Berlin/The Hague/Turin, 5 March 2025. Following an urgent request by UpRights, StraLi, and SOS Humanity, the United Nations Human Rights Committee has, for the first time, ordered Malta to take immediate action to fulfill its obligations under international law. The Committee instructed Malta on 4 March 2025 to urgently coordinate a search and rescue operation for 32 individuals who have been in distress for four days near and on the Miskar gas platform. Malta must also ensure their disembarkation in a place of safety. 

On 1 March 2025, the emergency hotline Alarm Phone was alerted about a severe case of distress at sea: 32 people, including several minors and 2 children, reported to be in distress on an unseaworthy rubber boat in the overlap of the Maltese and Tunisian search and rescue zones. Although Alarm Phone relayed the alerts to the Tunisian, Maltese, and Italian authorities, none of the responsible authorities coordinated a search and rescue operation in compliance with their legal duties. Malta’s neglect to coordinate and rescue people from distress is a systematic pattern by which people’s lives are put at risk.

On 3 March 2025, the organisations UpRights, StraLi, and SOS Humanity jointly submitted a request for interim measures to the United Nations Human Rights Committee on behalf of the persons in distress. The request urges Malta to take all necessary measures to coordinate a search and rescue operation and to ensure that the individuals in distress are rescued and disembarked at the nearest place of safety. Malta did not react to any communication concerning the distress case despite being ordered to coordinate search and rescue by the UN Human Rights Committee.

“As a search and rescue organisation, we have been witnessing Malta’s deadly policy of non-assistance for many years,” says Mirka Schäfer, political spokesperson for SOS Humanity. “Time and again, Maltese authorities have refused to coordinate search and rescue operations with our rescue ship Humanity 1, even going so far as to hang up or play music when we call. Malta must be held accountable for behaviours of non-assistance and violation of the non-refoulement principle.”

The people had departed from Zuwara, Libya, on an unseaworthy rubber boat. “The people were already in a critical condition when they contacted us. They have been without food for days and had to endure severe winds and strong currents,” Sophie-Anne Bisiaux from Alarm Phone explains. “They  told us that one person had already died at sea. Later they reported that the remaining survivors were stranded on the gas platform Miskar”. The platform is located in the Gulf of Gabès, in international waters within the overlap of the Maltese and Tunisian search and rescue zones. In the afternoon on 4 March, the rescue vessel Aurora, operated by Sea-Watch, finally rescued the 32 persons. 

The submission to the UN Human Rights Committee was made on behalf of the 32 persons in distress, urging it to issue interim measures requiring Malta to prevent imminent and irreparable harm to the right to life and the prohibition of torture and other forms of ill-treatment (Articles 6 and 7) enshrined in the International Covenant on Civil and Political Rights (ICCPR).

“According to international human rights and maritime laws, Malta must coordinate search and rescue operations in its search and rescue zone,” says Serena Zanirato from StraLi. “This also entails ensuring that people rescued from distress are disembarked in a place of safety where their fundamental rights and the principle of non-refoulement are respected.” 

Yesterday, 4 March 2025 at 11:29 a.m. (CET), the UN Human Rights Committee issued a decision requesting Malta to take all measures necessary to coordinate a search and rescue operation to rescue the 32 persons in distress “to ensure that they are not disembarked in a place where they will be at risk of torture and other forms of ill-treatment or risk to their life”. The decision by the Committee is legally binding and requests Malta to inform them about the measures taken.

“We strongly welcome the Human Rights Committee’s response which is a crucial decision urging Malta to uphold its obligations under international law,” comments Valérie Gabard, co-Director of UpRights. “It is very concerning that the Maltese authorities did not react at any point despite the decision of the Committee. The decision recalls once again that Malta must adhere to its duty to coordinate rescues in its search and rescue zone. We demand that Malta ensures that people in distress are rescued and disembarked in a place of safety.”

