Suzanne Varrall & Sarah Easy
On 5 December 2022, the 21st Session of the Assembly of State Parties (ASP) of the International Criminal Court (ICC) opened with the setting of a crowded agenda.
The ASP meets annually and operates like a legislature of the Court, approving budgets, electing ICC principal officers and approving the policy and strategic direction of the Court. While representatives of States Parties to the ICC’s Rome Statute have official status, many non-government actors are present for proceedings and engage with officials to advocate for the various stakeholders of the Court.
Unsurprisingly, the conflict in Ukraine cast a long shadow over the 2022 proceedings, and was used by many advocates as a clarion call for renewed financial and political support of the Court. In a particularly dramatic moment, the representative from Lithuania addressed the Assembly from the battleground via video link. However, the Ukraine conflict was only one of many desperate situations of alleged war crimes and crimes against humanity vying for the Court’s attention.
Thanks to the legacy of the Women’s Caucus for Gender Justice and the broader feminist movement, gender has been central to the mandate and legal framework of the ICC since the negotiation of its foundational legal document - the Rome Statute. To a greater or lesser extent, gender is always an issue for discussion at the ASP. While issues of gender did not feature heavily in the formal debates at the 2022 ASP, gender as a common theme was evident nonetheless in various policy, strategy and operational discussions.
In particular, gender concerns were prominent in the various side events and discussions adjacent to the main agenda items over the course of the five days of meeting. These tended to focus on three main areas: gender representation in ICC elections; gender diversity and the Rome Statute; and sexual and gender-based crimes litigation.
Gender representation in ICC elections
The election of judges and other positions within the ICC continued to be a priority area of reform in the wake of the 2020 report of the Independent Expert Review of the Court’s operations.1 Numerous State Parties expressed the need for better vetting mechanisms in electing only the most highly qualified officials - a concern echoed by the Lessons Learned Report, presented on the fifth day of the ASP.2
Yet the relevance of gender in ICC elections was limited to a question of equal representation in the workforce. For example, the need to maintain a gender balance amongst ICC staff was assigned “high priority” in a recommendation on the election of the Registrar, adopted by the ASP on the last day of the 21st session.3 Furthermore, a commitment to gender parity was reinforced by the launch of the Court’s new Strategy on Gender Equality and Workplace Culture4 driven by the Registry of the ICC.
In an apparent contradiction of the ICC’s new strategy, similar commitments to ensuring the election of ICC personnel with gender expertise did not materialise. This oversight may have particular ramifications for the judiciary who, despite more or less maintaining a gender balance on the bench, has largely struggled to implement a gender sensitive approach – which takes into account gender relations in its deliberations – to judging in the Court’s 20 years.5
Outside of the General Debate, the message from civil society to the ASP was clear: the practices of tenure and hiring officials according to State Party financial contributions must end in order to make way for staff from diverse backgrounds, including regional contexts and genders.
Gender diversity and the Rome Statute
Substantive issues of gender within the ICC’s legal framework garnered special attention at a number of side events hosted by civil society organisations. Among these, the event on gender diversity and the Rome Statute co-hosted by Africa Legal Aid and International Gender Champions proved especially insightful.
As panellist Alix Vuileman (Women’s Initiatives for Gender Justice) noted, while the Rome Statute was drafted to ensure that the Court possesses all the tools in its legislative framework to ensure a gender perspective in all that it does, nevertheless ensuring these tools are deployed effectively to secure gender inclusive justice remains an ongoing challenge.
Interestingly, those speaking at the gender diversity event often seemed at cross-purposes with other participants, revealing the complex, contested (and possibly confused) meanings of the notion of gender. Among the panellists, which included several current ICC judges, a spectrum of approaches was evident. On one hand, gender diversity was reduced to its most basic notion: an equal number of women in the workforce. But other views affirmed the socially constructed nature of “gender” under Article 7(3), and the particular need for the judiciary to be attentive to power relations and the unique experiences of LGBTQIA+ and gender diverse peoples.
Sexual and gender-based crimes litigation
Conflict-related sexual violence was the focus of at least three separate side events at the ASP, including one event focussing on a sustainable model for responding to conflict-related sexual violence in Ukraine, co-hosted by International Federation for Human Rights, Global Rights Compliance and Women’s Initiatives for Gender Justice. It is a regrettable fact that the ICC has an abysmal conviction record when it comes to sexual and gender-based crimes (SGBC). Civil society has sought to bring attention to the way the ICC deals with SGBC, and both the current and previous ICC Prosecutors have sought to improve the way these crimes are investigated, charged and prosecuted.
