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Gender-based persecution as a crime against humanity: the road ahead


Grey, R and O'Donohue, J and Rosenthal, I and Davis, L and Llanta, D, Gender-based persecution as a crime against humanity: the road ahead, Journal of International Criminal Justice, 17, (5) pp. 957-979. ISSN 1478-1387 (2019) [Refereed Article]

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Copyright 2019 The Authors. This is a pre-copyedited, author-produced version of an article accepted for publication in Journal of International Criminal Justice following peer review. The version of record is available online at:

DOI: doi:10.1093/jicj/mqz048


In 2019, in the case of Prosecutor v. Al Hassan, Prosecutor Bensouda sought confirmation of the first charge of gender-based persecution at the International Criminal Court (ICC). Given that no previous international tribunal had jurisdiction to prosecute persecution on ‘gender’ grounds, this was an important first step towards developing the jurisprudence on this crime. Meanwhile, the Rome Statute’s definition of ‘gender’ has been discussed and debated in the International Law Commission (ILC) in the context of the ongoing development of draft articles on crimes against humanity. In the context of these recent developments in the ICC and ILC, this article closely examines the Rome Statute’s definition of ‘gender’, and explores what ‘gender’ means as a ground of persecution. We conclude that as a result of the definition agreed to at the 1998 Rome Diplomatic Conference, the Rome Statute’s definition of ‘gender’ captures the social aspects of gender, consistent with widely accepted practice at the time of the Statute's adoption and in the two decades since. These are important facts to hold on to as the focus on the definition of ‘gender’ intensifies, the ICC’s jurisprudence on gender-based persecution evolves, and efforts advance to develop a new convention on crimes against humanity.

Item Details

Item Type:Refereed Article
Keywords:gender, international criminal law, International Criminal Court, United Nations, crime against humanity, persecution, sexual and gender-based crimes
Research Division:Law and Legal Studies
Research Group:International and comparative law
Research Field:International criminal law
Objective Division:Law, Politics and Community Services
Objective Group:Community services
Objective Field:Gender and sexualities
UTAS Author:Rosenthal, I (Ms Indira Rosenthal)
ID Code:139580
Year Published:2019
Web of Science® Times Cited:7
Deposited By:Law
Deposited On:2020-06-23
Last Modified:2020-07-24
Downloads:6 View Download Statistics

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