The most controversial crime of international concern? : An analysis of gender-based persecution under international criminal law

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Juridicum

The most controversial crime of international concern?

An analysis of gender-based persecution under international criminal

law

Hanna Isaksson

HT 2019

RV101A, Rättsvetenskaplig masterkurs med examensarbete, 30 högskolepoäng Examinator: Cristina Trenta

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Abstract

Through the establishment of the Rome Statute of the International Criminal Court, gender-based persecution was incorporated as a crime and is today regarded as one of the most serious crimes of international concern. However, the inclusion of gender was subject for long and intensive debates, e.g. with regards to the very definition and protection of LGBTIQ persons. Since gender-based persecution has never been tried before an international criminal court or tribunal, no explicit guidance exists in relation to the application and interpretation of the crime. In the light of these question marks, the purpose with this thesis is to analyze the development and current status of gender-based persecution as a crime against humanity under international criminal law such as the challenging aspects of gender-based persecution and if such challenges results in the gap of the protection of certain groups. Contributions from international refugee law will also be analyzed as well as the recent proposed convention on crimes against humanity by the international law commission.

This thesis concludes that the most challenging aspects of gender-based persecution is the very definition and how the link between persecution and gender should be established. The undefined definition of gender risks to exclude protection of primarily LGBTIQ persons, even though the material provided for in the thesis rather speaks for inclusion than exclusion. The existence of sexual- and gender-based violence exceptionalism risks to exclude protection of victims of these crimes, primarily women, since there is a tendency to ignore the discriminatory purpose behind sexual violence. There is a risk that the practical application of the crime results in a gap in the protection of victims of sexual violence. Even if the prohibition of analogy applies, this thesis argues that the ICC still can draw inspiration from both international refugee law and the proposed convention on crime against humanity regarding if gender should be defined in a narrow or board manner. International refugee law especially can provide contributions on the establishment of causal link between persecution and gender. The first case with regards to gender-based persecution is currently pending before the International Criminal Court. Regardless of the outcome, the judgment will be a deal breaker and decide how far the protection of all human beings reaches before the International Criminal Court.

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List of abbreviations

CIL – Customary International Law

CRC – Convention of the Right of the Child

CEDAW – Convention on the Elimination on All Forms of Discrimination Against Women IBA – International Bar Association

ICC- The International Criminal Court ICL – International Criminal Law

ICTY – The International Criminal Tribunal of Former Yugoslavia ICTR – The International Criminal Tribunal of Rwanda

IHL – International Humanitarian Law IHRL – International Human Rights Law ILC – International Law Commission IRL – International Refugee Law

LGBTIQ – Lesbian, Gay, Bisexual, Transgender, Intersex, Queer OHCHR – Office of the High Commissioner for Human Rights. OTP – Office of the Prosecutor at the International Criminal Court UNGA – United Nations General Assembly

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Table of content

1. Introduction ... 5

1.1 Background ... 5

1.2 Purpose and research questions ... 6

1.3 Delimitations ... 6

1.4 Method and material ... 6

1.5 Outline ... 7

2. Persecution as an International Crime ... 8

2.1 Introduction – From Nuremburg to Rome ... 8

2.2. Persecution before the Nuremburg Tribunal ... 9

2.3 Persecution before the ICTY ... 11

2.3.1 Analysis and discussion ... 14

2.4 Persecution before the ICTR ... 15

2.4.1 Analysis and discussion ... 16

3. Persecution before the ICC ... 17

3.1 Scope of interpretation ... 17

3.2 Persecution under the Rome Statute ... 18

3.3 Elements of persecution ... 19

3.3.1 The chapeau elements ... 19

3.3.2 Severe deprivation of one or more fundamental rights ... 19

3.3.3 Targeted by reason of the identity of a group the group or collectivity as such. .... 21

3.3.4 Targeted on one of the grounds listed in the statute ... 21

3.3.5 The "connection requirement" ... 22

3.3.6 Analysis and discussions ... 23

4. Gender-based persecution before the ICC ... 24

4.1 Introduction – the debate ... 24

4.2 Defining "gender" under the Rome Statute ... 25

4.3 Defining "gender" under IRL ... 27

4.3.1 Analysis and discussion ... 28

4.4 Gender-based persecution and LGBTIQ ... 29

4.4.1 Analysis and discussion ... 31

4.5 Persecution on the basis of gender? ... 31

4.5.1 Analysis and discussion ... 34

4.6 Cases before the ICC ... 35

4.6.1 Analysis and discussion ... 38

4.7 Feminist critique of CIL ... 39

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5.1 Introduction – a pressing need for a specialized convention? ... 41

5.2 Gender-based persecution under a specialized convention ... 42

5.2.1 Analysis and discussion ... 43

6. Summary and analysis ... 45

Conclusion ... 49

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1. Introduction

1.1 Background

The crime of persecution can be described as being the core of crimes against humanity under International Criminal Law (ICL),1 primarily because of its unique character.2 It was first in the Nuremburg Tribunal that persecution was codified as an international crime. However, persecution could only be adjudicated by reason of political opinion, race or religious belief.3 Consequently, gender-based persecution could not result in any successful convictions. The International Criminal Tribunal of Former Yugoslavia (ICTY) and the International Criminal Tribunal of Rwanda (ICTR), were the first international criminal tribunals to address gender-related crimes, but gender was still not included as a ground for persecution.4

Through the establishment of the International Criminal Court (ICC), gender was included as a ground for persecution under the Rome Statue of the ICC (the Rome Statute)5 and subsequently recognized as one of the most serious crimes of international concern.6 However, the inclusion of gender was subject for long debates. Conservative states expressed their concerns that their national legislation on domestic violence against women and LGBTIQ7 persons would amount to persecution, as the term "gender" would imply more generous rights than those already recognized by states.8 After more than 20 years after the inclusion of gender no judgment has been delivered and big question marks still exists in relation to the crime, such as which groups that are protected, which acts that amounts to persecution and the causal link between gender and persecution. Gender-based persecution has for a long time been a part of international refugee law (IRL) and it is argued that the ICC, in the absent of own case-law and guidelines, should draw inspiration from IRL.9 In addition, the international law commission (ILC) will soon deliver a specialized treaty on crime against humanity, where gender-based persecution once again been subject for discussion. In summary, gender-based is one of the most serios international crimes where big gaps in the interpretation and application is evident.

1 William Schabas, The International Criminal Court: A Commentary on the Rome Statute (2nd edn OUP 2016)

194.

2 Prosecutor v. Krnojelac, (Judgment) IT-97-25-T, T Ch II (15 March 2002) paras 435-436.

3 Charter of the International Military Tribunal (entered into force 8 August 1945) 82 UNTS 279 (Nuremburg

Charter) art. 6(1)(c).

4 Statue of the International tribunal of former Yugoslavia, (adopted 25 May 1993, by Resolution 827) UN doc.

S/RES/827 (The Statue of the ICTY), art 5(h) and Statue of the International Criminal Tribunal of Rwanda (adopted 8 November 1994, by UNSC resolution 955) UN doc. S/RES/955 (The Statue of the ICTR) art 3(h) and Cate Steains 'Gender Issues' in Roy S. Lee (eds) The International Criminal Court – the Making of the Rome

Statute, Issues, Negotiations, Results (Kulwer Law International 1999) 358-59.

