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Prisoners in striped uniforms bearing triangular badges, on parade in Sachsenhausen Concentration Camp near Berlin, Germany, 19th December 1938. Nazi officers stand guard.

Nazi Germany

At the turn of the twentieth century, a devastated Germany began promulgating a racist, antisemitic, sexist and homophobic ideology under the direction of the Nazi party. High-ranking Nazi officials denounced homosexuality as “a dangerous and infectious plague” that perpetuated “womanish emotionalism” and had to be met with “barbaric severity.” Nazi members also interwove racism and homophobia. For example, some viewed homosexuals as “racial degenerates” stemming from the “evil propensities of the Jewish soul.” Overall, between 5,000 and 15,000 men accused of homosexuality were sent to concentration camps. Less is known about the ill-treatment of lesbians and transgender persons during the rule of the Third Reich. Women in politics were seen as “disgraceful aberrations” and were told that “only a man must be and remain a judge, soldier, and politician.” Masculine-perceived women and trans men were seen as threatening in their gender nonconformity, which was believed to lure women away from their assigned roles, endangering the birth rate. Some called for criminalizing lesbianism, but ultimately this idea died out, since women were perceived as having little power and therefore not politically or socially threatening. Transgender persons were generally misunderstood and seen as intentionally misrepresenting their sex assigned at birth, as opposed to living as their true selves.

International Criminal Tribunal for the former Yugoslavia

The International Criminal Tribunal for the former Yugoslavia (ICTY) maintained the same persecutory categories as the post-Second World War Charter of the International Military Tribunal, which established persecution based on political, racial and religious grounds. While gender persecution was not officially included as a charge, case law discussions of perpetrators’ crimes provide the groundwork for an understanding of gender persecution under international criminal law. For example, Čelebići, Kvočka, and Kunarac that point to gender and ethnicity as discriminatory grounds. In Kvočka, the Trial Chamber held that sexual violence was a “natural or foreseeable consequence” of Bosnian women being held in detention and “guarded by men with weapons who were often drunk, violent, and physically and mentally abusive and who were allowed to act with virtual impunity.” The appeals judgment affirmed that discriminatory intent is not voided by personal motivations to commit sexual assault. ICTY jurisprudence on persecution and sexual violence helped to inform the ICC OTP’s Policy on Gender Persecution.

Umusanzu mu Bwiyunge, the ICTR Information and Documentation Centre. Photo: Courtesy of the ICTR.

The International Criminal Tribunal for Rwanda

The International Criminal Tribunal for Rwanda (ICTR) adopted the persecutory categories from the World War II Military Tribunal, and expanded them to include ethnic and national grounds. Similar to the International Criminal Tribunal for the Former Yugoslavia (ICTY), while persecution based on gender was not included in the ICTR Charter, discussions regarding how transgressing gender regulations imposed by perpetrators may serve as the underlying basis for crimes, provides building blocks for understanding gender persecution under international criminal law. For example, in Nahimana, Tutsi women were perceived as violating prescribed gender behavior and labeled as “femme fatale[s]” and “seductive agents of the enemy”, which the court noted were motivational factors for sexual violence and killings committed against them. Just as the ICTY jurisprudence on persecution and sexual violence helped to inform the ICC Policy on Gender Persecution so did ICTR jurisprudence.

CUNY School of Law and MADRE host a training on gender persecution for judges, lawyers and advocates of the Special Jurisdiction for Peace in Bogotá, Colombia.

The Special Jurisdiction for Peace, Colombia

The Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, or JEP) in Colombia broke new ground by charging the armed forces with gender persecution and other crimes against an LGBTQI+ person. On July 5, 2023, the JEP published another decision charging former FARC-EP members with crimes against humanity of gender persecution, as well as racial and ethnic persecution, and noted that these persecution grounds intersected in many cases. It is the first mechanism to create international precedence for the crime against humanity of persecution on the basis of gender. By bringing charges for gender, racial and ethnic persecution, the JEP captured a wide range of crimes that are intertwined with structures of discrimination against women, girls, LGBTQI+ people, and Afro-descendant and Indigenous Peoples, that would not have surfaced had the charges solely included other crimes against humanity. The HRGJ Clinic of CUNY School of Law holds a formal agreement with the JEP to provide technical assistance and analysis regarding gender crimes that may amount to persecution.

