Investigative and Charging Considerations for International Crimes Targeting Individuals on the Basis of Sexual Orientation and Gender Identity

Abstract

Abstract International crimes targeting persons based on their sexual orientation and gender identity have been documented since at least the Nazi persecution and murder of LGBTIQ+ persons in World War II, and continue in modern campaigns by ISIS in Iraq, among other places. Yet few, if any, perpetrators have ever been held accountable for such crimes, and there remains a dearth of specialized practical guidance for investigators or prosecutors. Attempting to fill this gap in scholarship and practice, this article outlines the legal basis for possible crimes under the Rome Statute of the International Criminal Court (ICC) as well as investigative and prosecutorial guidelines for them. First, it demonstrates how gender persecution in the Rome Statute includes persecution on the basis of sexual orientation or gender identity, as found in a recent case at the Colombian Special Jurisdiction for Peace (‘Jurisdicción Especial para la Paz’ or JEP). Drawing on recent ICC cases from Mali and Sudan, as well as preliminary examinations conducted in Afghanistan and Nigeria, this article further explains how the social construction of gender underpins gender persecution in the ICC system. Second, this article outlines additional avenues under the Rome Statute for accountability for violence against LGBTIQ+ persons, including the war crime of torture, or as demonstrated in the Myanmar/Bangladesh situation, to prove contextual elements of crimes against humanity. Finally, this article offers concrete recommendations for investigators and prosecutors examining these international crimes, using an intersectional, gender-competent and trauma-informed lens to better understand and address victims’ trauma, to present their evidence effectively in court, and to obtain the most complete, truthful and coherent account of events possible. It concludes that there are multiple avenues through which such evidence can be investigated and elicited in court, and encourages practitioners to do so when possible to document and honour the particularized harm this group experiences.