5 The Rome statue of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002)

2187 UNITS (The Rome Statue) art 7(1)(h).

6 Steains (n 4) 357.

7 Abbreviation of Lesbian, Gays, Bisexuals, Transgender, Intersex and Queer. The author is aware of the fact

that most scholars refers to sexual orientation or gender identity. However, considering the purpose in this thesis LGBTIQ better applies as a term in this thesis. The term can be described as composing sub-categories of sexual orientation and gender identity, see UNCHR 'Guidelines On International Protection No 9: Claims to Refugee Statutes Based On Sexual Orientation and/or Gender Identity within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Statutes of Refugees' (Geneva, 2012) paras 9-10.

8 Steains (n 4) 372 and 'United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an

International Criminal Court' (15 June – 17 July 1998) A/CONF.183/13 (Vol.11), Agenda Item 11 para 61.

9 Valerie Oosterveld, 'Gender, Persecution and the International Criminal Court: Refugee Law's Relevance to the

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6 1.2 Purpose and research questions

In the light of these question marks, the purpose with this thesis is to analyze the development and current status of gender-based persecution as a crime against humanity under ICL. In order to achieve the purpose, following questions will be answered:

1. What elements defines persecution as an international crime?

2. What challenges exist concerning adjudicating gender-based persecution from a legal perspective and do these challenges generate gaps in the protection of certain groups?

3. Can IRL offer some guidelines with regards to the application of gender-based persecution and with regards to the challenging aspects?

4. Do the recent proposed articles by the ILC provide guidelines to these challenges? 1.3 Delimitations

This thesis will only cover the material scope of gender-based persecution under ICL and will not discuss questions of jurisdiction. This thesis will not discuss the other grounds for persecution or other crimes against humanity under the Rome Statute more than is necessary.10 However, sometimes other crimes against humanity may be necessary to discuss, even though the prerequisites of the crime will not be discussed in detail. The proposed convention on crime against humanity will only be analyzed from the perspective of gender-based persecution. The case-law is limited to the Nuremburg Tribunal, the ICTY, the ICTR and the ICC, where the most relevant and influential judgment will be presented and analyzed.

1.4 Method and material

This thesis will use a combination of primarily two legal methods in order to achieve the purpose presented. The major method that will be used is the legal dogmatic method. The purpose by using such a method can be described as solving a legal issue by applying already existing law, meaning presenting de lege lata. By using a legal dogmatic method, the author aims to find the answers in recognized legal sources, such as the legal rules, caselaw, preparatory work and judicial literature.11 This method will therefore primarily be used when the development and current statues of gender-based persecution under ICL are presented. In addition to a legal dogmatic method, a feminist legal theory will be used. This thesis focuses on the method 'Asking the woman question' presented and explained by Katherine Barlett.12 Asking the women question examines how the law fails to take into account experience and values that appears more typical for women than men and how existing rules and legal standard may be a disadvantage to women or other excluded groups. This method assumes that some features of law is not neutral but also "male" in some sense.13 'Asking the women question' therefore asks for the perspective of females and other excluded groups in the application of the law. The method therefore aims to identify the gender implications of the rules.14 The purpose of this method is to expose these features of law and suggest how these problems might be

10 See the Rome Statute (n 5) art 7(1) and 7(1)(h).

11 Jan Kleinman 'Rättsdogmatisk metod' in Fredric Korling and Mauri Zamboni (eds) Juridisk Metodlära

(Studentlitteratur 2013) 21–23.

12 Katherin T. Barlett 'Feminist Legal Methods' (1990) 103, 4 Harv L Rev 829, 836. 13 Ibid 837.

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7 fixed.15 This method will primarily be applied in relation to research question number two and three. Even if this method primarily applies in relation to women as an excluded group, the method can extend and apply in relation to the protection of other excluded groups as well, which will be the case in this thesis.

Since ICL is a branch of public international law (PIL), the sources used when the legal dogmatic method is applied will be the category of sources listed under Article 38(1) of the Statue of the International Court of Justice (ICJ), namely international conventions, international customs, general principles of law and judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.16 These categories can be described as the classical sources of PIL.17 Although the ICJ does not explicitly recognizes a formal hierarchy among these sources, the order of the sources implies a hierarchy, where the international treaties and customary law are of highest relevance and will be the primarily sources in this thesis.18 Judicial literature, articles and legal principles will complement the primary sources. This thesis will mainly refer to known statues under ICL, as well as treaties under international humanitarian law (IHL), international human rights law (IHRL) and IRL. Concerning customary international law (CIL), a lot of references will be made to the ILC. This thesis will primarily discuss the specific principles of ICL, as described and mentioned in the Rome Statute, most importantly the principle of nullum crimen sine lege.19 This thesis will also discuss case-law regarding persecution from the Nuremburg Tribunal, the ICTY, the ICTR and the ICC. Even though the case-law not formally binds the international court and tribunals they are still important with regards to the interpretation and the application of persecution and will therefore be used in a great detail in this thesis. For gender-based persecution, judicial literature and articles will instead of international treaties, CIL and case-law, be of most relevance, since no judgment yet exists with regards to gender-based persecution. Concerning judicial literature, the work and contributions by primarily Valerie Oosterveld will be paid special attention.

1.5 Outline

Except for Chapter 1, the introductory chapter, Chapter 2 of the thesis focuses on the historical background of persecution before the Nuremberg tribunal, the ICTY and the ICTR. Chapter 3 focuses on the elements of persecution before the ICC. Chapter 4 focuses on the challenging aspects concerning adjudicating gender-based persecution and contributions from IRL. Chapter 5 focuses on the proposed convention on crime against humanity and which kind of guidelines that can be offered in the light of gender-based persecution. Chapter 6 will present the summary and analysis together with the conclusion.

15 T. Barlett (n 12) 837.

16 Statue of the international Court of Justice (entered into force the 26 June 1945) 33 UNTS 993 (the Statute of

the ICJ) art 38 (1).

17 Raphaël Van Steenberghe 'Sources of International Humanitarian Law and International Criminal Law' in Jean

d'Aspremont and Samantha Besson (eds) The Oxford Handbook of the Sources of International Law (OUP 2017) 891.

18 Alain Pellet and Daniel Müller 'Competence of the Court, article 38' in Andreas Zimmermann and others (eds)

The Statute of the International Court of Justice: A Commentary (3rd edn, OUP 2019) 932 – 933. 19 The Rome Statute (n 5) art 22.

