The New Yorker, September 22, 2024

For the first time, the International Criminal Court has concluded that an armed group specifically targeted women.

By Jina Moore Ngarambe and J. Lester Feder

In the spring of 2012, members of a militia known as Ansar Dine seized control of Timbuktu, in Mali. The militia, which was working with Al Qaeda in the Islamic Maghreb, meant to restore “proper” Islam to a city it saw as corrupted by secular influence. It forbade women from wearing jewelry, leaving the house at night, being alone with men other than their husbands, and even from speaking to their own brothers-in-law and cousins. When more than a hundred women gathered to protest the rules, the militants fired shots in the air to disperse them.

The extremist group also required women to cover themselves almost entirely, and to dress in a way that concealed the shape of their bodies. Women and girls who were detained, often for violating the dress code, were at risk of rape. “We couldn’t go out; we couldn’t play or go to school,” a woman named Halimatou, who was fifteen when Ansar Dine invaded, recalled. Like many girls, she was married off to one of its fighters. More than a decade later, she and her family still suffer stigma from that forced marriage.

A French-led multinational force ousted Ansar Dine from much of northern Mali in January, 2013. Three of its members, so far, have been indicted at the International Criminal Court—and, in a historic verdict against one of them in late June, the court concluded, for the first time in its twenty-two-year history, that an armed group had committed the crime against humanity known as gender persecution. As one I.C.C. prosecutor put it in court, “women were targeted because they were women.” And yet, in a confounding verdict, Al Hassan Ag Abdoul Aziz, the de-facto chief of the Islamic police under the regime, was personally acquitted of gender-related charges against him. (He was convicted of six other war crimes and crimes against humanity.) As a result, the court’s milestone on gender justice has been largely overlooked.

Al Hassan had been accused of sentencing women who engaged in extramarital relations to floggings and, in at least one case, of participating in the punishment; of facilitating forced marriages between jihadis and girls; and of contributing to rape and sexual slavery. The evidence against him included the account of a woman named Azahara Abdou, who, in 2012, was approached by armed men who didn’t approve of how she wore her veil; they then went through her cell phone. When they found pictures of Céline Dion, they whipped her. The militants kept close watch on her after that, and, one day, when she stepped outside her house without a veil to hang her laundry, they arrested her.

Like other women detained by the group, Abdou was taken to a former bank building and held in an infamous “nightmare cell,” a small, urine-soaked room that had once housed an A.T.M. At one point, Abdou was removed from her cell and raped by five men. Another woman testified at the court that, at age thirteen, she was held in the same cell; during her detention, she was raped by three men. The conditions in which the women were kept were no secret: the former A.T.M. room had glass walls. “Sexual violence was not concealed in Timbuktu,” Bouaré Bintou Founé Samaké, the president of Mali’s chapter of the non-governmental organization Women in Law and Development in Africa (WILDAF), said. “Everyone knew what was happening in that prison.”

In its judgment, the I.C.C. found that Ansar Dine specifically targeted women and girls with a “discriminatory campaign,” based on the “specific roles and expectations assigned to women” in the group’s social and legal order. This simple recognition that gender crimes were committed on the basis of gender is a major step forward. “It has taken a very, very, very long time for judges to actually acknowledge that these crimes happen due to discrimination,” J. M. Kirby, a human-rights lawyer who directs advocacy for Madre, a global women’s-rights organization, said. “They’re acknowledging it’s misogyny driving rape, driving sexual slavery, driving forced marriage or torture.”

Women have been targeted in war for as long as wars have been fought; for centuries, their bodies were viewed as victors’ spoils. But even as the world denounced other forms of wartime violence, gender-based and sexual violence were largely ignored. Fifty years passed between the Nuremberg trials, which set an expectation that crimes committed in war would be punished, and the first significant prosecutions of sexual violence, at the international tribunal for war crimes in Yugoslavia. Another twenty years elapsed before prosecutors at the International Criminal Court won a sexual-violence case, against a Congolese militia leader who was convicted of rape in 2016 (though he was later acquitted).