 

Press contacts:

Wasil Schauseil, press@sos-humanity.org, SOS Humanity

Miriam Corgiat, info@strali.org, StraLi

Valérie Gabard, info@uprights.eu, UpRights

Sophie-Anne Bisiaux, Contact@alarmphone.org, Alarm Phone 



UpRights is pleased to continue its collaboration with Global Standard, the nonprofit behind the Global Organic Textile Standard (GOTS), on a new project supported by an ISEAL Innovations Fund Impulse Grant. This project involves developing a continuous learning policy and training programme for GOTS auditors on Due Diligence.  

The course aims to equip auditors with the knowledge and skills they need to keep up to date with developments in human rights due diligence within the textile industry. 

As human rights due diligence gains momentum, auditors’ roles are becoming more pivotal in fostering responsible business conduct, incentivising continuous improvement, and helping companies build enduring, trustworthy relationships with consumers, workers, and communities. 

Read Global Standard’s official press release here

UpRights is pleased to welcome the publication of ILGA-Europe’s Annual Review of the Human Rights Situation of LGBTI People in Europe and Central Asia. This vital document, for which UpRights provided drafting support, offers a comprehensive overview of the human rights landscape for LGBTI communities across the region. More than a mere compilation of events, the Review serves as a barometer for the broader state of human rights and democratic principles in Europe and Central Asia. 

As the 2024 Annual Review reveals, the erosion of LGBTI rights is often an early warning sign of wider democratic backsliding. Restrictive policies targeting LGBTI communities do not exist in a vacuum. They are frequently accompanied by broader attacks on civil liberties, freedom of expression, and judicial independence. The patterns observed across different countries demonstrate that when fundamental rights are undermined in one sphere, it creates ripple effects that threaten the rights and freedoms of all individuals. 

Nonetheless, ILGA-Europe’s report seeks to serve as a strategic resource for governments, activists, and policymakers seeking to reverse these troubling trends. By documenting progress, identifying risks, and sharing effective strategies, it offers a roadmap for reinforcing protections for LGBTI people across diverse legal and political landscapes. This collaborative approach underscores the necessity of engagement, showing that change is possible when civil society and institutions work together. 

UpRights remains steadfast in its commitment to amplifying LGBTI voices and reinforcing human rights protections at every level. As highlighted in the Annual Review, meaningful progress depends on strong alliances between civil society, international institutions, and national governments.  

Ensuring that LGBTI rights are respected is not merely a matter of policy but a reflection of a society’s dedication to justice and equality. The events of 2024 remind us that while significant progress has been made, there is no room for complacency. UpRights’ work therefore supports ILGA’s conclusion that fostering dialogue, sharing best practices, and holding institutions accountable remain essential to resisting regression and working toward a future where all individuals, regardless of their gender identity or sexual orientation, enjoy full and equal rights. 

Read the full report here: https://www.ilga-europe.org/report/annual-review-2025/ 

UpRights’ Legal Researcher Nurul M. Azmi and Legal Adviser Ciara Laverty examine legal questions arising from Ukraine’s capture of North Korean soldiers fighting alongside Russian forces in a new post for OpinioJuris. The post provides an in-depth exploration of the legal framework governing the transfer or repatriation of North Korean soldiers captured by Ukraine under international humanitarian and human rights law, exploring the possible barriers to their repatriation and options for their accommodation in Ukraine or transfer to a neutral third state. 

The Third Geneva Convention imposes obligations on detaining powers to repatriate certain categories of prisoners of war (POWs) while hostilities are ongoing, and to release and repatriate all POWs once hostilities have ceased. The Ukrainian authorities have also indicated that they would be open to returning the POWs to North Korea in exchange for Ukrainian POWs detained in Russia prior to the cessation of hostilities. 

The blogpost outlines how, in the context of North Korea, the potential repatriation of POWs is nevertheless complicated by the principle of non-refoulement, which prohibits the return of individuals to states where they face a credible risk of serious violations of fundamental rights, such as torture, persecution, or other ill-treatment, as well as by the possibility that POWs may not wish to return to North Korea. 