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2. Persecution as an International Crime

2.1 Introduction – From Nuremburg to Rome

Even though ICL can be described as a rather new branch of PIL, attempts of establishing an international criminal court for trying individual criminal responsibility for committing crimes of international concern can at least be traced back to the 1472, when an ad hoc tribunal was set up as a result of the occupation of Breisach.20 But, it was first as a result of the acts committed during the First World War (WW 1) and in the Ottoman Empire, that serious attempts were made in holding individuals responsible for the crimes committed. At the Paris Peace Conference, the winning side of WW 1 , the Allied Powers, established the 'Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties' in order to investigate the responsibility for starting WW 1 and the war crimes committed.21 But even if the guilt fell on Germany22, and that a treaty was adopted which contained provisions relating to individual criminal responsibility,23 the Second World War (WW2) came between. The treaty was consequently never adopted and an international criminal tribunal was not established.24 Regarding the attempts for holding the leaders of the Ottoman Empire responsible for committing crimes against humanity and civilization25 against the Armenian population in 1915, Turkey refused to ratify such a treaty and this attempt also failed.26

Following WW2, the Allied powers reached the conclusion that the horrific events conducted during the war by primarily Nazi Germany could not go unpunished. Consequently, the Allied powers gathered and after several negotiations, the London Agreement was adopted.27 The agreement stated that the International Military Tribunal in Hague (the Nuremburg Tribunal) should be established with purpose of trying individual criminal responsibility for the atrocities committed.28 The agreement was attached with the Nuremburg Charter which stated that the tribunal shall have the power for trying individual criminal responsibility for committing war crimes, crimes against peace and security and crimes against humanity.29 The establishment of the International Military Tribunal of the Far East (the Tokyo Tribunal) followed a similar procedure.30

Even though the jurisdiction of the Nuremburg Tribunal was limited to the crimes committed by Nazi Germany during WW2 and was only an ad hoc tribunal, ICL had come to stay. Lawyers and policymakers argued that some crimes, because of their gravity, scale and motivation are so horrific that they can be regarded as crimes against the mankind and the international legal

20 International Criminal Law Manual (International Bar Association 2010) (IBA) 48. 21 Ibid 48.

22 Report of the Commission to the Preliminary Peace Conference (1919) AJIL, 95. 23 Treaty of Peace with Germany (28 June 1919) (Treaty of Versailles) art 227. 24 IBA (n 20) 49 and Schabas (n 1) 1.

25 Joint Declaration of the 28th of May 1915 by France, Great Britain and Russia. 26 IBA (n 20) 49.

27 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and

Establishing the Charter of the International Military Tribunal (8 Aug 1945) (London Agreement).

28 Ibid preamble and article 1. 29 The Nuremburg Charter (n 3) art 6. 30 Schabas (n 1) 6.

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9 order as a whole.31 Many of these crimes cross borders, which makes prosecution of this crimes to fall within the interests of several states. The importance of having individual criminal responsibility derives from the fact that perpetrators, mostly members of the governments, may never face prosecution in their national systems.32 Hence, these crimes threatens the legal order on such a large scale, that the international community cannot let these perpetrators go unpunished.

The cold war hindered the establishment of a permanent international criminal court for decades.33 A new attempt was initiated in 1989 and the war in Former Yugoslavia and Rwanda called for a response from the international community, which resulted in the establishment of the two ad hoc tribunals ICTY and ICTR.34 The establishment of the ICTY and the ICTR inspired the ILC in establishing a permanent international criminal court, a task which was handed over to the ILC by the United Nations General Assembly (UNGA). The draft statue was concluded in 199435 which became the framework in the making of a statue for a permanent international criminal court.36 The Rome Statue of the International Criminal Court (the Rome Statute) was adopted in 1998 and entered into force the 1st of July 2002.37 It states that the ICC shall have the power of trying individual criminal responsibility for the 'most serious crimes of international concern', namely the crime of genocide, crime against humanity, war crime and crime of aggression.38

2.2. Persecution before the Nuremburg Tribunal

The following sections will present important case-law from the Nuremburg Tribunal, the ICTY and the ICTR regarding prosecuting persecution as an international crime. Except for providing an historical background of the crime, the purpose by presenting and analyzing this case-law is that several of these cases defines the core elements of persecution under ICL, elements which will have strong impact on future cases before the ICC. These elements will also have strong impact when the challenging aspects of gender-based persecution is analyzed.

Persecution has been codified as a crime under ICL ever since the Nuremburg Tribunal and the Tokyo Tribunal were established, and can therefore be described as one of the core international crimes.39 Through the Nuremburg Charter and The Charter of the Military Tribunal of the Far East (Tokyo Charter) persecution was listed as a crime against humanity. Even though individuals for the first time in the Nuremburg and Tokyo Tribunal could be prosecuted for committing crimes against humanity, including persecution, the underlying concept was not

31 Emily Chertoff, 'Prosecuting Gender-Based Persecution: The Islamic State at the ICC'

(2017) 126 Yale L J 1050, 1065-1066.

32 Ibid 1066.

33 Philippe Kirsch and John T Holmes, 'The Birth of the International Criminal Court: The 1998 Rome

Conference' (1998) 36 Can YB Int'l L 3, 4.

34 Ibid 5.

35 ILC 'Draft Statute for an International Criminal Court with commentaries' (1994) Ybk vol. II. 36 Kirsch and Holmes (n 33).

37 The Rome Statute (n 5) preamble 38 Ibid arts 1 and 5.

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10 new.40 Already the Hague Conventions expressed that inhabitants and belligerents remain 'under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.'41 Hence, persecution is a crime that violates the very core of a human being. In the Nuremburg Charter, crimes against humanity referred to:

murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian populations, before or during the war; or persecutions on political, racial or religious grounds inexecution of or in connection with any crime within the jurisdiction of the tribunal, whether or not in violation of the domestic law of the country where perpetrated […].42(emphasis added)

A similar definition was incorporated in the Tokyo Charter. Although, under the Tokyo Charter persecution needed to be based on political and religious grounds.43 Hence, "race" was excluded and a cumulative requirement was added between the grounds.

Even though either the Nuremburg Charter nor the Tokyo Charter defined persecution, crimes against humanity were divided into two categories of crimes; "inhuman acts", covered offences that were normally illegal under the national criminal laws and the victims were limited to the civilian population. With regards to "persecution", actions which were not prohibited under the national criminal law system could be included. In other words, persecution had to be other types of offences than those listed under inhuman' acts. Another difference was that persecution did not limit the scope of victims to the civilian population, meaning that e.g. members of armed forces could also fall within the scope of persecution.44 The Nuremburg Tribunal referred to series of acts that constituted persecution on the Jewish population, e.g. deprivation of citizenship and family life, no possibility to hold public office, creation of ghettos, burning and demolishing of synagogues, looting of Jews business and a law forcing Jews to wear a yellow star, even though the persecutory acts taking place before the war was nothing in comparison to the acts taking place during the war, the extermination of the Jews.45 The tribunal referred to those acts as 'consistent and systematic inhumanity on the greatest scale'.46 However, jurisdictional limitations existed.

In contrast to war crimes, crimes against humanity had not explicitly before the WW2 been codified as an international crime.47 Prosecuting crimes against humanity therefore risked violating an important principle under ICL, the principle of nullum crimen sine lege, also called the principle of legality. The principle encompasses primarily four elements: the prohibition of

40 Schabas (n 1) 147.

41 The Hague Convention Regarding the Laws and Customs of Land Warfare (adopted 18 October, entered into

force 26 January 1910), preamble 1907. Similar quote in the The Hague Convention with Respect to the Laws and Customs of War on Land (adopted 29 July 1899, entered into force the 4 September 1900) preamble.

