Gender Justice Denied at the ICC

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 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 chief of Islamic police during AQIM’s occupation, was charged with 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 Al Hassan of all sexual and gender-based crimes committed during his nine-month reign of terror.

 A Controversial and Disappointing Verdict

The judgment was confusing and strongly criticized by scholars, who condemned the outcomes regarding duress, forced marriage, and gender persecution. Countless women and girls subjected to sexual and other gender-based violence under Al Hassan’s leadership perceived these acquittals as the ICC “abandoning women”.

A recent blog post on the forced marriage aspect of the judgment detailed legal errors in some of the judges’ decisions and concluded these were “ripe for appeal”. A contemporaneous post on gender persecution likewise identified “appealable issues” with the potential “for judicial corrections on appeal”. These critiques discussed Judge Mindua’s (mis)application of the duress defense in acquitting Al Hassan but focused on Judge Akane’s oversight of the contextual elements and impact of Al Hassan’s 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 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 on the vitiation of consent in coercive environments like war or occupation and ignored the ICC’s forced marriage jurisprudence settled by the recent Ongwen Appeals Judgment.

Appeal Hopes Shattered 

Critics of the Al Hassan 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 “[t]he gendered dimension of the charges, affecting in particular women and girls in Timbuktu, has always been central to the Prosecution’s view of this case,” but admitted that the “verdict was controlled by Judge Akane’s narrower approach” (para. 4), which the Prosecution did not necessarily agree was correct (para. 8).

Nevertheless, the Prosecutor noted 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’s findings that girls and women consented to the jihadi 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.

The appeal notice stated that “the Prosecution does not consider that debating the intricacies of Judge Akane’s minority view is the most effective and expeditious way to proceed in framing its appeal” (para. 8). 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. This appeal was already well underway. While the lengthy process of international justice has been criticized, there is a significant difference between the time required to lay charges in a complex case like the prosecution of atrocities against the Rohingya and the sudden rush here to close a case in its appeal stage.

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 and Palestine, 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’s Policy on Gender-Based Crimes: “Accountability can also be inhibited by inconsistent commitment or ability of justice actors to treat gender with the same rigor and seriousness as other crimes” (p.1).

Many hoped that errors regarding sexual and gender-based crimes would be raised by victims’ 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, noting that “Mr. Hassan asks for forgiveness”.

Guilty Pleas and Apologies for Mass Atrocities? 

The Prosecutor’s statement here raises multiple concerns, including its implication that a convicted perpetrator of the most serious international crimes – genocide, crimes against humanity, war crimes, and aggression – 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.

Moreover, guilty pleas, 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 Plavšić freely admitted that her admission of guilt at the ICTY was given only to get a lighter sentence (see Simic and Hola), and Duch’s qualified statements of apology at the Extraordinary Chambers in the Courts of Cambodia (ECCC) were negated when his defense lawyer asked that Duch be fully acquitted (see Hinton, and Bizot). While some perpetrators may exhibit what is perceived as genuine remorse (see Erdemović), guilty pleas and apologies must be carefully scrutinized for ulterior motives.

Exclusion of Victims’ Voices and Actions Contrary to the OTP’s Own Policies 

The Office of the Prosecutor’s (OTP) dismissal appears to transgress its commitment to communicate with victims’ representatives “should it decide not to appeal issues relevant to [gender-based crimes]” (para. 141). The victims expressed shock and betrayal upon learning of the appeal’s discontinuance on December 17, yet were given less than two weeks 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 since the Prosecutor had broken his promises to them, he should reconsider his decision and engage actively with them.

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

The Prosecutor concluded his statement on withdrawing the appeal with these words: “My Office remains committed to prioritizing the investigation and prosecution of gender-based crimes, consistent with its established policies.” This statement appears disingenuous in the context of the seemingly cavalier treatment of victims of such crimes in dropping the Al Hassan appeal. Devaluing female victims’ justice claims may delegitimize the ICC if relative impunity for gender-based crimes continues to be tolerated. Such patriarchal decisions may decrease victims’ willingness to offer their contributions upon which the ICC’s raison d’être depends—delivering justice, but rarely to them.

A genuine commitment to prosecuting gender-based crimes per the OTP’s Policy on Gender-Based Crimes 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’s misunderstanding of Ansar Dine and AQIM’s gender-based crimes. A comprehensive appeal would have also complied with the OTP’s own policy of applying key principles regarding gender-based crimes “consistently at every step of the Office’s work” (para. 99) and “to actively pursue opportunities during the appeal adding value to the submissions made at trial on [gender-based crimes]” (para 141).

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

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

Finally, and most importantly, the judicial and prosecutorial decisions in the Al Hassan case betray the most vulnerable in conflict zones – female children and women – 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.