The post therefore also considers possible alternatives to the repatriation or exchange of North Korean POWs.  It outlines how accommodation in Ukraine, under the framework of the Fourth Geneva Convention and refugee law, may be one option for POWs who do not wish to return to North Korea or where issues of non-refoulement prevent their return. It also explores the possibility of transferring POWs to neutral third countries, such as South Korea, which has indicated that it may be open to receiving North Korean POWs, should they seek resettlement. 

Given the nature of the North Korean state, the post stresses that it will be important to account for the risks that POWs may face if returned to North Korea and ensure that any decisions are made and implemented in compliance with Ukraine’s obligations under the Third Geneva Convention and international human rights law. 

Read the full analysis on OpinioJuris here

On Monday 2 December, Amnesty International submitted a legal filing, to which UpRights provided legal and drafting support, to the President of the Pre-Trial Chamber of the International Criminal Court (ICC) on behalf of several victims’ networks in northern Nigeria, including the Jire Dole Mothers and the Knifar Movement networks.  

 

The submission requests that the Pre-Trial Chamber take action to bring the Prosecutor into compliance with their legal obligation under Article 15(3) of the Rome Statute to open an investigation into the situation in Nigeria.  

This filing responds to the unprecedented situation created by the Prosecutor in relation to the situation in Nigeria at the ICC. The Office of the Prosecutor (OTP) opened a preliminary examination into the situation in Nigeria in 2010. In 2020, the Prosecutor closed the preliminary examination, concluding that the statutory criteria for opening an investigation had been met. Despite this conclusion and now four years later, the OTP has nevertheless taken no action to request the opening of an investigation, leaving Nigeria in an unprecedented legal ‘limbo’ between these two stages of the ICC judicial process. 

Ten years of preliminary examination followed by a public announcement in 2020 that the criteria for opening an investigation had been met has given rise to significant and legitimate expectations among victims and affected communities in Nigeria. Four years later, victims and survivors of the conflict have been left with no explanation or certainty as to the Prosecutor’s next steps, while their rights to truth, justice and reparations remain on indefinite hold.  

In this filing, Amnesty International and UpRights submit that, in failing to request authorization to open an investigation in Nigeria, the Prosecutor is acting inconsistently with their legal obligation under Article 15(3) of the Rome Statute. The submission outlines how the language and structure of Article 15 make clear that, once the Prosecutor has concluded that there is a reasonable basis to proceed with an investigation, they are under a legal obligation to request authorisation from the Pre-Trial Chamber to do so. The submission argues that such authorisation should have been requested immediately after, or at a minimum, within a reasonable time after, the Prosecutor reached the conclusion that the criteria to open an investigation had been met. The submission further outlines how the legal obligation imposed on the Prosecutor under Article 15(3) is consistent with internationally recognized human rights, including the rights of victims to truth, justice and reparations, and to be informed about the status and progress of criminal proceedings. 

 

UpRights is glad to support this critical submission and endorses its call for investigating and prosecuting the crimes committed in northeast Nigeria since 2009. 

You can read the submission here. 

Overview

 

The conflict in Ukraine has impacted all levels of society in fundamental ways. To assist in addressing emerging challenges, the Dutch Ministry of Foreign Affairs has established the program “Restoring Dignity and Justice in Ukraine”, implemented by the International Development Law Organization, to provide relevant support and strengthen the capacities of various parties dealing with international crimes in Ukraine.

As part of this initiative, UpRights, the Hague Academy for Local Governance and the T.M.C. Asser Instituut collaborated with the Ukrainian High School of Public Governance to develop a transitional justice training to assist Ukrainian civil servants in responding to harms arising from the conflict. The program was created in response to a demand by Ukrainian civil servants to better understand transitional justice and its role in supporting the provision of government services.

The online training includes six modules focused on the fundamentals of transitional justice and its potential to support local government working in de-occupied communities throughout Ukraine. To date, the training has been taken by close to a hundred civil servants and has led to follow up workshops focused on specialized topics including compensation and reparations, working with victims, sexual and gender-based violence and the restoration of public services in de-occupied communities. Encouraged by strong engagement and concrete outcomes, the implementing partners intend to deepen their collaboration and extend the reach of the program in 2025, ensuring it continues to meet the evolving needs of the Ukrainian society.

