Women and Justice: Keywords

Under Article 7 of the Rome Statue, sexual and gender-based crimes can amount to crimes against humanity. Although terminated by the ICC because of insufficient evidence, this case clarifies the principles for prosecuting these crimes. Charges for the crimes against humanity of murder, forcible transfer of population, and persecution were brought due to the post-election violence in Kenya, where an attack allegedly targeted ethnic groups perceived as supporters of the Party of National Unity. The ICC determined the key elements of such crimes against humanity are: (i) an attack against civilians who were the primary object of the attack; (ii) widespread or systematic attacks with acts of violence having an organised nature; (iii) attacks committed pursuant to a State or an organisational policy; (iv) a nexus between the individual act and the attacks; (v) the organizer intended and had knowledge of the attacks.

Article 7(1)(h). Persecution on the basis of gender. Under the Rome Statute, persecution on the basis of gender is specifically included as a crime against humanity. This means that the ICC has jurisdiction over crimes involving the intentional and severe deprivation of fundamental rights contrary to international law against a group targeted on the basis of gender. Although the ICC has not yet brought a prosecution in respect of this crime, there are crimes under preliminary examination. For example, the Prosecutor has found a reasonable basis to believe that gender-based persecution has been committed in Nigeria by Boko Haram. The Prosecutor’s Office has identified that, by reason of their religion or for attending school, Boko Haram has carried out sexual violence against women and girls, including abductions, sexual slavery, and forced marriages. This offence is significant in being the only sexual and gender-based crime that requires discriminatory intent, as the Prosecutor must prove the crime was based on gender grounds. The crime is also an important recognition of the need to combat impunity for systematic persecutions on the basis of gender.