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Identifying gender persecution in conflict and atrocities: A toolkit for documenters, investigators, and adjudicators of crimes against humanity [EN/RU]

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INTRODUCTION

In conflicts and atrocities across the globe, from Iraq to Colombia, armed actors have perpetrated gender-based crimes amounting to persecution as a crime against humanity in an effort to reinforce oppressive, discriminatory gender narratives. Rarely documented, perpetrators are hardly ever held accountable for these crimes. As a result, their crimes of persecution are often excluded from consideration by international and domestic tribunals, and in effect, are left out of history.

Evidence of gender-based crimes appears in modern international criminal law judgments, dating as far back as the International Military Tribunals of World War II. However, the crime against humanity of persecution on the grounds of gender—referred to here as gender persecution— was not an enumerated crime until the adoption of the 1998 Rome Statute, which governs the International Criminal Court (ICC). Despite over twenty years of official recognition, rarely is gender persecution specifically documented. Thus, perpetrators either evade accountability or are only prosecuted and tried for the underlying crimes, which do not fully represent their criminal conduct or the crimes suffered by the victims, nor the reasons for committing such a crime.

Until recently, gender persecution had not been prosecuted, leaving a gap in the development of international criminal jurisprudence. This jurisprudential silence is compounded by the lack of enumeration of gender persecution as a crime against humanity in the statutes of international criminal tribunals, other than that of the ICC, and in national penal codes. As a result, gender persecution is rarely investigated or charged, whether in international or domestic courts. It is omitted from the historical record, despite its consistent occurrence.

The Identifying Gender Persecution in Conflicts and Atrocities Toolkit is designed to provide investigators, lawyers, advocates, documenters, first responders and others who engage in identifying gender-based crimes or their victims in conflict and atrocity settings a framework for recognizing and understanding illicit conduct that amounts to gender persecution. There are myriad fora where accountability might be rendered, ranging from international tribunals to domestic court proceedings to restorative justice models, but a first step to any justice process is agreement on what constitutes gender persecution. The toolkit discusses the need for the recognition of gender persecution as a crime against humanity. How accountability for gender persecution should be rendered is outside its scope.

As with all forms of persecution, accountability for gender persecution requires establishment of the underlying discrimination. Targeting women, men, girls, boys, LGBTIQ+, non-binary and gender non-conforming persons on gender grounds is a crime against humanity. Redressing gender persecution would promote a survivor-centered or victim-centered approach and recognize their rights to participate in peace and transitional justice mechanisms. Finally, it would help build sustainable peace and disrupt the normalization of gender discrimination and violence institutionalized in existing law and practice.