 

Activities

 

In early 2024, a comprehensive needs assessment, which included interviews with government officials, civil society representatives, international experts, and academics, set out challenges faced by civil servants and opportunities for transitional justice practices to support their efforts. The assessment found that while criminal accountability was often the primary focus of attention, government actors needed support to address other challenges arising from the conflict including reparations, reconciliation, the restoration of public services, mistrust in returning authorities and the conditions of victims and IDPs.

Following this assessment, a series of online modules was developed to provide training on the fundamentals of transitional justice and its specific application in de-occupied communities. Building upon this initial phase, in May 2024, 16 Ukrainian civil servants from national, regional and local government bodies took part in a weeklong training of trainers in The Hague, Netherlands to bridge connections between different sectors of government and build the capacity of the attendees to deliver the transitional justice training to their colleagues.  As noted by a participant in The Hague, “We are all traumatized by the war. […] We are traumatized but we are ready to work on transitional justice, we are ready to speak about transitional justice and promote the concept further.”

The results of the week-long training of trainers were incorporated into a final training course of six modules, split between core transitional justice principles and practices and modules designed to support government working in de-occupied communities to restore public services, work with victims, and promote dialogue and reconciliation. These topics were selected in part based on feedback from participants: “My obligation would be to provide safety and avoid retraumatization, fostering equality, non-discrimination, and inclusion for victims.” 

 

Outcomes

 

In September 2024, the online training was made available to all civil servants in Ukraine and, since the commencement of its rollout, close to a hundred civil servants have completed it.

Further, government officials, including some of whom attended the training in The Hague, have organized live workshops for hundreds of their colleagues which build on the online content. These workshops have been held in Kyiv and in de-occupied communities in the Kherson and Kharkiv regions. They have focused on a number of specialized topics including support to victims and IDPs, compensation for damages, approaches to preventing and addressing conflict-related sexual violence, and memorialization and documentation of the ongoing conflict.

Critically, the creation and implementation of the online course has produced increased cooperation between different sectors of government to implement transitional justice principles and practices into their daily work. As noted by a government partner, “There is a need for international cooperation that would allow us to reach all concerned groups, from high level officials to any other role in civil society institutions.” UpRights, The Hague Academy and T.M.C. Asser Instituut continue to support these workshops through the provision of tailored training and reference materials based on feedback from trainers and participants.

 

Next Steps

 

In 2025, this initiative is expected to grow further, with a natural continuation of the training through additional workshops and the development of a supplementary online module, which will be developed to expand on the current content following consultations with Ukrainian government officials.

Describing their hopes for the future, a participant stated that “we understand that the practical implementation of this training course will help improve the situation in our country. Each of the participants has their own experience which is of utmost importance to overcome the conflict in Ukraine and guarantee that similar situations do not take place anywhere else in the world.”

 

 

This project is part of the ‘Restoring Dignity and Justice in Ukraine’ consortium programme, focusing on advancing accountability for international crimes committed in Ukraine. The programme is funded by the Dutch Ministry of Foreign Affairs and is implemented by the International Development Law Organisation (IDLO), in partnership with the T.M.C. Asser Instituut, the Center for International Legal Cooperation (CILC), and the Netherlands Helsinki Committee (NHC).  The project aims at institutional strengthening and capacity development needs of the key parties in Ukraine dealing with international crimes: prosecutors, police, judges, as well as journalists and civil society organisations. We believe that with the support of the international community, Ukraine can advance accountability for these crimes.

On Friday, November 22, UpRights’ Co-Director Valérie Gabard took part in a conference on corporate human rights due diligence co-hosted by the University of Nîmes , Juristes sans Frontières, and with the support of the Montpellier, Nîmes and Alès Bar associations. 

