespread advocacy for its inclusion in the draft crimes against humanity convention<\/a>. In discontinuing its appeal, the OTP has also disregarded its own Policy on Gender-Based Crimes<\/a> to \u201cintegrate a survivor-centered and trauma-informed approach\u201d in working with victims of sexual and gendered violence.<\/p>\n

In yet another contravention of OTP policy<\/a>, the retraction of this appeal does not \u201ccontribute to the development of international jurisprudence and best practice regarding accountability for [gender-based crimes] at the ICC and beyond\u201d (p. 2). The OTP\u2019s conduct instead undermines Ongwen<\/em>\u2019s positive jurisprudential progress<\/a> on forced marriage and denies victims a historic first ICC conviction and reparations for gender persecution.<\/p>\n

Finally, and most importantly, the judicial and prosecutorial decisions in the Al Hassan<\/em> case betray the most vulnerable in conflict zones \u2013 female children and women \u2013 by devaluing the gravity of atrocities these victims endured. Rolling back feminist advances in criminalizing sexual and gender-based violence not only discounts the victims, but also jeopardizes their cooperation that is indispensable to the core mission of the ICC.<\/p>\n","protected":false},"excerpt":{"rendered":"

The International Criminal Court’s (ICC) June 2024 judgment in Al Hassan exemplifies the long-entrenched patriarchal biases endemic to international criminal law that ignores or minimizes systematic discrimination and violent crimes that specifically target and disproportionately harm women and girls. Recent feminist progress in ending impunity and advancing justice for victims of sexual and gender-based violence […]<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[3857,3823,7061],"authors":[7562,7561],"article-categories":[3572],"doi":[],"class_list":["post-24200","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-gender","tag-icc","tag-sexual-violence","authors-kathleen-m-maloney","authors-melanie-obrien","article-categories-symposium"],"acf":{"subline":"Problematic Judicial and Prosecutorial Decisions in the Al Hassan Case"},"meta_box":{"doi":"10.17176\/20250305-000806-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/24200","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=24200"}],"version-history":[{"count":3,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/24200\/revisions"}],"predecessor-version":[{"id":24276,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/24200\/revisions\/24276"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=24200"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=24200"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=24200"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=24200"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=24200"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=24200"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}