On October 21st, 2024, UpRights participated in the “Forum on Gender Persecution Principles”, a symposium organized by the Women’s Initiative for Gender Justice. The event explored implications of gender persecution in Afghanistan and Iran and potential accountability pathways.

During her panel, UpRights’ Co-Director Valérie Gabard offered insights into the Crime Against Humanity of Gender Persecution, emphasizing its ability to pursue justice for crimes related to systemic and deeply rooted discrimination against women and girls in Afghanistan and Iran.

This blogpost builds on the discussion held during the symposium to consider the importance of the crime of gender persecution. Although a relatively recent addition to the framework of international law, gender persecution has the potential to confront systemic gender-based discrimination by recognizing its deep entanglement with other forms of oppression. Its relevance to ensuring accountability and promoting justice lies not only in its capacity to prosecute overt human rights abuses but also in its ability to reflect the intersectional nature of oppression where gender discrimination intertwines with political, religious, or societal forms of persecution. By examining the differing yet similarly entrenched discriminations in Afghanistan and Iran, this blogpost illustrates how gender persecution can help to achieve accountability and enable an approach to legal analysis that captures the multi-layered motives of oppression.

The emerging importance of gender persecution can be seen, for example, in the commitment of successive ICC Prosecutors focusing their attention to this crime, the emerging jurisprudence of the Court, and the conclusions reached by the Independent International Fact-Finding Mission on the Islamic Republic of Iran that crimes against humanity of gender persecution may have been committed in the context of the “Women, Life, Freedom” movement, open new perspectives and avenues for pursuing accountability.

Gender Persecution: Legal Definition and Framework

Since its adoption in the Rome Statute of the International Criminal Court (ICC), the crime against humanity of gender persecution offers the possibility to address entrenched discrimination and pursue prosecution of human rights violations based on gender. This framework is particularly relevant in contexts where such gender discrimination is embedded in societal norms, policies, and legal systems.

Gender persecution is defined at the ICC as the severe deprivation of fundamental rights contrary to international law against any identifiable group or collectivity on gender grounds in connection with any other underlying act of crime against humanity or any crime within the jurisdiction of the Court.

Like any other crime against humanity, it must be shown that the persecutorial acts are committed as part of a widespread and systematic attack directed against any civilian population pursuant to, or in furtherance of, a State or organizational policy.

While the Rome Statute defines gender as “the two sexes, male and female, within the context of society”, the International Law Commission has not included this definition in its Draft Articles on Prevention and Punishment of Crimes Against Humanity. In its Policy on Gender Persecution of 2022, the ICC Prosecutor defined gender rather as “sex characteristics and social constructs and criteria used to define maleness and femaleness, including roles, behaviors, activities and attributes” and the limited jurisprudence available from the ICC appears to align with the Prosecutor’s definition.

Gender persecution was recognized as a crime against humanity by Article 7(1) of the Rome Statute, constituting was the first codification of the crime under international law. Persecution has long been recognized as an underlying act of crimes against humanity under customary international law, and the adoption by the international law commission of the Rome Statute definition of gender persecution in the draft articles for a future treaty on crimes against humanity weighs in favor of the view that it reflects customary international law.

While the Rome Statute was adopted in 1998, there has been limited jurisprudence from the ICC so far on the crime of gender persecution. The first Trial judgement with a charge of gender persecution was delivered in late June in the case of Al-Hassan in relation to the situation in the Northern city of Timbuktu in 2012. While Al-Hassan was acquitted on the charge of gender persecution, the crime of gender persecution itself was considered established by majority. Indeed, as part of the ruling, a majority of Judges also recognized that the persecution was based on several grounds – in this case religious and gender grounds – that Judge Prost described in its individual opinion as “inseparable” acknowledging an intersectional approach to the crime of gender persecution.

Gender Persecution on the Ground: Afghanistan and Iran

Since the Taliban’s takeover in August 2021, the situation of women and girls in Afghanistan has worsened dramatically. The Taliban’s policies have systematically erased women and girls from public life, barring them from education, employment, and freedom of movement. Resistance to these oppressive measures has been met with intimidation, persecution, and violence by the Taliban authorities.

In Iran, following the death of Mahsa Amini in September 2022, protests erupted in response to the country’s compulsory veiling laws and other political grievance against the Iranian government. These protests were met with excessive force by Iranian security forces, resulting in the deaths of hundreds of civilians – men, women, girls, boys and LGBTQIA+ individuals – and the imprisonment of thousands.

In detention, protesters or persons detained in relation to the 2022-2023 protests have been subjected to torture and inhumane conditions in detention. The information available suggests a pattern of sexual violence specifically targeting women and girls. All these acts have taken place in the context of a discriminatory legal framework against women, girls and LGBTQIA+ individuals and a strengthening of restrictions imposed on women and girls, notably on the implementation of the compulsory veiling.

