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

 

 

 

 

 

 

Last week marked a significant milestone in the ongoing effort to promote peace, ensure the rights of victims and advance accountability for international crimes committed in Ukraine. UpRights, in collaboration with the Asser Institute and The Hague Academy for Local Governance (THALG), concluded a successful Training of Trainers (ToT) workshop in The Hague. The workshop, that brought together 16 government officials from different regions of Ukraine, represented crucial step in developing and implementing specialized training modules on transitional justice (TJ) in the country, aiming to support comprehensive accountability and justice processes across the landscape of Ukraine. 

Long-term Goals and Objectives 

Falling under the ‘Restoring Dignity and Justice in Ukraine’ programme funded by the Dutch Ministry of Foreign Affairs, it strives to strengthen expertise and contextualize mechanisms to pursue accountability for international crimes in Ukraine. By assisting government officials and increasing the capacity of national and local institutions, the project aims to incorporate transitional justice practices effectively in the framework of Ukrainian local governance.  

Local Governance and Transitional Justice 

Participants actively considered the importance and role of transitional justice in local governance. They discussed challenges experienced by local communities and the importance of cross-sectoral cooperation to address the multifaceted complications of the full-scale invasion. In a context in which war risks creating distance between the administration and its people, the participants understood transitional justice mechanisms as avenues through which to convey to the citizens that Ukraine is not leaving them.  

“People at the local level experience problems that cannot be understood by other local people and governance. That is why the local level can see the problem much clearer than the national level and therefore act quicker and better,” emphasized one participant, underscoring the unique position of local authorities to address immediate and concrete challenges faced by communities affected by conflict.  

Developing a Contextual Approach 

A significant takeaway from the workshop was the necessity of developing a transitional justice approach tailored to Ukraine’s unique context. “It is very important not to use templates to answer the question; there is a need to find individual and context-specific ways to deal with the past,” one of the guest experts advised. This sentiment was echoed throughout the sessions, emphasizing the concept of transitional justice in Ukraine needs to be built on the country’s history, traditions, challenges, and needs. “The answers need to be contextual,” reiterated UpRights’ Asa Solway, while a truth commission might be an effective approach in certain contexts, Ukraine may require a different method for truth-seeking that resonates with its specific circumstances. 

The Role of Transitional Justice During Conflict 

Breaking down the misconception that transitional justice can only be implemented after a conflict ends, the lively discussions amongst participants underscored how much of what can be done post-conflict is determined by actions taken during the conflict. Documentation during conflict, for instance, sets the groundwork for effective truth-seeking and memorialization efforts later, while engaging with civil society, victim groups, and the broader population even during ongoing conflict can lay the foundation for future reconciliation and justice processes. 

Moving Forward 

Yet, as underlined by UpRights’ Asa Solway and Ciara Laverty at the opening of the ToT, the completion of the training and its workshops represented only the beginning of a journey. Indeed, the trainers, having exchanged with peers and colleagues on the mechanisms that constitute transitional justice processes, set out to deliver the online training modules to other national participants. 

As Ukraine navigates its path towards justice and accountability, the collaborative efforts of UpRights, the Asser Institute, The Hague Academy for Local Governance, and Ukrainian government officials will be pivotal. By fostering a deep understanding of transitional justice and its practical applications, this initiative aimed to support Ukraine in addressing the reality and aftermath of conflict and building a just and resilient society. 

Through continued collaboration and tailored approaches, we can hope to see meaningful progress in the pursuit of justice and reconciliation for the people of Ukraine. 

The Training at a Glance

This project is part of the ‘Restoring Dignity and Justice in Ukraine’ programme, focusing on advancing accountability for international crimes committed in Ukraine. The full 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 various parties in Ukraine dealing with international crimes: prosecutors, police, judges, as well as journalists and civil society organizations. We believe that with the support of the international community, Ukraine can advance accountability for these crimes. 

On Wednesday, May 15, 2024, UpRights’ David Kinnecome took part in the event, “Sanctions, Remittances, and (in)Security: Legal Conundrums, Financial Paradoxes, and Humanitarian Puzzles,” organized by the Asser Institute and the University of Leiden. 

Throughout the day, the conference brought together students, officials, practitioners, and scholars to explore the intricate interplay between international law and sanctions authority, the nuanced role of financial systems as conduits within the sanctions landscape, and the emergence of novel strategies employed by major powers to circumvent existing sanctions frameworks.  

As part of the roundtable on ‘Sanctions and the Pursuit of Accountability for International Crimes: Critical Reflections’, David addressed the pivotal issue of utilizing sanctions-related funds to facilitate compensation for victims of such crimes, underscoring the imperative of ensuring tangible restitution within sanction regimes. 

As we reflect on the rich discourse and insights garnered from yesterday’s proceedings, we are reminded of the imperative to continue fostering dialogue and collaboration within the realm of sanctions scholarship and practice.  

As the 55th session of the United Nations Human Rights Council approaches, Human Rights Activists (HRA) in Iran is publishing the redacted version of a submission filed in December to the Independent International Fact-Finding Mission on the Islamic Republic of Iran (FFMI).