The conference brought together experts and practitioners to discuss the growing responsibilities of businesses to respect human rights and protect the environment.  

As part of her panel, Valérie discussed the importance of conducting heightened human rights due diligence for companies operating in conflict zones or high-risk areas, focusing on its value to minimize risks of harms for civilians and for businesses to contribute by the activities to the commission of serious human rights violations. 

 

Revisiting the Foundations: Heightened Human rights Due Diligence in Conflicts or High-Risk Zones 

Valérie began by grounding her discussion in the standards set by the UN Guiding Principles on Business and Human Rights, which codified the corporate responsibility to respect human rights. Corporate responsibility requires businesses to conduct human rights due diligence, a process consisting of identifying, preventing, and mitigating risks of human rights harm. In this regard, Valérie notably stressed that traditional due diligence processes need to be tailored to high-risk areas where armed conflict, weak governance, and systemic violence exacerbate vulnerabilities. 

Heightened human rights due diligence, as she explained, therefore emerges in the form of complementary UN guidelines proposing a more tailored approach to the human rights situation on the ground. This includes: 

  • Understanding the local conflict context to anticipate how business operations might impact or exacerbate existing tensions. 
  • Engaging meaningfully with affected stakeholders, such as displaced communities, local authorities, and, where feasible, even armed groups. 
  • Applying a comprehensive legal framework that integrates international humanitarian law and international criminal law alongside human rights standards. 
  • Planning a disengagement strategy in advance as an option for addressing adverse human rights impact but taking into account whether suspending or exiting could exacerbate tensions within populations and whether the harms outweigh the benefits. 

 

Building on UpRights’ Work: The TotalEnergies Case 

Valérie’s presentation drew from UpRights’ 2023 report on TotalEnergies’ natural gas project in Cabo Delgado, Mozambique—a prime example of the consequences of inadequate human rights due diligence in a conflict-affected region. Commissioned by Justiça Ambiental!, Friends of the Earth Europe, Friends of the Earth, Milieudefensie and conducted independently by UpRights, the report highlighted significant shortcomings in TotalEnergies’ approach to heightened human rights due diligence and conflict sensitivity. 

The Cabo Delgado region has indeed been embroiled in an armed conflict since 2017, marked by egregious human rights abuses and violations, including mass killings, sexual violence, and forced displacement committed by both the armed group and the Mozambique armed forces. Despite these conditions, TotalEnergies failed to implement a heightened due diligence process when it became the operator of the project in 2019 but also in 2021 when it finally conducted its own human rights due diligence process. 

This failure to conduct a heightened human rights due diligence process led to a disregard of whether the Project’s presence and activities may contribute to the conflict and to the serious human rights violations and abuses committed against local population.  

For instance, TotalEnergies and the government of Mozambique signed a Memorandum of Understanding providing that the project’s area of operation will be secured by a Joint Task Force (JTF) composed of the Mozambican military and police force. This agreement includes material and financial support to the armed forces. If the HRRD process had conducted an heightened human rights due diligence process, it may have led TotalEngeries to realize that the relationship between the Project and the Mozambican armed forces could be considered as a form of assistance or support from the Project to the JTF part of the Mozambican armed forces, a party to the conflict.  

UpRights’ report argued that a robust due diligence process could have anticipated these risks, mitigating harm to civilian populations and shielding the company from potential complicity in international crimes. 

Valérie notably emphasized that these findings are not hypothetical concerns but a stark warning for businesses operating in similar contexts. The absence of proper due diligence not only exacerbates human suffering but also exposes corporations to significant legal and reputational risks. 

Recent allegations of serious human rights violations involving the Mozambican military forces providing security for TotalEnergies’ project in Cabo Delgado have once again underscored that point and the importance of ensuring that HRDD frameworks fully consider the specific challenges of conflict-affected areas and of a thorough and sensitive approach in safeguarding communities. 