42 The Nuremburg Charter (n 3) art 6(c).

43 The Charter of the International Military Tribunal of the Far East (1946) (the Tokyo Charter) art 5(c). 44 Antonio Cassase 'Crime against humanity' in Antonio Cassese and others (eds) The Rome Statute of the

International Criminal Court (OUP 2003) 354

45Judgment of the Nuremberg International Military Tribunal 1946 (1947) 41 AJIL, 75 – 77. 46 Ibid 75.

47 M. Cherif Bassouni, 'Crimes Against Humanity: The Need for a Specialized Convention' (1994) 31, 3

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11 non-retroactivity, the prohibition against analogy, the principle of certainty and the prohibition of unwritten criminal law provisions. The very core is that a person can only be punished for committing a crime, which by the time the crime took place was clearly codified as a criminal offence with a sufficiently certain sanction attached.48 In order to solve this issue, a requirement of a connection to another crime within the charter was added. Thus, crimes committed before the war fell outside the jurisdiction of the Tribunal.49 These connectional crimes were later clarified as being war crime or crimes against peace50 where crimes against humanity also was confirmed as an international crime, including persecution.51 The connection requirement was later dropped in the Control Council Law No. 10.52 Hence, acts of persecution taken place before the war fell outside the jurisdiction of the Tribunal:53 'revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or in connection with, any such crime'.54 The presecretory grounds were also limited to political, racial and religious grounds. Gender was, for example, not included as a ground for persecution. Overall, it is convincingly clear that a gender-perspectives of the crimes prosecuted in the Tribunal did not exist. The evidence of the sexual violence that had occurred did not lead to any successful convictions, and the rapes committed were rather regarded as a by-product of the war than an actual crime.55

2.3 Persecution before the ICTY

As a response to the crimes and evidence of "ethnical cleansing"56 taking place in the Former Yugoslavia during the 1990s, a new ad hoc tribunal was set up in order to adjudicate the crimes committed. In the Statue, Article 5(h) stated that the International Tribunal shall have the power to prosecute the crime of persecution on political, racial and religious grounds when committed during an armed conflict against any civilian population.57 The first definition of persecution in the context of ICL was stated in the case of Tadic and contained two criteria: '(1) the accused committed a specified act or omission against the victim; and (2) the specified act or omission was intended by the accused to harass, cause suffering, or otherwise discriminate against the victim based on political, racial or religious grounds'.58 The Tribunal also clarified, despite the formulation in the Statute, that each ground in itself are sufficient to constitute persecution.59

48 Claus Kreß, 'Nulla poena nullum crimen sine lege' (February 2010) in Rüdiger Wolfrum (ed), Max Planck

Encyclopedias of International Law (online edn)

49 Antonio Cassese (ed.) The Oxford Companion to International Criminal Justice (OUP 2009) 285-286. 50 ILC 'Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment

of the Tribunal' (1950) Ybk vol. II principle VI (c).

51 Ibid.

52Allied Control Council Law No 10: Punishment of Persons Guilty of War Crimes, Crimes against Peace and

against Humanity, art II.

53 Fausto Pocar, 'Persecution as a Crime under International Criminal Law' (2008) 2 J National Security Law &

Policy 355, 358.

54Judgment from the Nuremburg tribunal (n 45) 80.

55 Widney Brown and Laura Grenfell, 'The International Crime of Gender Based Persecution and the Taliban'

(2003) 4, 2 Melbourne J Int'l 347, 355.

56 Women2000 ‘Sexual Violence and Armed Conflict: United Nations Response’, United Nations Entity for

Gender Equality and the Empowerment of Women (UN Women) (1998) 9.

57 See the Statute of the ICTY (n 4) art 5(h).

58 Prosecutor v. Tadic (Opinion and Judgment) IT-94-1-T, T Ch (7 May 1997) para 698. 59 Prosecutor v. Tadic (n 58) para 713.

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12 Before the establishment of ICTY, persecution had never explicitly been defined under ICL. In contrast to the rather slow development of a definition of persecution under ICL, persecution had been defined and clearly develop in the context of IRL.60 However, the ICTY argued that persecution under IRL rather relates to the state of mind of the person claiming persecution than the factual findings of persecution. Therefore, persecution under IRL is 'cast much wider than is legally justified for the purposes of imposing individual criminal responsibility'.61 Therefore, a direct reference to the definition of persecution under IRL and IHRL would violate the principle of legality.62

In the Krnojelac judgment, persecution was described as an act that: '1. discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law (the actus reus); 2. and was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (the mens rea).' 63 Hence, a clear connection between the actus reus (discrimination in fact) and the intension by the perpetrator, mens rea (discriminatory intent) on one of the grounds listed in the statute must exist. Solely a discriminatory intent was not enough and the discrimination must have led to consequences for the victim. Only requiring a discriminatory intent, would not make the crime persecution different from any other crime listed in the Statute, and the very purpose with the crime would be rendered pointless.64 However, a couple of years later, Prosecutor v.

Naletilić and Martinović stated that discrimination in fact appears just through the identification

of the group by the perpetrator, since the victims have no influence of the identification of themselves. Hence, persecution in fact is depended on the identification of the group by the perpetrator and may exists solely on the basis of the perception of a group by the perpetrator. 65 The intent-requirement gives persecution its special character.66 It is not enough that the perpetrator knew that the act or omission discriminates, the specific consciously intent to discriminate must be established but there is no requirement that a discriminatory policy must exists. The discriminatory intent must be linked to the act charged as persecution rather than the act in general.67 The ICTY has stated that the intent requirement is higher than for other crimes against humanity. Therefore, persecution belongs to the same genus as genocide, since both crimes concerns perpetrating an act against a particular group who are targeted because of that. Hence, genocide is an extreme form of persecution.68 It has been argued that ICTY drew

60 UNCHR 'Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status – under the

1951 Convention and the 1967 Protocol Relating to the Status of Refugee (1992) (The UNCHR Handbook). (Reissued in Genève, 2019) paras 51-65.

61 Prosecutor v. Kupreikici (Judgment) ICTY-95-16-T (14 January 2000) para 589 62 Ibid and Prosecutor v. Tadic (n 58) para 694.

63 Prosecutor v. Krnojelac (n 2) para 431. 64 Ibid para 432.

65 Prosecutot v. Naletilić and Martinović, (Judgment) IT-98-34-T (31 March 2003) para 636.

66 Caroline Fournet and Clotilde Pegorier, 'Only One Step Away from Genocide: The Crime of Persecution in

International Criminal Law' (2010) 10 International Criminal Law Review 713, 717.

67 See Prosecutor v. Krnojelac (n 2) paras 435-436. 68 Prosecutor v. Kupreikici (n 61) para. 636

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13 inspiration from its findings in the Nuremburg Tribunal, where the persecution of the Jews was described as being a step in the 'final solution'.69

The ICTY also declined the connection requirement in the Nuremburg Charter, stating that a connection to another inhuman act within the Statue of the ICTY is not required under CIL in order for persecution to constitute crime against humanity.70 Hence, acts of persecution (intentional deprivation of fundamental rights on discriminatory grounds) did not under the Statute of the ICTY need to be conducted through another crime e.g. rape or murder within the Statute as was the case under the Nuremburg Charter.