Drafted with the legal support of UpRights, the 60-page submission argues that the facts provided to the FFMI by HRA and two trusted partner organizations should lead the FFMI to conclude that crimes against humanity, and in particular persecution on political and gender grounds, have taken place in the Islamic Republic of Iran since at least 16 September 2022.

The redacted version of the submission is presented in five comprehensive parts, first outlining a methodological approach to collecting and verifying information. Then, it contextualises the “Woman, Life, Freedom” protests in the wider discriminatory legal framework against women, girls and LGBTQI+ individuals, detailing the facts surrounding the protests, before providing a legal analysis focusing on the crime against humanity of persecution on gender and political grounds. Finally, it presents the FFMI and UN Member States with recommendations in this respect.

To read more on HRA’s work on shedding light on the situation of human rights in Iran ahead of the FFMI’s report – set to be delivered on March 18th  – see here

As the 55th session of the United Nations Human Rights Council approaches, Human Rights Activists (HRA) in Iran is publishing the redacted version of a submission filed in December to the Independent International Fact-Finding Mission on the Islamic Republic of Iran (FFMI).

Drafted with the legal support of UpRights, the 60-page submission argues that the facts provided to the FFMI by HRA and two trusted partner organizations should lead the FFMI to conclude that crimes against humanity, and in particular persecution on political and gender grounds, have taken place in the Islamic Republic of Iran since at least 16 September 2022.

The redacted version of the submission is presented in five comprehensive parts, first outlining a methodological approach to collecting and verifying information. Then, it contextualises the “Woman, Life, Freedom” protests in the wider discriminatory legal framework against women, girls and LGBTQI+ individuals, detailing the facts surrounding the protests, before providing a legal analysis focusing on the crime against humanity of persecution on gender and political grounds. Finally, it presents the FFMI and UN Member States with recommendations in this respect.

To read more on HRA’s work on shedding light on the situation of human rights in Iran ahead of the FFMI’s report – set to be delivered on March 18th  – see here

UN FFMI submission

On February 2nd, 2024, UpRights and StraLi released the report Navigating Troubled Waters: Italy’s Human Rights Dilemma in the Mediterranean .

Shedding light on the human rights violations arising from the implementation of Memorandum of Understanding (MoU) signed by Italy and Libya, this report builds upon our Article 15 Communication to the International Criminal Court, which called for an investigation into the international crimes committed by Libyan armed groups against migrants following their interception at sea and return  to  Libya.

The Memorandum of Understanding: A Closer Look

As we approach the 7th anniversary of the MoU, the report delves into its negative human rights implications, calling for a critical examination of Italy’s cooperation practices with Libya and emphasizing the drastic need for a reformulation of such framework.

Tacitly renewed last in February 2023, the MoU has increased the capacity of Libya to intercept migrants and refugees. Nonetheless, the absence of human rights provisions in the framework of the agreement drastically impacted the basic human rights of vulnerable persons, with migrants intercepted at sea facing mistreatment, including arbitrary arrest, torture, inhuman treatment, and sexual violence.

Italy’s International Responsibilities

Our report argues that such violations inevitably render Italy’s position, and consequently the MoU itself, untenable, and situate Italy in violation of its human rights obligations through a policy of externalization.

Indeed, the conduct of Libyan authorities exposes Italy to international responsibility for the violation of several international conventions, including the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the International Covenant on Civil and Political Rights (ICCPR), and possibly the European Convention on Human Rights (ECHR).

The material support provided by Italy may even implicate individual criminal responsibility for Italian agents assisting the Libyan authorities, potentially qualifying as war crimes and crimes against humanity.

Call to Action: Reframing Italy’s Cooperation Strategy

As such, the report calls for a reconsideration of Italy’s cooperation strategy with Libya, proposing two options to ensure compliance with international law obligations:

1. Amendment of the MoU: A human rights clause should be introduced, specifying that respect for human rights and international humanitarian law is essential. This clause should establish an independent body to monitor compliance, a list of mitigating measures for human rights violations, and a legal framework for effective access to justice.

2. Termination or Suspension of the MoU: If amendments consistent with human rights principles cannot be introduced, the report suggests the possibility of terminating or suspending the MoU. Violations by the Libyan authorities may justify such actions under Article 60 of the Vienna Convention on the Law of Treaties, providing leverage for negotiations on amendments in line with Italy’s human rights obligations.

Moving towards human rights

In light of the harsh realities faced by migrants in the Mediterranean, the report urges Italy to amend its policies to ensure compliance with international human rights standards. The report aims to encourage a constructive dialogue and tangible actions to ensure the protection of migrants’ rights and uphold Italy’s commitment to its international obligations.

Waves of the sea reflecting the focus area of the report

 

UpRights centers on providing robust support to its partners in identifying and pursuing effective legal pathways for remedies and accountability.

The partnerships we build are based on our commitment to ensure that victims of human rights violations receive just remedies, and those responsible are held accountable.

Our advice provides honest assessments of what is and is not viable. Our experience also allows us to develop short, medium and long-term approaches which consider a number of pathways including legal redress, the formulation of new accountability pathways and ongoing advocacy efforts.