Gender Persecution as a Tool to Address the Systemic and Societal Discrimination Faced by Women, Girls, and LGBTQIA+ Individuals

The specificity of persecution is that it allows for severe human rights violations committed on a discriminatory basis to qualify as crimes against humanity. Such violations include those to the right to life, freedom from arbitrary arrest and detention, the prohibition of torture and cruel treatment, the right to liberty, and freedom of movement.

But more importantly, acts of persecution are not limited to acts that otherwise constitute crimes against humanity or involve the use of physical violence.

They can include infringements such as the denial of education, public services, employment, of the right to due process, or the destruction or seizure of property.

In both the context of Afghanistan and Iran, gender persecution allows to encompass the systemic and societal discriminations against women and girls and LGBTQIA+ people.

For instance, in the context of Afghanistan, it is clear that Taliban’s policies banning education for girls are inconsistent with the right to education as reflected in international human rights treaties including the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the CEDAW.

The same would hold true for all the restrictions imposed by the Taliban on women and girls’ daily life, which individually or collectively undeniably amount to severe human rights violations specifically directed at women and girls.

In Iran, the crime of persecution stems instead from severe human rights violations related to the suppression of protests—acts that include murder, torture, rape, and other forms of inhumane treatment—combined with systemic infringements on women’s and girls’ rights entrenched within the national legal framework. These violations include restrictions on freedom of thought, conscience, religion, expression, movement, and the right to privacy, as well as the right to participate in public affairs and pursue economic, social, and cultural development as outlined in Article 1 of the ICESCR.

As a result, gender persecution addresses a broad range of discriminatory practices, providing a powerful tool to combat both overt violence and restrictive societal norms that oppress women and girls.

Intersectionality as way to reflect more nuance realities and the multiple and intersecting nature of the targeting of women and girls

In the Afghanistan’s context, the discriminatory intent of the perpetrators, namely the targeting of women of girls because of their gender is not controversial. All the severe violations of fundamental human rights recorded stemmed from policies that explicitly identify women as the group targeted by such limitations and restrictions. The circumstances surrounding the acts of persecution also show that the Taliban’s acted with the specific intent to target Afghan women and girls on the basis of their gender.

Iran presents a much more nuanced context where political and gender persecution intersect. Civilian victims are not only targeted for defying gender norms but are also perceived as political opponents when they challenge the regime’s ideologies. The regime’s response to these challenges includes both political and gender-based discrimination. The intersectionality of these grounds allows for a more nuanced legal analysis, recognizing that persecution can be motivated by multiple discriminatory factors, including both political beliefs and gender.

Gender persecution, in this context, serves as a flexible tool to capture these layered forms of oppression and accurately reflect the regime’s intent to target those who defy both political and gendered norms.

Conclusion

While the situations faced by women and girls in Afghanistan and Iran differ significantly, both can be understood through the lens of gender persecution. UpRights has been collaborating with partner organizations to deepen the understanding of the situation of women and girls in both countries and show that it can, in both cases, qualified as the crime against humanity of gender persecution.

In March 2023, UpRights provided legal drafting support for a report published by Amnesty International and the International Commission of Jurists, titled The Taliban’s War on Women, which provided a comprehensive legal analysis of the Taliban’s policies and crimes based on Amnesty International’s documentation. This report concluded that the severe human rights violations imposed on women’s and girls’ rights in Afghanistan amount to crimes against humanity, particularly gender persecution.

UpRights also worked alongside HRA and two other organizations to file a submission to the Independent International Fact-Finding Mission on the Islamic Republic of Iran (FFMI) in December 2023. The submission argued that human rights violations against women, girls, and LGBTQIA+ individuals, combined with the violent repression of the protests in the context of the “Women, Life, Freedom” movement that started in September 2022, constitute crimes against humanity, specifically gender and political persecution. The FFMI’s final report concurred with this analysis, recognizing that there are reasonable grounds to believe that gender persecution as a crime against humanity has been committed by some members of the Iranian political and security apparatus since the beginning of the “Women, Life, Freedom” movement.

At UpRights, we believe that the crime of gender persecution is an essential legal tool for addressing systemic and embedded discrimination against women and girls. While a lot remains to be done to fully utilize the potential of gender persecution, the understanding of the crime by the ICC Prosecutor summarized in its policy paper on the crime of gender persecution of 2022 and the limited ICC jurisprudence available suggests that gender persecution is by definition sufficiently flexible to offer a promising avenue for international and national criminal tribunals to address the severe violations of rights suffered by women, girls, and LGBTQIA+ individuals in different contexts, bringing us closer to achieving accountability and gender justice.

Photo Credits for Picture #1: Women’s Initiative for Gender Justice