The ICTY did not provide an exhaustive list of acts of persecution, but stated that the civil and political rights contained in the Bill of Rights (the Universal declaration of Human Rights71, the International Covenant on Civil and Political Rights72 and the International Covenant on Economic Social and Cultural Rights73) sets up a catalogue of rights that is apparent to any human being.74 Persecution was not limited to acts enumerated in the Statute and any act that leads to a violation of the rights listed in these treaties may be acts of persecution.75 In the Tadic case, the Tribunal stated that 'the crime of persecution encompasses a variety of acts, including, inter alia, those of a physical, economic or judicial nature, that violate an individual’s right to the equal enjoyment of his basic rights'.76 Thus, discrimination needs to be present in relation to the enjoyment of fundamental human rights.77 However, only underlying acts that reaches a level of equal gravity as the other crimes against humanity listed in the statute can be regarded as acts of persecution. Therefore, not all deprivations of human and fundamental rights are serious enough to constitute persecution.78

In order for a deprivation or infringement of a fundamental rights to constitute persecution the act must be a gross or a blatant denial, on discriminatory grounds, of a fundamental rights recognized under CIL, in order to not violate the principle of legality.79 The most important aspect of this test it the gravity of the act itself, rather than which type of fundamental right the person is deprived of.80 The Tribunal also stated that if the crime persecution in a specific situation is a combination of series of action, the whole context needs to be considered. Not all single acts must constitute a gross deprivation of a fundamental right.81 The ICTY has for example recognized, murder, sexual assault, beatings, imprisonment, inhuman treatment,

69 Judgment from the Nuremburg Tribunal (n 45) 65 and Fournet and Pegorier (n 66) 718. 70 Prosecutor v. Kupreškić (n 61) paras 580 – 581.

71 UNGA Res 27 A (1948) 'Universal Declaration of Human Rights' (UDHR).

72 International Covenant on Civil and Political rights (adopted 16 December 1966, entered into force 23 March

1976) 999 UNTS 171 (ICCPR).

73 International Covenant on economic, Social and Cultural rights (adopted 16 December 1966, entered into

force 3 January 1976) 993 UNTS 3 (ICESCR).

74 Prosecutor v. Kupreškić (n 61) paras 621, 363-364.

75 Brown and Grenfell (n 55) 364 and Prosecutor v. Krnojelac (n 2) para 433. 76 Prosecutor v. Tadic (n 58) para 710.

77 Ibid para 707.

78 Prosecutor v. Kupreškic (n 61) para 618 - 619 and Prosecutor v. Krnojelac (n 2) para 434. 79 Ibid para 620-622; para 434.

80 Brown and Grenfell (n 55) 364.

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14 infliction of mental suffering, serious deprivation of property and cultural rights as acts of persecution.82 In addition, the ICTY has recognized that using the legal system in order to implement a discriminatory policy, e.g. the prohibition imposed in Germany of marriage between Jews and other Germans, constitutes persecution.83 What is also important, although not related to persecution, is that the ICTY has recognized that sexual violence as an act of torture amounts to gender-based discrimination.84

It has been argued that evidence of non-discrimination of sex and gender were a part of CIL even before the ICTY and ICTR were set up and that IHL early recognized that women are more likely than men to fall victim of certain specific crimes, particularly sexual violence.85 The IV Geneva Conventions of 1949 recognizes that women shall be especially protected in times of armed conflicts86 and Additional protocol I states that women shall be especially protected in particular against rape, forced prostitution or any form of indictment assault.87 Additional protocol II also protects women in non-international armed conflicts.88 The Convention on Elimination on All Forms of Discrimination against Women (CEWAD) had also been drafted, recognizing non-discrimination on the basis of sex as a fundamental human right.89 The Convention of the Rights of the Child recognize non-discrimination on the basis of gender as a fundamental human right.90 Also, UNCHR has recognized gender-related forms of persecution even since 1985.91 Even though the ICTY rejected analogy between ICL and IRL, it is argued that this would not hinder the ICTY, the ICTR or the ICC from drawing inspiration from other areas of law where gaps needs to be filed.92 Also, the ILC Draft Code on Crime against Peace and Security of Mankind, published 1996, stated that gender-based persecution might be a violation of crimes against humanity. However, the ILC saw no reason from departing from what been stated in previous legal framework, despite that fact that the ILC recognized that gender-based persecution violated several international human rights treaties.93

2.3.1 Analysis and discussion

Even though the ILC confirmed that gender-based persecution is a part of CIL, by referring to e.g. IHRL treaties, it was still not explicitly recognized. In the light of the fact that the Rome Statute just a couple of years later listed gender as a ground for persecution, it apparently existed

82 See Cassasion (n 49) 454.

83 See Prosecutor v. Kupreskic (n 61) 612 and Brown and Grenfell (n 55) 364.

84 Prosecutor v. Delić (Judgment) IT-96-21-T, T Ch (16 November 1998) paras 493-497 85 Brown and Grenfell (n 55) 358. Following reasoning inspired by Brown and Grenfell.

86 Geneva Convention Relative to the protection of civilian persons in time of war (adopted 12 August 1949,

entered into force 21 October 1950) (IV Geneva Convention) art 27.

87 Protocol Additional to the Geneva Conventions of 12 1949, and relating to the protection of Victims of

International Armed conflicts (adopted 8 June 1977, entered into force 7 December 1978) (AP I) art 76.

88 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of

Non-International Armed Conflicts (adopted 8 June 1977, entered into force, 7 December 1978) (AP II) art 76.

89 Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979,

entered into force 3 September 1981) 1249 UNTS 13 (CEDAW).

90 Convention of the Rights of the Child (adopted 20 December 1989, entered into force 2 September 1990) 1577

UNTS 3 (CRC).

91 See Oosterveld (n 8) 50. 92 Brown and Grenfell (n 55) 361.

93 ILC 'Draft Code on Crime against peace and security of mankind with commentaries' (1996) Ybk vol. II art

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15 enough evidence under CIL several years earlier that "gender" might be a ground for persecution also under ICL. Even though the code was drafted in 1996 and the ICTY in 1993, the human rights treaties referred to by the ILC were drafted before the Statute of the ICTY. Thus, including "gender" as a ground for persecution already in the Statute of the ICTY would not have violated the principle of legality, if it already had been codified under international law. As a conclusion, no legitimate argument existed that would had justified the non-inclusion of gender as a ground for persecution under ICL.