 

UpRights’ Legal Adviser Marin Van Hove gave a presentation entitled Using International Criminal Law to Support Refugee Protection: Lessons Learned from UpRights’ Article 15 Communication this month, as part of the 3rd Online Course on Advocacy for Protection offered by the International Institute of Humanitarian Law, Sanremo.

The presentation provided an analysis from the perspective of international criminal law, and an overview of interplay of the different applicable legal paradigms as relevant for refugee law or factual situations. This drawing from UpRights’ and its cooperation partners’ previous work submitting an Article 15 communication to the Prosecutor of the International Criminal Court, alleging war crimes and crimes against humanity committed by armed groups against refugees and migrants in Libyan detention centres.

The presentation explained how refugees and migrants are part of the nexus to armed conflict, both as contextual element of war crimes and for exercising ICC jurisdiction pursuant to UNSC Resolution 1970 (2011). It also illustrated that individual criminal responsibility under international criminal law and the International Criminal Court model may in some cases reach further than state responsibility under international human rights law and extraterritorial jurisdiction.

The International Institute of Humanitarian Law’s Online Course on Advocacy for Protection presents key elements to support transformation of policies and public perception of refugees, internally displaced persons, stateless people and migrants. Based on protection principles from international refugee, human rights and humanitarian law, the course assesses challenges and opportunities in protection situations and identifies stakeholders towards which advocacy interventions can be addressed. This year’s edition of the course focused on helping refugees and grass-roots civil society attending the UNHCR’s Global Refugee Forum this month.

UpRights is thankful to have had the opportunity to contribute to this course as part of the organisations’ cooperation.

On Thursday, November 30th, 2023, UpRights’ Co-Director, Valérie Gabard, joined the Database Center for North Korean Human Rights (NKDB) for the release of their latest report ‘Behind Closed Doors: Mapping the System of Command in the Ministry of State Security & Social Security’.  This collaborative effort aims to unravel the intricate web of human rights violations in North Korea, underscoring how the discourse on the North Korean human rights issues has progressively shifted from exposing the gravity of North Korean human rights violations to finding ways to hold perpetrators accountable.

The Report’s Focus: Responsibility and Accountability

Through the employment of its database comprising over 140,000 cases of human rights violations, NKDB was able to produce a report that delves into the organizational structure and systems of command within the North Korean Ministries of State Security and Social Security. The primary goal of the report is to shed light on the systematic and widespread human rights violations occurring within North Korea, emphasizing the need to identify the responsible individuals and organizations, as well as all those actors turning blind eye to the systematic and widespread violations happening in the country.

 Valérie’s Insights: Exploring Superior Responsibility

In her contribution Valérie underlined how the type of work done by NKDB could assist in pursuing accountability because of its information-seeking character, indeed, according to the UpRights’ Co-Director, a better understanding the structure and organization of the Ministries could assist judges and prosecutors understand their power structures.

Drawing from her experience from working within the International Criminal Tribunals for the former Yugoslavia and Rwanda, Valérie emphasized the challenges of prosecuting individuals and specifically discussed the concept of ‘superior responsibility’ in the context of international law. While ‘superior responsibility’ is a well-established concept in international criminal law, its application becomes more nuanced in the Korean context, where no individuals have been prosecuted yet. For this exact reason, the report aims to go beyond merely identifying individuals and organizations but also to demonstrate effective control, a crucial aspect in establishing ‘superior responsibility.’

UpRights’ Contribution: Training and Collaboration

Between December 2022 and June 2023, UpRights has been providing investigative and legal advise in the context of collecting evidence and witness reports to better understand the structure and chain of command of the North Korean’s Regime. Furthermore, in January 2023, UpRights also provided the NKDB with trainings workshops aimed at strengthening their legal capacity in documentation and accountability-seeking efforts for crimes committed in North Korea

Looking back at last week’s event, UpRights expresses its pride in the long-term partnership with NKDB and extends gratitude to the entire team for their collaboration in this significant conference. The collective effort aims to bring justice to the victims of human rights violations in North Korea and holds the promise of a brighter future for those affected.

UpRights co-founders Asa Solway and Valerie Gabard conducted a two-day training for civil society organisations in South Korea on pursuing accountability in different forums for crimes in North Korea.

The training outlined accountability mechanisms with a particular emphasis on submissions before the International Criminal Court. It set out jurisdictional challenges and provided guidance on building effective and persuasive Article 15 communications. The impact and likelihood of different pathways were outlined including recent developments concerning universal jurisdiction, the jurispurdence of the International Court and the benefits and drawbacks of utilizing international criminal law and human rights law. UpRights trainers’ further set out relevant modes of liability and related issues of international criminal law.

The training also focused on best practices related to gathering and analysing evidence in the specific context of civil society in South Korea. International standards and the importance of effective evidence collection was discussed in detail as a foundation to pursue multiple paths to ensuring accountability for victims.

The training built on UpRights recent experience submitting a successful Article 15 Communication to the International Criminal Court concerning crimes against migrants in Libya and its ongoing work to develop the capacity of national actors to effectively leverage domestic and international law to pursue accountability for victims of serious human rights violations.