The Extraordinary Chambers in the Courts of Cambodia (ECCC) courtroom, July 2009, during testimony of a former Khmer Rouge prison guard. Photo: Courtesy of Extraordinary Chambers in the Courts of Cambodia

Extraordinary Chambers in the Courts of Cambodia (ECCC)

The Extraordinary Chambers in the Courts of Cambodia (ECCC) has heard testimony from victims who were targeted with discrimination based on gender. In one case, during the Khmer Rouge reign, a trans woman was forced to marry a cisgender woman and monitored by soldiers to consummate her forced marriage. According to testimony, other trans persons committed suicide to escape forced marriage or were shot to death by soldiers.

Activists from around the world gather in The Hague to participate in the ICC Office of the Prosecutor Roundtable Discussion on the Gender Persecution Policy in May 2023. 

ICC Office of the Prosecutor, Policy on the Crime of Gender Persecution

The International Criminal Court (ICC) Prosecutor Karim Khan, KC, issued the first Policy on the Crime of Gender Persecution in order to improve the recognition and investigation of this crime and ensure the pursuit of justice for victims. At the Prosecutor’s request, Professor Lisa Davis led the drafting process for the Policy as the Special Adviser on Gender Persecution. Taking direction from the Prosecutor’s initiative to strengthen engagement with civil society, this Policy was developed through an extensive year-long consultative process engaging governments, experts, civil society, affected communities and survivors. This new Policy takes a comprehensive approach to all crimes and severe deprivations of internationally recognized fundamental rights that may amount to the crime against humanity of persecution on the grounds of gender (gender persecution). It recognizes all of its victims, namely women, girls, men, boys, including/and LGBTQI+ persons. It also recognizes that acts or crimes of gender persecution may include forms of sexual violence or any physical violence or physical contact, as well as acts such as cultural destruction or confiscation, imposition of dress codes, and prohibition of education for girls, among others. Official versions of the ICC Policy on the Crime of Gender Persecution are available in English, Spanish, French and unofficial translations are available in Ukrainian, Dari and Pashto.

International Criminal Court Investigation into Alleged Crimes in Afghanistan

On October 31, 2022, the International Criminal Court (ICC) authorized the ICC Prosecutor to resume the investigation into alleged crimes in Afghanistan. Since their takeover in August 2021, Taliban members have allegedly committed murder, torture, sexual violence and other inhumane acts targeting women, girls, and LGBTQI+ people. Taliban policies deprive Afghans of fundamental rights on the basis of gender, such as the right to education, to work, and to freedom of movement, expression and peaceful assembly, among others. 

In September 2023, a Joint Declaration “[a]ddressing systematic gender-based discrimination against women and girls in Afghanistan” by twelve governments expressed “strong concerns that persecution on the grounds of gender is institutionalized by the Taliban in Afghanistan,” and that “[t]he Taliban’s measures to exclude women from the Afghan society are unparalleled worldwide and may amount to gender persecution and a crime against humanity.”

In a July 2023 joint report to the UN Human Rights Council, the UN Special Rapporteur on the situation of human rights in Afghanistan, and the UN Chair of the Working Group on discrimination against women and girls, found that “[w]omen and girls in Afghanistan are experiencing severe discrimination that may amount to gender persecution – a crime against humanity.”

In March 2023, the HRGJ Clinic, in collaboration with the Institute on Gender Law and Transformative Peace at CUNY Law School and MADRE, launched a report, Gender Persecution in Afghanistan. The report provides in-depth analysis of the Taliban’s acts to deprive Afghans of fundamental rights on the basis of gender — acts that may amount to gender persecution.