Now the Al Hassan case establishes a clear precedent for charging gender persecution as a crime against humanity.

The verdict, however, was ambiguous. The gender-persecution finding had the support of only two of the trial chamber’s three judges. Judge Tomoko Akane dissented, arguing that the discrimination presented as evidence before the court was motivated by religion, rather than gender. Akane put a great deal of weight on the fact that Ansar Dine declared its purpose was to impose religious law but did not proclaim an intention to oppress women. She largely viewed the sexual abuse of women committed by Ansar Dine as “opportunistic” rather than systemic; any mistreatment of women, she argued, was a by-product of religious goals.

Judge Kimberly Prost, in her own opinion, suggested that Akane had missed the obvious. “[W]omen and girls were not only particularly affected” by Ansar Dine’s crimes, she wrote, “they were also specifically targeted on the basis of their gender.” Judge Antoine Kesia-Mbe Mindua joined her in affirming that Ansar Dine had committed gender persecution, but he disputed Al Hassan’s personal culpability. Al Hassan lacked “the soul of an Islamic terrorist,” he contended, and had acted out of fear for his life and for his family. Judges don’t generally rule on the state of a defendant’s soul, but Mindua seems to have had in mind witness statements that described Al Hassan’s participation in Ansar Dine’s crimes as perfunctory. On the basis of that supposed duress, Mindua exonerated Al Hassan from all charges, even for gender persecution and other crimes in which Mindua himself agreed that Al Hassan had participated.

The I.C.C.’s decision to acquit Al Hassan of gender persecution baffled many, including Halimatou. “If Al Hassan is not guilty,” she asked, “then who is?” For Valerie Oosterveld, a law professor at Western University, in London, Ontario, the complicated verdict feels “a lot like a step back.” Oosterveld, who in the nineteen-nineties helped negotiate the gender clause of the Rome Statute, under which all I.C.C. cases are prosecuted, noted that, for most of the past two decades, charges for gender crimes were dismissed or misinterpreted, or the prosecutors would fail to investigate them well enough to prove them beyond a reasonable doubt in the courtroom. In recent years, she said, it was beginning to feel “like the prosecution and the judges all ‘got it,’ so to speak.”

Samaké, of WILDAF—whose documentation of sexual violence in Mali contributed to the I.C.C. investigations—also expressed frustration with the ruling, and said that she expected the court’s experts to help the witnesses understand it. “Some of the victims travelled all the way to The Hague,” she said. Testifying in any international criminal trial can put witnesses at risk of retribution at home. “For me, personally, it’s a real disappointment.”

Karim A. A. Khan, who has made gender persecution a priority since becoming the court’s chief prosecutor, in 2021, said the case is still an important step forward. “We were heartened to see that two out of three judges affirmed our approach to the crime of gender persecution,” he said in an e-mail. “We can take this guidance forward in our other cases.” On Wednesday, his office appealed Al Hassan’s acquittals of gender crimes. (Al Hassan’s legal team filed an appeal of his convictions.)

A warrant against another Ansar Dine member, unsealed days before the Al Hassan verdict, also includes gender-persecution charges.

Gender-justice advocates hope that a major gender-persecution case will come from Afghanistan, where the prosecutor’s office opened an investigation in 2020. Khan wouldn’t comment on that investigation, but civil-society groups and legal-advocacy organizations are already amassing evidence that the Taliban’s treatment of women constitutes gender persecution. They are also documenting the targeting of L.G.B.T.Q.I. people, which Khan, in a 2022 policy paper, told prosecutors to treat as a form of gender persecution.

“Afghan women are looking to the International Criminal Court,” Shaharzad Akbar, the executive director of the Afghan human-rights organization Rawadari, said. “The gender-persecution framework provides a glimmer of hope that the Taliban can be held accountable for what they’ve done to women and girls.” ♦