2.4 Persecution before the ICTR

Just like the ICTY was set up with the purpose of prosecuting the crimes committed in the Former Yugoslavia, the ICTR was set up in order to prosecute the crimes committed during the genocide in Rwanda 1994. Similar to the Statute of the ICTY, the Statute of the ICTR stated in Article 3(h) that the Tribunal shall have the power to prosecute persons responsible for committing acts of persecution on political, racial and religious grounds when committed as part of a widespread and systematic attack against any civilian population on national, political, ethnic, racial or religious grounds.94 In the Akayseu judgment "widespread" was described as a massive and large-scale action, carried out collectively with a considerable seriousness and directed against a large scale of victims. "Systematic" was described as an organized action following a regular pattern on the basis of a common policy.95 One of the most important cases from the Tribunal is the Nahimama judgment (Media case) where it was stated that hate speech can constitute a crime against humanity if the act reaches the same level of gravity as the other crimes within the Statute. On Appeal, the tribunal emphasized that in the context that the speeches, which had been broadcasted at a private radio station, had encourage genocide of the Tutsi people through a massive campaign of acts of violence, rape, murder and torture, it amounted persecution. Thus, those specific hate speeches reached the level of gravity as required by case-law in order to constitute persecution.96

It has been argued that adding ethnicity and nationality as general grounds for crime against humanity under the Statute of the ICTR illustrates that ICL has the possibility to evolve in relation on the nature of the conflict.97 Even though the crimes committed against the Tutsi men and women in Rwanda were perpetrated on the basis of their ethnicity, the sexual violence was particularly directed against Tutsi women meanwhile the Tutsi men were rather subject for murder.98 Rape and sexual violence had for example been encourage against Tutsi women by the fact that these women through radio broadcasting been described as 'seductive agents of the enemy'.99 In the light of this, Emily Chertoff argues that even if both Tutsi men and Tutsi women were persecuted on basis of their ethnicity they were treated differently because of their gender, a treatment 'rooted in gender roles, not individual behavior'.100 The same situation also

94 The Statute of the ICTR (n 4) art 3(h).

95Prosecutor v. Jean-Paul Akayesu (Judgment) ICTR-96-4-T, T Ch (2 September 1998) para 580.

96 Prosecutor v. Nahimama (Judgment) ICTR-99-52-A, Appeals Chamber (28 November 2007) paras 987-988

(the Media case)

97 Brown and Grenfell (n 55) 357. 98 Brown and Grenfell (n 55) 358.

99 Prosecutor v. Nahimama (Judgment and Sentence) ICTR-99-51-T, T Ch I (3 December 2003) para 1079. 100 Chertoff (n 31) 1079.

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16 appeared in Former Yugoslavia where a majority of the victims of sexual violence were Bosnian Muslim Women.101 As a matter of fact, many of the most horrific crimes perpetrated were directed against women, both in Rwanda and the Former Yugoslavia, on a large scale.102 Hence, gender-based persecution as a self-standing ground has been hard to identify.103 According the Brown and Grenfell, '[…] it would not serve justice to restrict the prosecution of one type of crime against humanity (ie persecution) to a few, narrowly restricted grounds'.104 ICTY has also stated that persecution does not have definitive grounds, since persecution also during the WW2 was carried out on the basis of physical or mental disability and sexual preferences.105 Although, it is also important to mention that despite that the gender-aspects of persecution were absent in the reasoning by the ICTR, several of the crimes committed against women were prosecuted as other crimes. For example, the Akayseu judgment declared that the massive rape of Tutsi women amounted to genocide.106

2.4.1 Analysis and discussion

The Media case clearly illustrates that it is rather the gravity of the act than the specific act that is the important aspect of persecution. As long as the act in question constitutes a gross denial of fundamental rights, all such infringement has the capacity to constitute persecution. In the light of the arguments that international law can evolve in relation to the nature of the conflict it aims to regulate, gender as a ground for persecution could potentially been recognized. The non-inclusion of gender by the ILC, supports the theory that ICL has rather recognized gender-based persecution through other grounds of persecution than as a self-standing ground. However, the critic for restricting the presecretory grounds should rather be directed against the drafters of the Statute, than the judgments from the Tribunal, having the principle of legality in mind. Neither the ICTY or the ICTR could have prosecuted gender-based persecution, despite the evidence.

101 Women2000 (n 56) 9. 102 Steains (n 4) 357.

103 Brown and Grenfell (n 55) para 358. 104 Ibid 358.

105 Prosecutor v. Tadic (Judgment) ICTY-94-1-A, Appeals Chamber (15 July 1999) para 285. 106 Prosecutor v. Jean-Paul Akayesu (n 95) para 731-734.

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17

3. Persecution before the ICC

3.1 Scope of interpretation

Before analyzing persecution before the ICC, some important aspects of ICL must be presented in order to understand the challenging aspects of gender-based persecution. The application of the Rome Statute is restricted by the principle of legality. The Statute refers to the classical conception of the principle, namely that a person can only be individually criminally responsible for a conduct which by the time the conduct took place, constituted a crime within the Rome Statute.107 The second paragraph makes clear that the crime shall be strictly constructed and shall not be extended by analogy. In case of ambiguity, the definition shall be used in favor of the person investigated, prosecuted or convicted. The purpose with the prohibition of analogy is to not impose individual criminal responsibility to that extent that it amounts to a new crime. The judges of the ICC cannot not create law, regardless of pressing international need.108 However, the principle does not prohibit all use of analogy since it may be a valid and necessary tool in order to construct a definition of the crimes within the Rome Statute, e.g. in order to fil gaps.109 The principle of legality is also reflected by the fact that the Statute provides a detailed regulation and an exhaustive list of the crimes, which makes ICL a special branch of PIL.110 Article 21 of the Rome Statue lists a hierarchy of the sources of law the ICC should apply when solving cases. First, the Rome Statute, Elements of Crimes111 and its Rules of Procedure and Evidence112, second, applicable treaties, principles of public international law and principles of IHL and third, general principles of law derived from national law systems, as long as they are not inconsistent with norms and principles of PIL.113 In addition, Article 21(3) explicitly states that the application and interpretation of the sources under ICL, e.g. the Rome Statute, cannot be inconsistent with internationally recognized human rights and must be applied without any adverse distinction on the grounds enumerated, such as gender.114 The purpose by adding the article, was to make international human rights an additional source of law for the Court.115 This articles applies in relation to both binding and non-binding international law instruments as well as principles under CIL.116 Thus, a too broad definition of gender may violate the principle of legality and a too narrow definition may violate fundamental human rights. But what also becomes clear is that the prohibition of analogy does not exclude means that may be necessary for the very application of the crime itself, which makes it possible to draw inspiration from other sources of law, e.g. IRL. The question of the

107 The Rome Statute (n 5) art 22.

108 Bruce Broomhall 'Article 22 – Nullum Crimen Sine Lege' in Kai Ambos and Otto Thriffterer (eds) The Rome

Statute of the International criminal court- A Commentary (3rd Verlag C.H Beck 2015) 961. 109 Ibid 961.

110 Van Steenberghe (n 17) 901 and 892-893

111 International Criminal Court 'Elements of Crimes' (2011). 112 Rules of procedures and Evidence (2005).

113 The Rome Statute (n 5) article 21(1). 114 The Rome Statute (n 5) art. 21(3).

115 Margaret M.deGuzman 'Article 21 – Applicable law' in Ambos and Thriffterer (eds) (n 108) 945-946. 116 Schabas (n 1) 530 – 531.