International Criminal Court, Prosecutor v. Al Hassan, Mali

In September 2019, the International Criminal Court (ICC) confirmed charges of gender persecution in Prosecutor v. Al Hassan. The trial against Al Hassan Ag Abdoul Aziz, a high-ranking administrator of the Islamic Police in Timbuktu, began in July 2020. Submitted evidence related to gender persecution includes, for example, the fact that women in Timbuktu, Mali living under the control of Al Qaeda in the Islamic Maghreb (AQIM) were forced to wear full-face covering veils, and were prohibited from interacting with men to whom they were not married or related to. Discriminatory penalties or those that transgressed the policies included rape of women in detention as a sanction for disobedience and forced marriages. The future of this case could set a crucial precedent, establishing that such acts can amount to the crime against humanity of gender persecution. Prior to the Al Hassan case, it was only in the Mbarushimana case at the ICC that the prosecutor attempted to bring charges of gender persecution. The Al Hassan case is the first where gender persecution charges have been issued.

In its June 26th, 2024 decision, while a majority of the Trial Chamber found that gender persecution occurred, it did not agree to convict Al Hassan for gender persecution, or any other gender violence crimes, including sexual violence or sexual slavery. This resulted from a split majority. While two of three judges agreed these crimes occurred, the third judge felt that the suspect had legal defenses—duress and, in some instances, mistake of law—to all of the gender-related charges. However, since the majority did find that gender crimes occurred, the decision provides the ICC’s first in-depth jurisprudence on gender persecution and builds the jurisprudence for other gender crimes.

Future of Gender Persecution Charges before the International Criminal Court

The International Criminal Court (ICC) Office of the Prosecutor started to investigate gender persecution acts that may have taken place in multiple conflict situations under the jurisdiction of the Office. In addition to bringing charges in Prosecutor v. Al Hassan, the Office is also looking into gender persecution conduct in other situations including in Sudan and the Central African Republic.

The first trip of the Commissioners to Ukraine in June 2022

Independent International Commission of Inquiry on Ukraine

The UN Human Rights Council established the Independent International Commission of Inquiry on Ukraine in March 2022 to investigate alleged violations and abuses of human rights, violations of international humanitarian law and related crimes in the context of the aggression against Ukraine by the Russian Federation. The Commission has produced reports covering a wide range of violations and alleged crimes in Ukraine, largely committed by Russian armed forces, and some by Ukrainian forces, including torture, rape and sexual violence that may amount to persecution. The Commission has documented cases of alleged sexual and gender-based violence committed by Russian authorities in multiple provinces of Ukraine and in the Russian Federation. These acts, which constitute crimes and human rights violations, were often committed alongside additional crimes and other grave human rights violations. The Commission has also reported that Russian and Ukrainian forces have committed alleged violations of human rights and crimes against LGBTQI+ people because of their sexual orientation or gender identity. These included raids on LGBTQI+ organizations, sexual violence, theft, unlawful detention, physical violence and threats of murder or killing against LGBTQI+ individuals. The Commission found that victims are at particular risk at checkpoints, where armed forces can inspect telephones, and potentially discover sings of the sexual orientation of the victims. In addition to being violations of human rights and international humanitarian law, these crimes may amount to gender persecution.

Independent International Fact-Finding Mission for the Sudan

In October 2023, the UN Human Rights Council established the Independent International Fact-Finding Mission for the Sudan for Sudan to investigate alleged human rights violations and violations of international humanitarian law in the context of the ongoing armed conflict that started in April of 2023 between the Sudanese Armed Forces and the Rapid Support Forces, as well as other warring parties.

In its first report released in September 2024, the Fact-Finding Mission concluded that RSF and allied militias committed the crimes against humanity of murder; torture; enslavement; rape, sexual slavery, and acts of a sexual nature of comparable gravity; persecution on the basis of intersecting ethnic and gender grounds in connection with the foregoing acts; and forcible displacement of population.

UN Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD) in Iraq

The UN Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD) is an investigative team that supports domestic efforts to hold ISIL in Iraq accountable. In December 2023, UNITAD produced a report on sexual violence against women and girls committed by ISIL in Iraq, which provides a robust analysis of gender persecution acts. UNITAD has reported to the UN Security Council multiple times on persecution, including crimes committed against LGBTQI+ persons. Since 2014, ISIL has imposed discriminatory gender regulations torturing and killing those who have transgressed them. Advocates have reported that ISIL fighters have enslaved women and girls, tortured women doctors and nurses who have not complied with oppressive dress codes that interfere with the performance of their medical duties, and executed women for resisting forced marriage or for serving as politicians. Men believed to be gay have been thrown off buildings. Women believed to be lesbians have been issued death warrants. Men without beards have been subjected to inhumane treatment. The HRGJ Clinic of CUNY Law School holds a formal agreement with UNITAD to share information about gender crimes that may amount to persecution.

