Maya Misikir
In January, the International Criminal Court’s chief prosecutor applied for warrants to arrest the Taliban’s supreme leader and the chief justice of Afghanistan. The grounds for the warrants: the crime against humanity of persecution on gender grounds. It was an overdue decision, but one that rights group Amnesty International said gave “hope, inside and outside the country to Afghan women, girls, as well as those persecuted on the basis of gender identity or expression”.
Treating gender-based abuses as distinct crimes under international law is a relatively recent phenomenon. Before the ICC was first established, ad hoc hoc tribunals established for war crimes in the former Yugoslavia and genocide in Rwanda laid the grounds for the recognition of sexual and gender-based violence crimes including rape as a crime against humanity. However, definitions varied between tribunals (including for what constitues rape), and sexual crimes were not enumerated as a stand alone, but came with other charges.
When the International Criminal Court was first established 23 years ago this July, it recognized and solidified into international legal canon crimes that were often overlooked or minimized by earlier ad hoc tribunals.
Today, the ICC explicitly recognizes sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and gender-based persecution as distinct crimes. Whereas past international criminal tribunals focused on the defendants, limiting the role of the victim to that of a witness, the ICC sees victims as key participants in criminal proceedings and acknowledges their right to reparations.
The inclusion of these crimes under the Rome Statute that established the ICC is the result of the tireless work of gender justice advocates like the Women’s Caucus for Gender Justice, which was present at the negotiating tables when the ICC was being established. The Caucus was the result “of a last minute organizing effort of a small group of women human rights activists”, according to the organisation. Their work was to make sure that gender justice would be included in the ICC framework and function.
The ICC’s first conviction for sexual and gender-based crimes was in 2016, 14 years after it came into being. This first conviction, against a Congolese former vice-president accused of failing to prevent the rebels under his command from killing and raping, was overturned two years later on the grounds that he could not be held responsible for their actions. In 2019, Congolese warlord Bosco Ntaganda was convicted of a series of crimes incuding rape and sexual slavery, with the court ruling that child soldiers could be considered victims of the war crime of sexual slavery even though they were fighting on the same side.
In 2021, the ICC made its first conviction for forced pregnancy as a crime against humanity in a case against a leader of the Ugandan rebel group the Lord’s Resistance Army. Dominic Ongwen was charged on 70 counts – the most in the court’s history – 19 of them sexual and gender-based crimes.
The ICC’s first prosecution for gender-based persecution was brought in 2019 as part of a wider case against Al Hassan Ag Abdoul Aziz, a leader of an Islamic police force in Mali. In 2024, he was found guilty of war crimes and crimes against humanity, but acquitted of crimes against humanity on the basis of gender on the grounds that he was acting under duress. The ruling provoked outrage among Malian victims of sexual crimes.
The ICC has been critised for its slow and lengthy process, which has an abysmal rate of convictions. In its 23-year history, only 11 cases have resulted in convictions, and just two of those have included successful convictions for sexual and gender-based crimes. Only three convictions related to international crimes, the rest were tampering with evidence (more procedural than substantive).
The work of the ICC has been impacted by the role of the court’s major actor: the chief prosecutor. In 2012, Gambian lawyer Fatou Bensouda became the ICC’s first female chief prosecutor. During her nine-year tenure, she introduced the court’s first dedicated policy on sexual and gender-based crimes. However, as Australian international criminal law expert Indira Rosenthal writes in OpinoJuris, this gender lens was often not in play even during Bensouda’s time, specifically in preliminary examinations. The policy should be applied in the process of selection and not just prosecution of cases, Rosenthal argues.
There are also concerns that the ICC has prioritised war crimes over gender-based crimes.
The ICC’s recent decision to apply for warrants against the Taliban brings up questions about the wider adequacy of the laws that cover crimes against women. In 2023, a movement led by Afghan and Iranian women’s rights activists began with the slogan ‘End Gender Apartheid’, a term that is not yet legally recognized. The U.N. special rapporteur on the situation of human rights in Afghanistan told the Human Rights Council last year that the Afghan women he speaks to consider the term gender apartheid “accurately describes the totality of the distinct and transgenerational harms committed against them”.
The credibility of the court has come into question over the years, and it has faced criticism beyond its work on the protection of women’s rights globally. Three of the five permanent members of the U.N.’s Security Council – China, Russia, and the U.S. – are not ICC members. This limits the reach of the court, and has a direct impact on investigations that can be carried out at the ICC, as one of the three mechanisms by which investigations are launched is through the recommendations of the Security Council. More recently, the U.S. has sanctioned ICC staff over arrest warrants issued against the Israeli prime minister and other officials.
The ICC’s history of convicting mostly African war criminals has also drawn continued criticism from leaders of the continent. In 2017, the African Union adopted a resolution calling for its members to leave the ICC. Despite this, only two countries have left the ICC since it started: the Philippines and Burundi. Last month, Hungary announced its withdrawal.
More recently, the ICC’s current Chief Prosecutor, Karim Khan, is on leave, facing serious allegations of sexual misconduct, which he denies. How the ICC deals with this can go a long way to ensure that trust is not lost in the leadership and the court.
The ICC is as strong as the commitment of its member signatory countries, which are obligated to cooperate. Yet that doesn’t always happen. The fact that the ICC is unable to enforce arrest warrants in powerful states calls its credibility into question.
Yet the ICC, known as the court of last resort, is the only permanent court today that can pursue accountability for crimes at an international level .
When African states were considering leaving the ICC in 2017, one argument presented was that it would be “far better for member states to stay in the court and advocate reforms, rather than bolting and leaving millions on the continent unprotected”.
The importance of the ICC in light of increasing conflicts and the spread of sexual and gender-based violence in the context of war is an added incentive to find ways to make it work better.