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18 balance between these principles have special importance with regards to the definition of gender the protection LGBTIQ persons.117

3.2 Persecution under the Rome Statute

Under the Rome Statute, persecution is listed as a crime against humanity under article 7(1)(h) of the Rome Statute:

[…] crime against humanity means any of the following acts when committed as part of a widespread or

systematic attack directed against any civilian population, with knowledge of the attack: […] Persecution

against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; 118

(emphasis added)

The wording of article 7(1)(h) makes persecution both a broader and a narrower crime in comparison to previous statues and case law.119 The grounds for persecution have been expanded and now includes, ethnicity, nationality, cultural, gender (as a result of strong lobbying by non-governmental organizations)120 or other grounds that are universally recognized under international law, even though it has been argued that including gender as a ground for persecution is rather a codification of already existing CIL than creation of new law.121 In a more narrower sense, persecution is not a crime self-standing since it must be executed in connected to another crime within the jurisdiction of the court.122

Persecution is defined as 'the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity'.123 At the time the Rome Statute was drafted, Tadic was the only case that explicitly had provided a definition of persecution. According to Darryl Robinson, some states were afraid of making the ICC to an activist court, and because of that, a threshold of 'severe' and a connection to another crime was added.124 Even if the ICC probably will apply and refer to the jurisprudence from the ICTY and the ICTR it is interesting to analyze the approach taken by the ICC. The Elements of Crime125 lists six prerequisites for persecution, all which will be presented and analyzed with a focus on the ICC's findings in Prosecutor v. Bosco Ntaganda, the first conviction on persecution and

117 Inspiration from balancing these principles against each other deprives from Valerie Suri 'Rainbow

Jurisdiction of the International Criminal Court?' (Voelkerrechtblog, 12 March 2018)

<https://voelkerrechtsblog.org/rainbow-jurisdiction-of-the-international-criminal-court/> accessed 30 September 2019.

118 The Rome Statute (n 5) art.7(1)(h). 119 Cassese (n 49) 375-376.

120 Steains (n 4) 358.

121 Brown and Grenfell (n 55) 359.

122 Kai Ambos, Treatise on International Criminal Law: Volume II: The Crimes and Sentencing (OUP 2014)

104.

123 The Rome Statute (n 5) art 7(2)(g).

124 Darryl Robinson 'Defining "Crimes Against Humanity" at the Rome Conference' 93, 1 AJIL 43, 46 and 53

and Gerhard Werle and Florian Jeßberger, Principles of International Criminal Law (3rd OUP 2014) 987. 125 Elements of Crimes (111).

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19 importantly, the first still standing conviction of gender-based crimes, rape and sexual violence, if not released on appeal.126

3.3 Elements of persecution

3.3.1 The chapeau elements

All crimes against humanity within the Rome Statute must fulfil the contextual elements of the crime, the so-called chapeau,127 which encompasses two elements of the crime of persecution. These contextual elements are stated in the very first paragraph of article 7 of the Rome Statute, as cited above. The conduct must constitute an "attack". "Attack" is by article 7(2) of the Rome Statute described as 'a course of conduct involving the multiple commission of acts […] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack'.128 It is not a requirement that the act is of a military nature or even a physical attack, but the policy to commit such an attack must have been actively encourage by a State or an organization.129 "Directed against" refers to the intention by the perpetrators130 and civilians must be the primary target and not just be incidental victims.131 "Civilian population" means that the attack can be directed against any civilian population as long as it is not directed against 'only a limited and randomly selected group of individuals'.132 "Widespread" refers to the large-scale nature of the attack, as well as to the number of victims. 'Systematic' refers to the organized nature and pattern of the attack. 133 "Knowledge" requires that the perpetrator knew that conduct was, or intended to be, part of a widespread and systematic attack directed against any civilian population, a requirement which stems from article 30 of the Rome Statute.134

3.3.2 Severe deprivation of one or more fundamental rights

The other four elements are the characteristic elements of the crime of persecution, the elements which characterize persecution as a unique crime against humanity under the Rome Statute. The term "fundamental rights" is not defined in the Rome Statute except that such rights cannot be contrary to international law. Article 21(3) of the Rome Statute makes references to

126 Prosecutor v. Bosco Ntaganda, Case No. ICC-01/04-02/06 536-537, Judgment (8 July 2019) and Wairagala

Wakabi, 'Ntaganda Convicted at ICC for Rape, Sexual Violence, and Murder' (International Justice Monitor, 8 July 2019) <https://www.ijmonitor.org/2019/07/ntaganda-convicted-at-icc-for-rape-sexual-violence-and-murder> accessed 28 October 2019.

127 Situation in the Republic of Côte d’Ivoire, Case No. ICC-02/11, Decision Pursuant to Article 15 of the Rome

Statute on the Authorization of an Investigation into the Situation in the Republic of Côte d’Ivoire (3 October 2011) para. 28.

128 The Rome Statute (n 5) art 7(2).

129 Elements of crime (n 111) crime against humanity - introdcution, para 3 and e.g. Prosecutor v.Vasiljević

(Judgment) ICTY-98-32-T, T Ch II (29 November 2002) para 29

130 Prosecutor v. Blaškić (Judgment) ICTY-95-14-T, T Ch, (3 March 2000) para. 208 and fn 401.

131 Prosecutor v. Jean-Paul Bemba Gombo, Case No. ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a)

and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo (15 June 2009) para 76.

132 Ibid para 77.

133 Prosecutor v. Katanga, Case No. ICC-01/04-01/07, Judgment pursuant to article 74 of the Statute (7 March

2014) paras 122-123.

134 The Elements of Crimes, General introduction and article 7 – crime against humanity (n 112) and the Rome

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20 internationally recognized human rights.135 The ICTY has stated the Bill of Rights as being the core of international human rights law, but it is argued that other sources of IHRL as well may be include under the term fundamental rights.136 With regards to gender-based persecution, it is possible that the CEDAW may be such a source of fundamental rights within the meaning of the Rome Statute.137

In Prosecutor v. Laurent Gbagbo, the Pre-Trial argued that the killings, rapes and violence committed against at least 316 people amounted to persecution based on the targeted group perceived political affiliation, ethnical, national and religious grounds.138 However, the Chamber concluded that not enough evidence existed in order to prove that crimes against humanity in general had been committed.139 In the case Prosecutor v. Kenyatta, the Pre-Trial argued that killings, displacement, rapes, sexual violence and forcible displacement constituted severe deprivation of fundamental rights.140 But also in this case, the Chamber decided to withdraw the charges.141 In the case of Prosecutor v. William Samoei Ruto and Joshua Arap

Sang the Pre-Trial stated that persecution had been conducted through acts of murder,

deportation and forcible transfer of population by reason of political grounds of the targeted group. The Pre-Trial chamber also stated the differences in prosecuting murder as a crime against humanity and prosecuting persecution through the acts of murder as a crime against humanity. 142 The Pre-Trial explained that persecution contains certain distinct elements than the other crime against humanity, namely a discriminatory intent on one of the grounds listed in the Rome Statute. However, also this case was dismissed by the Trial Chamber. In Prosecutor

v. Patrice-Eduardo Nagissona and Alfred Yekatoma, at Pre-Trial stage, the perpetrators are

accused of committing acts of persecution through severely depriving the victims of their right to e.g. religious freedom against the Muslim population in the Central Republic of Africa.143 The judgment in Prosecutor v. Bosco Ntaganda confirmed a number of statements from the ICTY, e.g. the rights contained in the Bill of rights, other international human rights law instruments as well as IHRL as being fundamental human rights.144 Hence, depending on the gravity of the act and surrounding circumstances, a number of rights, if infringed, may amount to persecution which must be decided on a case by case basis. Therefore, the rights infringed

135 The Rome Statute (n 5) art 21(3) and Schabas (n 1) 195. 136 Schabas (n 1) 195.

137 Cassasion (n 44) 454 and The Office of the Prosecutor 'Policy Paper on Sexual and Gender-Based Crimes'

(June 2014) fn 23.