The International, Impartial and Independent Mechanism – Syria (IIIM)

The International, Impartial and Independent Mechanism (IIIM)’s purpose is to assist in the investigation and prosecution of the most serious crimes in the Syrian Arab Republic (“Syria”). The 2022 IIIM Gender Strategy and Implementation Plan is part of the IIIM’s commitment to pursue inclusive justice for victims/survivors. The IIIM Gender Strategy includes strong statements about the importance of using the gender persecution framework to overcome historical silences. Advances such as the recognition of persecution on the basis of gender within legal frameworks are assisting its work. The IIIM is committed to ensuring that any role played by gender is accurately reflected when examining the facts of a crime. The HRGJ Clinic of CUNY Law School holds a formal agreement with the IIIM to share information about gender crimes that may amount to persecution committed by ISIL fighters.

The Independent International Commission of Inquiry on the Syrian Arab Republic

The UN Human Rights Council established the Independent International Commission of Inquiry on the Syrian Arab Republic to investigate human rights violations committed since March 2011 in the Syrian Arab Republic. The Inquiry reports that Syrians from all backgrounds experienced immense suffering and that women and girls were disproportionately affected and were victimized on multiple grounds. For example, the Commission reported that armed actors subjected women detainees to harassment, sexual violence and rape while they made male relatives listen to their screams while also detained. Between 2013 and 2016, the Islamic State in Iraq and the Levant (ISIL) also targeted LGBTQI+ persons. The Inquiry concludes that these types of crimes, including those targeting LGBTQI+ persons for reasons of their identity, constitute persecution.

Independent Fact-Finding Mission in Libya

The Independent Fact-Finding Mission on Libya (FFM) was established by the UN Human Rights Council in June 2020 to document alleged violations and abuses committed since 2016 in Libya, including gendered dimensions of those abuses. In its 2021 report, the FFM documented instances where rights activist were abducted and subsequently subjected to sexual violence to deter them from participating in public life. The FFM noted that imposed discriminatory sexual and gender regulations is alleged to drive violence directed against LGBTQI+ persons, as evidenced through cases of beatings and rape. The FFM found that sexual violence was used to silence those perceived to speak against state interests, challenging social norms or discriminatory gender roles. Repression of dissent involved violations of fundamental rights to freedom of expression, association, assembly and belief. Persons were arbitrarily detained, killed, tortured and subject to sexual and gender-based violence for transgressing oppressive political, religious, and social views and regulations, including for their opposition to patriarchy and sexism, as well as for their actual or perceived sexual orientations and gender identities. The ICC Prosecutor is also investigating crimes against humanity and war crimes in Libya. While Libya is not a State Party to the Rome Statute, the United Nations Security Council unanimously referred the situation in Libya in February 2011 to the ICC in Resolution 1970 (2011). ICC may therefore exercise its jurisdiction over crimes listed in the Rome Statute committed on the territory of Libya or by its nationals from February 15, 2011 onwards.

Group of Eminent Experts on Yemen

The UN Human Rights Council created the Group of Eminent Experts on Yemen in 2017 to examine human rights violations committed since 2014. The Experts Group reported that patriarchal gender attitudes marginalizing women and girls and discriminating based on sexual orientation and/or gender identity, are prevalent among all perpetrators within the conflict. The Experts Group also reported that the Houthis and Security Belt Forces committed acts of discrimination and violence based on sexual orientation and gender identity between 2016 and 2020. They subjected LGBTQI+ persons to arbitrary detention, ill-treatment, torture and sexual violence as interrogators accused them of spreading “prostitution” and homosexuality and supporting the enemy.

