What an ICC Case on Mali Means for Prosecuting Taliban Gender Crimes

On June 26, 2024, the ICC announced its judgment in the case of The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (the “Al Hassan case”), convicting the defendant, the head of Ansar Dine’s Islamic Police in Timbuktu, Mali, of crimes against humanity and war crimes. But the panel of judges found that while the crime against humanity of persecution on the basis of gender (hereinafter “gender persecution”) was ongoing at the time Al Hassan committed war crimes and crimes against humanity, criminal liability for the gender persecution did not attach to him.

The court’s decision has been viewed with disappointment by many advocates for accountability for gender persecution and gender-based crimes, particularly advocates and women in Afghanistan who had eagerly awaited the decision to inform their efforts to seek accountability for Afghan women and girls. While Al Hassan was not convicted of the crime, the panel’s decision provides important indicators of what constitutes gender persecution, as well as instructive jurisprudence on potential opportunities and challenges in proving it.

The Crime of Gender Persecution

As defined by the Rome Statute of the ICC, persecution is “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.” Persecution rises to the level of a crime against humanity when committed on a widespread, systematic basis “against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender … or other grounds that are universally recognized as impermissible under international law, in connection with any … crime within the jurisdiction of the [ICC].” Persecution therefore requires the commission of another crime outlined in the Rome Statute to be charged. Prior to the Al Hassan case, gender persecution had not been charged by the ICC prosecutor, although the Prosecutor’s Office had taken steps to further define the crime and its approach to the crime through policies on gender persecution and gender-based crimes.

The Al Hassan Case

The Al Hassan case considers the defendant’s conduct during Ansar Dine’s and al-Qaida in the Islamic Maghreb’s (AQIM) 2012-2013 occupation of Timbuktu, Mali. Al Hassan was recruited by these groups to head the Islamic Police and was responsible for enforcing their restrictive interpretation of Shariah law. While these policies impacted the entire population, women and girls faced particularly severe restrictions, including requiring them to wear a veil and cover their bodies, constraining their ability to move freely, and subjecting them to forced marriages. Women were frequently beaten or detained for violations of these restrictions, in sharp contrast to men who were more likely to receive a warning. Female detainees were subjected to sexual assault, including gang rape.

Al Hassan surrendered to the ICC in March 2018 and was charged with crimes against humanity, including torture; other inhumane acts, among them forced marriage; persecution on the basis of religion and gender; and war crimes including torture, mutilation, and passing sentences without previous judgment pronounced by a regularly constituted court.

The ICC’s panel first considered whether the charged crimes had taken place under the Ansar Dine-AQIM occupation. The majority found that these groups committed persecution on the basis of religion and gender during the occupation of Timbuktu, intentionally and severely depriving the city’s population of fundamental rights, among them the right to freedom of thought, conscience and religion; the right to freedom of movement; and the right to freedom from discrimination based on gender. In finding that Ansar Dine/AQIM had committed persecution on the basis of gender, the panel noted that “specific rules and prohibitions were aimed at women and girls, and their violation was repressed with especially harsh punishment and detention conditions, involving gender-specific violence.” These specific rules were based on Ansar Dine/AQIM’s roles and expectations about the behavior of women.

The panel then turned to Al Hassan’s culpability. Al Hassan was found guilty of persecution on the basis of religion, among other crimes. However, he was acquitted of gender persecution, with all three judges taking different positions on his culpability. In separate and partially dissenting opinions, two of the judges considered the question of gender persecution, and their findings provide important, although less persuasive, precedent in future gender persecution cases.

Judge Kimberly Prost of Canada found that gender persecution had occurred for which Al Hassan was responsible and should be found guilty, and thus dissented from the majority’s acquittal. Judge Prost argued that gender persecution was fundamentally intertwined with religious persecution, and that “women and girls were not only particularly affected, but they were also specifically targeted on the basis of gender.” While Judge Antoine Kesia-Mbe Mindua of the Democratic Republic of Congo found that Ansar Dine/AQIM had committed gender persecution, he found Al Hassan not guilty of all charges by reason of duress and mistake of law. Judge Tomoko Akane of Japan, while also acquitting Al Hassan on the charge of gender persecution, dissented from the finding of judges Prost and Mindua that Ansar Dine/AQIM committed gender persecution, finding instead that none of the crimes against humanity committed met the “connection with” requirement for gender persecution and that the gender-based violence associated with the occupation was outside the common purpose of Ansar Dine/AQIM in occupying Timbuktu.  

Applying Al Hassan to Afghanistan

The Al Hassan decision, while not the resounding victory advocates of gender persecution had hoped for, provides helpful insights into situations in which gender persecution is alleged, including Afghanistan. These insights relate to the rights violated by Taliban edicts and comments, the mechanisms for enforcement and patterns of punishment, the Rome Statute crimes committed “in connection with” gender persecution, the rejection of pre-existing discrimination on the basis of gender as a defense, and the potential need to overcome a “common purpose” challenge related to sexual and gender-based violence.