138 Prosecutor v. Laurent Gbagbo, Case No. ICC-02/11-01/11, Decision on the confirmation of charges against

Laurent Gbagbo (12 June 2014) paras 204-206.

139 Prosecutor v. Laurent Gbagbo, Case No. ICC-02/11-01/15, Reasons for oral decision of 15 January 2019 (16

July 2019).

140 Prosecutor v. Kenyatta, Case No. ICC-01/09-02/11, Decision on the Confirmation of Charges Pursuant to

Article 61(7)(a) and (b) of the Rome Statute (23 January 2012) count 9-10.

141 Prosecutor v. Kenyatta, Case No. ICC-01/09-02/11, Decision on the withdrawal of charges against Mr

Muthaura (18 March 2013).

142 Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the

Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute (23 January 2012) para 271-281.

143 Prosecutor v. Patrice-Eduardo Nagissona and Alfred Yekatoma, Case No. ICC-01/14-01/18, Document

Containing the Charges (18 September 2019) para 255-256.

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21 must be analyzed in their context, with their cumulative effect, and must be a gross and blatant denial of those rights and fulfil the chapeau elements.145 The important aspect is the targeted group must have been hindered from the enjoyment of his/her fundamental rights. The ICC stated that in principle, any commission of an act listed as a crime against humanity under the Statute qualifies as an act that amounts to persecution.146 In this case, the ICC referred to the commission of acts of murder, pillaged, rape of women, right to life, bodily integrity, forcible displacing part of the civilian population to conditions with insufficient food, water and shelter with no access to medical care and destruction and looting of property and sexual slavery, as acts which severely deprived the targeted group of their fundamental human rights.147

3.3.3 Targeted by reason of the identity of a group the group or collectivity as such.

This element excludes acts only committed against randomly selected individuals even though individuals forms a part of a group or collective.148 Since Article 7(h)(1) refers to "any" identifiable group or collective, this indicates that it can be a very small number of people that are members of the group. But the formulation of the element also indicate the group as such can be targeted.149 For example, specific laws only directed in relation to that group.150 Since the grounds for persecution under the Rome Statue is not limited, the only criteria is that the group or collectively are "identifiable", 'based either on objective criteria or on the subjective notions by the accussed'.151 The group or collective may be identified both in a positive or a negative manner either by the fact that the perpetrator targets the group for belonging to a certain group, or for not belonging to a certain group.152 However, it is not a criteria that all victims are related to the group in order for the targeting to constitute persecution.153 It is the perpetrators identification of the group that is the crucial and important element.154

3.3.4 Targeted on one of the grounds listed in the statute

This is the most important criteria which distinguish persecution from other crimes against humanity in the statute, the fact that the perpetrator must have had a discriminatory intent. The violation in itself is not enough to constitute persecution, as stated in the case-law from the ICTY. Hence, the targeting must be based on a discriminatory intent on one of the grounds listed in the Rome Statue.155 So, even if all crimes against humanity requires that the perpetrator had knowledge of the attack, through Article 30 of the Rome Statute, persecution requires that the intent was a significant part of the attack and based on one of the listed grounds and must be present in every perpetrator.156 Consequently, Kai Ambos argues that the intention

145 Ibid para 992–993.

146 Prosecutor v. Bosco Ntaganda (n 126)993–994. 147 Ibid paras 995 – 1008.

148 Christopher K. Hall and others 'Crime Against Humanity' Ambos and Thriffterer (eds) (n 108) 220-221. 149 Ibid.

150 Werle and Jeßberger (n 124) 988.

151 Christopher K. Hall and others (n 108) 220-221. 152 Prosecutor v. Bosco Ntaganda (n 122) 1009. 153 Ibid para 1011.

154 Weler and Jeßberger (n 150) referring to Prosecutot v. Naletilić and Martinović (n 64). 155 Ibid 997.

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22 requirement, the mens rea of the crime, is the real restriction of the crime rather than the connection requirement.157

Prosecutor v. Bosco Ntaganda concerned the targeting of a group on grounds of ethnicity. In

this case, it was beyond doubt that the Lendu group constituted an ethnic group and that the crimes were specifically committed against that group. Most of the individuals which fled the attacks were members of the Lendu group and Lendu people which previously had fled belonged to the villages where the Lendu group lived.158 As an example, seven people were targeted. Those belonging to the Lendu group were killed, meanwhile a woman having a child with the ethnicity of the perpetrator was released.159. Even in villages where the Lendu were not the majority population the victims were mostly Lendu people. Also, even though the ICC could not establish the identity of all the victims of sexual violence and rape, it was a part in the destruction of the Lendu people. Comments by the perpetrators had also been made that the Lendu people were not humans, but wild animals, which the perpetrators could treat however they wanted. In the light of that, the ICC concluded that the Lendu people had been targeted based on their ethnic origin, and were severely deprived of their fundamental human rights because of their ethnicity.160

3.3.5 The "connection requirement"

In order for an act to constitute persecution, persecution must have been committed in relation to another crime within the jurisdiction of the court, a requirement rooted in the Nuremburg Charter but rejected in Tadic by the ICTY as a violation of CIL. The ICTY even stated that the connection requirement in the Rome Statute is not in accordance with CIL.161 Even though the Statute only require a connection to one other act under the jurisdiction of the court, such formulation clearly limits acts that fulfil the other elements of persecution but is not conducted through another crime under the Rome Statute.162 But, it is also important to remember that the list of crimes against humanity within under the Rome Statute is open-ended, through the crime of "other inhuman acts".163 The combination that interpretations of the ICC cannot be inconsistent with fundamental human rights law also provides flexibility for the ICC.164 Also, this connected crime does not need to fulfil the chapeu element for crimes against humanity, which illustrates the fact that the only purpose with the connection requirement is to limit the jurisdiction of the ICC to cover the crimes of most serious concern.165 In the case Prosecutor

v. Bosco Ntaganda this connection requirement was not discussed in detail and the court simply

stated that most of the underlying acts of persecution are connected to another crime within the jurisdiction of the court, without further analysis.166

157 Ibid.

158 Prosecutor v. Bosco Ntaganda (n 126) paras 1012-1016. 159 Ibid para 1017.

160 Ibid paras 1018-1022.

161 Ambos (n 122) 105 and Prosecutor v. Kupreškić (n 2) para 580. 162 Ambos (n 122) 105.

163 The Rome Statute (n 5) art. 7(1)(k). 164 Pocar (n 53) 363.

165 Robinson (n 124) 55 and Ambos (n 122) 166 Prosecutor v. Bosco Ntaganda (n 126) 1054.

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