gender, sexual orientation and international criminal law

he title of this thesis is gender, sexual orientation and international criminal law. The aim therefore is to analyse article 7 of the Rome Statute of the International Criminal Court which refers to the crime of gender-based persecution. Paragraph 3 of article 7 defines gender as ‘the two sexes male and female within the context of society’. The Rome statute is the first international statute that contains among the grounds the ground of gender-based persecution. Gender as pointed out in paragraph three of article 7 is a social construct. Indeed, it refers to those roles behaviours and attitudes that the society assigns to and expects from males and females on the basis of their biological sex. For example, in one of the cases that will be analysed, The Prosecutor vs Ali Muhammad Ali Abd-Al-Rahman men were persecuted because the persecutors thought that they were fighters belonging to the Fur ethnicity, an ethnic group that the persecutors wanted to dismantle. The persecutors automatically considered men to be fighters even though many of them were not because of the social construct according to which men are expected to be strong and to fight. Whereas as far as women were concerned, the persecutors did not consider the option that they could also be fighters because once again according to the social construct women do not have the necessary strength and attitude to be fighters. Because of this, some men tried to wear women’s clothes in order to escape and avoid the persecution, however, unfortunately they were captured and killed. Before analysing the cases, there is a literature analysis, and the purpose is to illustrate some of the scholar’s considerations regarding the definition of gender in the Rome statute. After that, there will be an analysis of the Office of the prosecutor’s policy on gender-based crimes of 2023. Then, to understand in practice how the ICC deals with these crimes three cases will be presented. The first one is: The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, the second case that is presented is The Prosecutor v. Mahamat Said Abdel Kani ('Mr Said’) whose trial is still on going. The last case is The Prosecutor vs Ali Muhammad Ali Abd-Al-Rahman whose trial is still ongoing. As far as sexual orientation is concerned, there will be an analysis of the attempted prosecution of crimes committed on the basis of the alleged sexual orientation of the victim. The book rainbow jurisdiction at the International Criminal Court: Protection of Sexual and Gender Minorities under the Rome Statute will be analysed and used as a tool to better understand the cases. Two cases will be analysed. First of all, the situation in Uganda where people who are or are allegedly considered by the government as belonging to the lgbtqi+ community suffer a severe persecution. Other states like the U.S. had tried to contrast this phenomenon and it will be explained in more details how. Furthermore, in Germany there has been an attempt to prosecute Chechnya for crimes committed against lgbtqi+ people. Both these attempts to prosecute have not been concluded yet, and since they are both still on going, the outcome is not yet clear. Lastly, it will be illustrated the methodology used in this thesis and the demand research, the analysis that has been made and the results that it produced. Finally, the limitations in the field will be illustrated together with possible areas of future research.

The title of this thesis is gender, sexual orientation and international criminal law. The aim therefore is to analyse article 7 of the Rome Statute of the International Criminal Court which refers to the crime of gender-based persecution. Paragraph 3 of article 7 defines gender as ‘the two sexes male and female within the context of society’. The Rome statute is the first international statute that contains among the grounds the ground of gender-based persecution. Gender as pointed out in paragraph three of article 7 is a social construct. Indeed, it refers to those roles behaviours and attitudes that the society assigns to and expects from males and females on the basis of their biological sex. For example, in one of the cases that will be analysed, The Prosecutor vs Ali Muhammad Ali Abd-Al-Rahman men were persecuted because the persecutors thought that they were fighters belonging to the Fur ethnicity, an ethnic group that the persecutors wanted to dismantle. The persecutors automatically considered men to be fighters even though many of them were not because of the social construct according to which men are expected to be strong and to fight. Whereas as far as women were concerned, the persecutors did not consider the option that they could also be fighters because once again according to the social construct women do not have the necessary strength and attitude to be fighters. Because of this, some men tried to wear women’s clothes in order to escape and avoid the persecution, however, unfortunately they were captured and killed. Before analysing the cases, there is a literature analysis, and the purpose is to illustrate some of the scholar’s considerations regarding the definition of gender in the Rome statute. After that, there will be an analysis of the Office of the prosecutor’s policy on gender-based crimes of 2023. Then, to understand in practice how the ICC deals with these crimes three cases will be presented. The first one is: The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, the second case that is presented is The Prosecutor v. Mahamat Said Abdel Kani ('Mr Said’) whose trial is still on going. The last case is The Prosecutor vs Ali Muhammad Ali Abd-Al-Rahman whose trial is still ongoing. As far as sexual orientation is concerned, there will be an analysis of the attempted prosecution of crimes committed on the basis of the alleged sexual orientation of the victim. The book rainbow jurisdiction at the International Criminal Court: Protection of Sexual and Gender Minorities under the Rome Statute will be analysed and used as a tool to better understand the cases. Two cases will be analysed. First of all, the situation in Uganda where people who are or are allegedly considered by the government as belonging to the lgbtqi+ community suffer a severe persecution. Other states like the U.S. had tried to contrast this phenomenon and it will be explained in more details how. Furthermore, in Germany there has been an attempt to prosecute Chechnya for crimes committed against lgbtqi+ people. Both these attempts to prosecute have not been concluded yet, and since they are both still on going, the outcome is not yet clear. Lastly, it will be illustrated the methodology used in this thesis and the demand research, the analysis that has been made and the results that it produced. Finally, the limitations in the field will be illustrated together with possible areas of future research.