Independent International Fact-Finding Mission on the Islamic Republic of Iran

The UN Human Rights Council established the Independent International Fact-Finding Mission on the Islamic Republic of Iran in November 2022 to investigate human rights abuses committed in Iran, especially against women and girls. In April 2023, state authorities announced  a repressive enforcement of Iranian hijab laws. This enforcement subjects women and girls who fail to comply with restrictive and punitive measures. The Special Rapporteur on the situation of human rights in Iran, as well as several other United Nations experts, warn that these “draconian measures” may amount to gender persecution.

Independent International Fact-Finding Mission on Myanmar & The Independent Investigative Mechanism for Myanmar

In March 2017, the UN Human Rights Council established the Independent International Fact-Finding Mission on Myanmar (IIFFMM) to document alleged human rights violations by the Myanmar military and security forces in Myanmar, especially during “clearance operations” carried out in the Rakhine State. The IIFFMM reported found that the sexual violence against transgender people, as members of the Rohingya civilian population in Rakhine State, amounted to the crimes against humanity of torture, rape, other inhumane acts and persecution as part of the widespread and systematic attack against the Rohingya civilian population. Additionally, it concluded that women have had to bear the brunt of the conflict, suffering rape and other gender violence. Some were forcibly recruited in non-state actor regimes, and forced to perform “women’s work” such as cooking and cleaning. It found that Ethnic Armed Organizations (EAOs) forcibly married girls and potentially women as well, and raped women and then forced the victims to marry them to “restore harmony in the community.” These crimes may also amount to gender persecution. The IIFFMM has since submitted its evidence to the Independent Investigative Mechanism for Myanmar which has been monitoring the conflict after the closing of the fact-finding mission. The IIFFMM has since commenced a dedicated line of inquiry focusing on the experiences of Hijra community members as it continues to make gender-based crimes a priority in its investigations.

UN Office of the High Commissioner for Human Rights (OHCHR) Democratic People’s Republic of Korea (DPRK) Accountability Project

In 2014, UN Human Rights Council’s Commission of Inquiry on the Democratic People’s Republic of Korea (DPRK) issued a report concluding that gender persecution was occuring in the DPRK, 
in addition to other crimes against humanity. At the conclusion of the Commission of Inquiry, the DPRK Accountability Project was created under the UN Office of the High Commissioner for Human Rights (OHCHR)  to follow up on the reports of widespread and gross human rights violations. In April 2023, the UN Special Rapporteur on the situation of human rights in the DPRK issued a report on widespread gender stereotypes in the country that are the root cause of discrimination against women. According to escapee reports, women’s appearances, including clothes, hairstyles, and make-up are subject to the control of the State. These stereotypes also manifest in violence against women, harassment, and social inequality with little to no meaningful avenues for redress.

Workshop in The Hague with LGTBQI+ rights activists from around the world discussing the draft CAH treaty.

The Draft Crimes Against Humanity (CAH) Treaty and the Mutual Legal Assistance Initiative

In December 2017, concerned that the new draft crimes against humanity (CAH) treaty would likely not come with an international court that could apply the legal term of gender consistently with international law, Prof. Lisa Davis pulled together a coalition of organizations and universities. Building on the legacy work of Prof. Rhonda Copelon and the Women’s Caucus for Gender Justice, the Coalition sought to ensure that the draft treaty reflected the progress made since the Rome Conference and that it did not adopt the outdated definition of gender. By December 2018, the Coalition was successful in organizing hundreds of civil society members, states and UN experts who made their voices heard to the Commission and called for the removal or revision of the definition of gender. In its last and final report on the draft CAH treaty to the UN General Assembly in September 2019, the Commission removed the opaque definition of gender. Shortly after, the Coalition also successfully worked to remove the same outdated definition of gender in the Mutual Legal Assistance Initiative for the Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity, War Crimes, and other International Crimes. See the CUNY Law School timeline for how we won the campaign to remove the outdated definition of gender to the draft CAH treaty. But the work is not over. The draft treaty is not yet finalized, and is still slowly making its way through the United Nations.