In particular, the Court is yet to secure a conviction for the crime of gender persecution, although this crime has recently been charged by the Prosecutor in three cases.6 In this context, the Office of the Prosecutor appointed a Special Adviser on Gender Persecution, Professor Lisa Davis (CUNY), in 2021. The 21st ASP saw the launch of the Prosecutor’s highly anticipated Policy on the Crime of Gender Persecution, which was presented to a full house on the margins of the ASP.7
The Policy strengthens the recognition of gender persecution in investigations and proceedings before the ICC and reaffirms the socially constructed nature of “gender” under Article 7(3) of the Rome Statute. Crucially, the Policy definitively establishes that, as with other forms of persecution, all persons can be subject to gender persecution because all persons have gender identities, just as all persons have racial and ethnic identities.
Whilst the Policy represents a powerful tool for closing the impunity gap for international crimes of gender persecution, its efficacy will be limited unless accompanied by a similar gender-sensitive practice manual for the judiciary, as well as gender sensitivity training. These concerns have been voiced publicly by the ICC Feminist Judgment Project.8
A future gender agenda
At the end of the day (or more accurately, the week), among the various statements that were made, resolutions passed, and policies launched, the bandwidth devoted to gender issues at the 21st ASP was limited - both in breadth and depth. There is clearly much work to be done to deliver gender-inclusive international justice as far as the ICC is concerned, and a significant role for the judiciary to play in realising this goal.
Suzanne Varrall is a PhD candidate at UNSW and Associate of the Australian Human Rights Institute. Sarah Easy is currently pursuing a Master’s in Human Rights and Humanitarian Action at Sciences Po Paris and is a Research Assistant at the Australian Human Rights Institute.
Suzanne and Sarah are members of the Australian Human Rights Institute’s research project: ‘Reimagining judging in international criminal courts: a gendered approach’. They attended the 21st Session of the Assembly of States Parties of the International Criminal Court in The Hague from 5-9 December 2022, as part of the Women’s Initiatives for Gender Justice delegation.
1.Independent Expert Review of the International Criminal Court and the Rome Statute System Final Report, (2020) <https://asp.icc-cpi.int/sites/asp/files/asp_docs/ASP19/IER-Final-Report-ENG.pdf>.
2. Report by the facilitators on the third election of the Prosecutor of the ICC – Lessons learnt, (2022) <https://asp.icc-cpi.int/sites/asp/files/2022-10/ICC-ASP-21-16-ENG.pdf>.
3. Recommendation ICC-ASP/21/Rec.1, (2022) <https://asp.icc-cpi.int/sites/asp/files/2022-12/ICC-ASP-21-Rec.1-ENG.pdf>.
4. Zero Draft Strategy on Gender Equality and Workplace Culture for the International Criminal Court, (2022), <https://www.icc-cpi.int/sites/default/files/itemsDocuments/gender-equality-strategy-eng.pdf>.
5. Currently, 50% of justices at the ICC are women, although this figure sat much lower at just 33% between 2015 and 2020The Coalition for the ICC Elections Team, ‘Gender Representation on the ICC Bench’, (2020) <https://coalitionfortheicc.org/sites/default/files/cicc_documents/CICC%20Elections%20Team%20statement%20gender%20representation.pdf>.
6. The Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman, ICC-02/05-01/20; The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, ICC-01/12-01/18; and The Prosecutor v. Mahamat Said Abdel Kani, ICC-01/14-01/21.
7. Policy on the Crime of Gender Persecution, (2022), <https://www.icc-cpi.int/sites/default/files/2022-12/2022-12-07-Policy-on-the-Crime-of-Gender-Persecution.pdf>.
8. Submission to the Office of the Prosecutor, Public Consultation on Policy Initiative to Advance Accountability for the Crime Against Humanity of Persecution on the grounds of Gender Under the Rome Statute, (2022) <https://www.humanrights.unsw.edu.au/sites/default/files/documents/Feminist%20Judgments%20ICC%20Project%20-%20Gender%20Persecution%20Policy%20Submission.pdf>.