Taliban Edicts Amount to Severe Deprivation of the Fundamental Rights of Afghan Women and Girls

Taliban leaders have restricted the rights of women and girls in Afghanistan through a series of edicts designed to push women out of public spaces. As in Al Hassan,these edicts are based on a strict interpretation of Shariah law that defines what women “are suited for” within the Taliban’s vision of society. These restrictions undermine several fundamental rights under international law, including freedom of movement and association, and freedom from gender-based discrimination. The Taliban’s efforts differ from those of Ansar Dine/AQIM in the higher volume of edicts, which present an arguably more formalized attempt at repressing women on the basis of gender, and the expansiveness of the rights impacted. Repressive Taliban edicts include a harsh dress code forcing women to cover themselves entirely while in public and harsh limitation on the right to marriage, freedom of movement and association, and restrictions on access to education, employment, healthcare and cultural engagement. (For a comprehensive list of Taliban anti-women edicts, click here.)

Finally, as if the situation for women in Afghanistan was not already dire, a new vice and virtue law consolidates various previously issued edicts and instructions into a more rigid and comprehensive framework, adding several new restrictions. Among these, it now classifies a woman’s voice as “awra” — a private, intimate aspect that must be concealed from the public sphere, effectively silencing women from participating in any form of public discourse.

Similar Patterns of Punishment, and More Gender-Specific Enforcement Mechanisms

In the Al Hassan decision, the Court recognized a pattern of punishment for violations of Ansar Dine/AQIM edicts that was more severe for women than men as central to a finding that gender persecution occurred. This included corporal punishment and arbitrary detention in inhumane conditions, during which women were subjected to sexual assault. The Taliban has pursued a similar pattern of using more severe enforcement tactics, including corporal punishment and arbitrary detention, to implement edicts targeting women. A number of women have reported instances of sexual assault while in detention.

In addition, the Taliban has taken the additional step of creating specific enforcement mechanisms to police women’s compliance. The Ministry of Vice and Virtue created the female morality police in 2022 to “guide” women in following Taliban edicts. These police are thought to be stricter with women than their male counterparts. Men have been similarly empowered to enforce Taliban edicts within their families and communities, increasing the risk of violence against women.

Similar Rome Statute Crimes Committed in Connection with Gender Persecution

The crime of persecution can be charged only “in connection with” other crimes against humanity or crimes outlined within the Rome Statute. In the Al Hassan decision, the crimes against humanity charged that satisfied this requirement included torture and other inhumane acts, among others. The majority found that the existence of other ongoing Rome Statute crimes fulfilled the connection requirement. Further, while crimes considered to be part of the persecution charge had been committed, they were not necessary to fulfill the connection requirement. Similar crimes are ongoing in Afghanistan, stemming both from the Taliban’s treatment of women as well as their treatment of the population as a whole. Additional crimes against humanity alleged in Afghanistan include imprisonment, enforced disappearance and forced marriage. Given the majority’s ruling, these crimes would likely satisfy the connection requirement.

Pre-Existing Discrimination Against Women is not a Defense

A notable development from the Al Hassan decision is the court’s distinction between pre-existing discrimination against women and the systematic discrimination alleged as part of the crime of gender persecution. The panel dismissed a defense argument that the pre-existing levels of gender discrimination in Malian society should be considered in evaluating the extent of the discrimination emerging from the alleged gender persecution. This finding may be used to counter any potential defense argument surrounding the historical treatment of women in Afghanistan as a defense to the Taliban’s current treatment.

Overcoming Potential “Outside the Common Purpose” Argument

In her dissenting opinion, Judge Akane distinguished gender-based and sexual crimes — rape, sexual slavery, and forced marriage — from the remainder of crimes committed as outside the “common purpose” of Ansar Dine/AQIM in occupying Timbuktu. The common purpose doctrine recognizes that individuals who engage in a joint criminal venture share responsibility for the crime, allowing courts to hold them accountable for acts committed by others as part of a common purpose. Judge Akane viewed these crimes as opportunistic, committed by actors who exploited women’s vulnerability in detention or in situations of forced marriage. Commentators on the Al Hassan decision have starkly disagreed with Judge Akane’s findings as relying too heavily on long-debunked ICC precedent that rape within a “coercive environment” does not necessarily bring rape into a group’s common purpose. This line of thinking suggests that “those who created the coercive environment appear to have done so with the explicit shared purpose of controlling sexual and other aspects of the lives of women and girls in Timbuktu,” according to law professors Rosemary Grey and Valerie Oosterveld.

In Afghanistan, the Taliban have sought to control all aspects of the lives of women and girls. With such extensive control, it would be hard to argue that the Taliban does not aim to control women’s sexuality, as well as other aspects of their lives, arguably bringing sexual violence such as forced marriage and rape into their common purpose.

Conclusion

The striking similarities between the Al Hassan case and the Taliban’s policies underscore a critical need for ICC intervention. The Taliban’s systemic gender persecution mirrors the grave offenses identified in the Al Hassan case. They fall under the purview of the Rome Statute, which mandates accountability for such egregious acts. The international community must act decisively to prosecute those responsible for these crimes, ensuring that perpetrators of gender-based persecution face justice. This action is not only crucial for upholding the rule of law but also for affirming a global commitment to protecting human rights and dismantling impunity for gender-based violence.

Grace Luloff is a second-year master’s student at Georgetown University in the Conflict Resolution program. Her research focuses on atrocity prevention and transitional justice in Afghanistan and Central Africa.