The pursuit of gender equality

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

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

A French-led multinational force drove Ansar Dine out of much of northern Mali in January 2013. Three of its members have so far been charged before the International Criminal Court—and in a historic ruling against one of them in late June, the court concluded for the first time in its 22-year history that an armed group had committed the crime against humanity known as gender-based persecution. As one ICC prosecutor put it in court, “Women were targeted because they were women.” And yet, in a baffling ruling, Al Hassan Ag Abdoul Aziz, the de facto head of the regime’s Islamic police, was personally acquitted of the gender-based 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 was accused of sentencing women who had extramarital relationships to flogging and of participating in the punishment in at least one case; of facilitating forced marriages between jihadists 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 did not approve of the way she wore her veil; then they searched her phone. When they found pictures of Celine Dion, they flogged her. The militants kept a close eye on her after that, and one day when she left her house without a veil to hang out her laundry, they arrested her.

Like other women arrested by the group, Abdou was taken to a former bank building and held in a notorious “nightmare cell,” a small, urine-soaked room that used to house an ATM. At one point, Abdou was taken from her cell and raped by five men. Another woman testified in court that she was held in the same cell at age thirteen; during her detention, she was raped by three men. The conditions in which the women were held were no secret: the former ATM room had glass walls. “Sexual violence was not hidden in Timbuktu,” said Bouaré Bintou Founé Samaké, president of the Malian branch of the nongovernmental organization Women in Law and Development in Africa (WILDAF), said: “Everyone knew what was happening in that prison.”

In its ruling, the ICC found that Ansar Dine had deliberately targeted women and girls in a “discriminatory campaign” based on the “specific roles and expectations” ascribed to women in the group's social and legal order. This simple recognition that gender-based crimes were committed because of gender is a major step forward. “It has taken a very, very, very long time for judges to actually acknowledge that these crimes are happening because of discrimination,” said JM Kirby, a human rights lawyer who leads the advocacy group Madre, a global women's rights organization. “They are recognizing that misogyny is the reason for rape, sexual slavery, forced marriage or torture.”

Women have always been victims of war; for centuries their bodies were considered the spoils of the victors. But while the world denounced other forms of war violence, gender and sexual violence were largely ignored. Fifty years passed between the Nuremberg trials, which raised expectations that crimes committed in war would be punished, and the first significant sexual violence trials at the International War Crimes Tribunal in Yugoslavia. Another twenty years passed before prosecutors at the International Criminal Court won a sexual violence case: a Congolese militia leader who was convicted of rape in 2016 (but later acquitted).

Now the Al Hassan case sets a clear precedent that denounces persecution on the basis of gender as a crime against humanity.

The verdict was not unequivocal, however. The finding that this was persecution on the basis of gender was supported by only two of the three judges of the trial chamber. Judge Tomoko Akane dissented, arguing that the discrimination presented as evidence to the court was religiously motivated rather than gender-based. Akane placed great emphasis on the fact that while Ansar Dine had stated that its aim was to enforce religious laws, it was not to oppress women. She viewed Ansar Dine's sexual abuse of women as broadly “opportunistic” rather than systematic; any mistreatment of women, she argued, was a byproduct of religious goals.

Judge Kimberly Prost, for her part, said Akane had missed the obvious.”[W]Not only were men and girls particularly affected” by Ansar Dine's crimes, she wrote, “they were also specifically targeted because of their gender.” Judge Antoine Kesia-Mbe Mindua agreed with her, confirming that Ansar Dine had committed gender-based persecution but denying Al Hassan's personal culpability. Al Hassan lacked “the soul of an Islamic terrorist,” he claimed, and acted out of fear for his life and his family. Judges do not normally rule on the state of mind of a defendant, but Mindua appears to have had in mind witness testimony that described Al Hassan's involvement in Ansar Dine's crimes as superficial. On the basis of this perceived coercion, Mindua acquitted Al Hassan of all charges, even the charges of gender-based persecution and other crimes in which Mindua himself agreed Al Hassan was involved.

The International Criminal Court's decision to acquit Al Hassan of gender-based persecution has stunned many, including Halimatou. “If Al Hassan is not guilty,” she asked, “who is?” For Valerie Oosterveld, a law professor at Western University in London, Ontario, the complicated verdict feels “like a step backwards.” Oosterveld, who helped negotiate the Rome Statute's gender clause in the 1990s, under which all International Criminal Court cases are prosecuted, noted that over the past two decades, charges of gender-based crimes have largely been dismissed or misinterpreted, or prosecutors have failed to investigate them thoroughly enough to prove them beyond a reasonable doubt in the courtroom. In recent years, she said, it feels “as if the prosecution and the judges all 'got it,' so to speak.”

Samaké, from WILDAF– whose documentation of sexual violence in Mali contributed to the ICC investigation – also expressed frustration with the verdict and said she expected the court's experts to help witnesses understand it. “Some of the victims travelled all the way to The Hague,” she said. Testifying in an international criminal trial can risk reprisals at home. “For me personally, this is a real disappointment.”