Gender Persecution under Refugee Law: The UN Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) and the Refugee Convention

The UN Committee on the Elimination of Discrimination against Women (CEDAW Committee) established that the CEDAW Convention prohibits ‘gender-related persecution,’ in its General Recommendation No. 32 on the gender-related dimensions of refugee status, asylum, nationality and statelessness of women. The Committee observes that “understanding the way in which women’s rights are violated is critical to the identification of those forms of persecution.”

The UN High Commissioner for Refugees (UNHCR) also recognizes the role of socially constructed gender roles in persecution. In 2012, it released guidelines addressing refugee claims based on sexual orientation and gender identity, recognizing that LGBTQI+ persons are often persecuted because of “non-compliance with expected cultural, gender and/or social norms and values.” The guidelines further explain that LGBTQI+ persons are protected as a particular social group, as well as under the religion and political opinion grounds, under the 1951 Refugee Convention. The standards for persecution under refugee law are different than those under criminal law, but the recognition of gender persecution as grounds for asylum is nonetheless important for building meaningful recognition and redress for gender violence.

The Criminal Justice building in Hamburg, Germany, one the courts trying individuals for crimes against Yazidi women committed by members of ISIL.

Germany Affirms Persecution Based on Sexual Orientation is a Crime Against Humanity Under New Law

In June 2024, the German government amended its law on prosecuting international crimes. The law affirms that persecution based on sexual orientation is a crime against humanity and a prosecutable offense. The law makes it clear that the crime of gender persecution already covers persecution on the grounds of sexual orientation and that the amendment is merely intended to clarify this. German activists report that the OTP’s Policy on the Crime of Gender Persecution played a significant role in the decision to amend this provision. The law also makes great strides in strengthening sexual violence understandings and accountability.  Moreover, the law makes clear that sexual orientation is covered under the term “gender” reaffirming the OTP Policy on the Crime of Gender Persecution inclusive understanding of gender persecution victims – an important step under international criminal law.

Germany: Returning Islamic State of Iraq and the Levant (ISIL) Fighters from Syria

German authorities have brought charges of gender persecution as a crime against humanity in cases related to returning foreign Islamic State of Iraq and the Levant (ISIL) fighters. In June 2022, the Court found the defendant, known as Sarah O., guilty of gender persecution and other crimes against humanity. ICC Special Adviser Amal Clooney and German attorneys Natalie von Wistinghausen and Sonka Mehner represent one of the three Yazidi victims who participated in the case as co-plaintiffs. Gender Persecution was also charged in the cases against defendants known as Nadine K. (2022) and Jalda A. (2023). While the Higher Regional Court of Hamburg convicted her of crimes against humanity committed through persecution, amongst other crimes, the court did not explicitly recognize the gendered nature of these crimes.

Bosnia and Herzegovina (BIH): The War Crimes Chamber of the State Court of BiH

The War Crimes Chamber of the State Court of Bosnia and Herzegovina (BIH) in the Samardžić, Kujundžić, and Perković cases made findings of gender persecution.

Professor Lisa Davis speaking on behalf of the Accountability Working Group for the W7 Group of the G7 Process.

The W7 (Women 7) Group is the official “engagement group” on women and LGBTQI+ issues for the G7 (Group of Seven) government discussion forum. In its official 2022 Joint Comminiqué,
the W7 called on governments to “ensure that international and national accountability mechanisms, including transitional and restorative justice processes, investigate crimes that may amount to gender persecution in conflicts and atrocities.” It also called on governments to “[g]uarantee the effective implementation of UN Security Council Resolution 2467, which provides for a survivor-centered approach to accountability mechanisms.”

There are myriad forms of accountability, ranging from restorative justice models to traditional justice models, and they can happen in a number of forums, including international tribunals and domestic courts. The first step to any justice process, however, is agreement on what constitutes a crime or wrongdoing. Sustainable peace and holistic redress for harms caused during atrocities not only calls for accountability for crimes, but also for an understanding of why these crimes took place. Such recognition would demonstrate to the world that targeting women, girls, LGBTQI+ persons because of their gender is a crime against humanity. It would promote a survivor-centered approach, recognizing a broader range of survivors and their rights to participate in peace processes and transitional justice mechanisms. Finally, it would also help build sustainable peace, and disrupt the normalization of gender discrimination and violence institutionalized in existing law and practice.