 

Heightened human rights Due Diligence as a Preventative Tool 

In her intervention, Valérie articulated a clear vision of what enhanced due diligence entails for businesses in conflict-affected and high-risk areas. Beyond traditional human rights assessments, it demands a nuanced understanding of local conflict dynamics and their interplay with business operations. For example: 

  • Conflict-sensitive mapping: Businesses must identify root causes, key actors, and potential triggers of violence within the regions where they operate. 
  • Holistic risk assessment that includes the conflict and human rights situation in the country: This involves evaluating the potential for operations to fuel existing tensions or create new grievances. 
  • Proactive stakeholder dialogue: Companies need to engage directly with affected communities by the conflict and serious human rights violations and consider their perspectives in decision-making processes. 

Valérie also highlighted the importance of planning for worst-case scenarios, such as the suspension of operations. TotalEnergies, for instance, lacked a responsible exit strategy when violence escalated in Cabo Delgado, leaving workers, subcontractors, and displaced communities unsupported.  

 

Toward a Binding Framework 

Valérie concluded her presentation with a forward-looking perspective, linking heightened human rights due diligence to emerging legal frameworks. While the UNGPs provide foundational principles, they lack binding force. However, the new European directive on corporate sustainability due diligence marks a significant step forward, making Human rights due diligence mandatory for European businesses. The European directive expressly mentions the importance of conducting this process in its heightened form for businesses operating in conflict zones and high-risk areas. 

 

UpRights’ Vision for Change 

Valérie’s intervention reaffirmed UpRights’ commitment to promoting accountability and the rule of law particularly in fragile human rights contexts. 

The TotalEnergies case, she noted, is both a cautionary tale and a call to action. Heightened human rights due diligence is not merely a regulatory hurdle but must be seen as a moral imperative for businesses that wish to operate responsibly in a globalized world.  

On Tuesday 19 November, Global Standard, the non-profit that manages the Global Organic Textile Standard (GOTS), released its Due Diligence Handbook for Auditors Version 1.0 which is designed to support compliance with enterprises’ human rights due diligence obligations. UpRights is pleased to have supported GOTS in this process with research, analysis and drafting.  

The Due Diligence Handbook for Auditors complements the Due Diligence Handbook for Certified Entities, which was released in 2023 and updated in September 2024 also supported by UpRights. Whereas the Handbook for Certified Entities requires enterprises to undertake six steps of due diligence in relation to their operations and supply chains, the Handbook for Auditors gives practical guidance on auditing compliance with such due diligence criteria, as well as GOTS’ wider human rights and social criteria. Both Handbooks bring the GOTS system closer to the system of the Organisation for Economic Co-operation and Development, as well as legislative developments worldwide including the European Union’s Corporate Sustainability Due Diligence Directive. 

 The essence of this initiative is to give auditors the support, techniques and knowledge they need, including on challenges and best practices, to promote the best possible audits of enterprises’ performance. This seeks to move business and human rights forward beyond mere labelling, beyond detailed codes of environmental, social and governance criteria, and towards having both enterprises and auditors ensure responsible business conduct. UpRights looks forward to continuing this trajectory with the Global Standard.     

 For further details see here

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

 

 

 

 

 

On July 3, 2024, UpRights took part in the 7th edition of “Building the Capacity of Judges to Deal with International Crimes in Africa”, a training course for judges and prosecutors from French-speaking African countries organized in the context of the high-level training programme on international criminal law and transnational criminal law by the T.M.C. Asser Instituut, the Antonio Cassese Initiative, and the International Nuremberg Principles Academy. 

During her panel, UpRights’ Co-Director Valérie Gabard conducted an interactive exercise related to the investigation and qualification of conflict-related sexual violence, with a particular focus on the qualification of SGBV in the context of war crimes and crimes against humanity. Valérie’s presentation concluded the third day of the training, allowing participants to engage in discussions on the complex process of investigating and prosecuting sexual and gender-based violence. 

Covering topics like the elements of international crimes, investigations and prosecution strategies, and the protection of witnesses and victims in international criminal law cases, the training course was developed to equip judges and prosecutors with practical skills, tools, and knowledge necessary to address international and transnational crimes effectively.