Gender Persecution in The Prosecutor v Ali Muhammad Ali Abd-Al-Rahman

In October 2025, Abd-Al-Rahman became the first person convicted of the crime of gender persecution at the International Criminal Court (ICC). This perspective outlines the charges of gender persecution, and considers the judgment in The Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman in conjunction with the two others before the ICC which also contain the charge (The Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud and the Prosecutor v Mahamat Said Abdel Kani). The conviction in Abd-Al-Rahman for gender persecution in relation to crimes committed against men and boys in Kodoom and Bindisi is significant, however it also highlights a pervasive silence in the current jurisprudence. Sexual and gender based crimes against women and girls were presented by the Prosecution in this case, yet these were not simultaneously alleged to also be persecution on gender grounds. This perspective therefore illustrates how gender persecution has been used by the ICC Prosecutor, and where there are potential gaps in the jurisprudence. This piece utilises work created with Dr. Rosemary Grey of the University of Sydney in 2022.

Introduction

On 6 October 2025, the ICC’s Trial Chamber I handed down its decision in The Prosecutor v Ali Muhammad Ali Abd-Al-Rahman (Abd-Al-Rahman). This is the first conviction in a series of six cases before the ICC concerning the situation in Darfur, Sudan. The trial against Abd-Al-Rahman commenced on 5 April, 2022, after Pre-Trial Chamber II confirmed 31 charges of war crimes and crimes against humanity on 9 July 2021. In its judgment, Trial Chamber I found Abd-Al-Rahman guilty of 27 counts of war crimes and crimes against humanity. Abd-Al-Rahman was sentenced to 20 years imprisonment. One of the charges alleged against Abd-Al-Rahman was persecution on intersecting political, ethnic, and gender grounds. Trial Chamber I convicted Abd-Al-Rahman of persecution on gender grounds, making this the first conviction for this crime in the history of international criminal law.

Gender persecution at the International Criminal Court

Gender persecution is located under crimes against humanity, in article 7(1)(h), and is to be read in conjunction with article 7(2)(g). Gender persecution has recently been charged in three separate cases before the ICC: The Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (Al Hassan) from the Situation in Mali, The Prosecutor v Abd-Al-Rahman (Abd-Al-Rahman) from the Situation in Sudan and the Prosecutor v Mahamat Said Abdel Kani (Said) from the Situation in the Central African Republic II. While Said is still before the ICC (closing statements scheduled for November 2025), a close reading of the decisions in Al Hassan and Abd-Al-Rahman reveal much about how the ICC is approaching the crime of gender persecution.

The trial of Abd-Al-Rahman

The conflict in Darfur, Sudan, was referred to the ICC by the United Nations Security Council in March 2005. Abd-Al-Rahman concerned incidents allegedly occurring from at least April 2003 until at least April 2004, and designated as a non-international armed conflict. The parties of this conflict were the militia/Janjaweed forces, aligned with the Sudanese government (GoS forces), and so called rebel groups. The GoS forces are widely perceived as ethnically Arab, while the rebels, made up mostly from the Fur, Zaghawa, and Masalit tribes, are widely perceived as ‘African’. Abd-Al-Rahman was charged as an alleged senior leader of the GoS forces, being responsible for the locality of Wadi Salih, which includes the villages of Bindisi, Kodoom, and Deleig, while also being responsible for the locality of Mukjar.

It was alleged that Abd-Al-Rahman executed a State policy, confirmed through a National Security Council emergency plan, which was issued in or around May 2003. Through this plan, GoS forces were granted the authority to target villages and civilians perceived to be sympathetic to rebel groups. In complying with this policy, it was alleged a ‘scorched earth’ approach was taken (Document Containing the Charges [63]). Intense violence was allegedly used, suspects were summarily executed, rape and assault were common, crops and animals were pillaged, and villages were razed (see, for example, Document Containing the Charges, subsection B).

The charge of gender persecution was alleged against Abd-Al-Rahman in relation to actions which took place against men and boys in the region of Mukjar between February and March 2004 (count 21), and the village of Deleig between 5 to 7 March, 2004 (count 31). These charges of gender persecution were brought on an intersecting basis alongside political grounds (perceived support for, or association with armed groups), and ethnic grounds (Fur ethnicity). In these incidents, it was alleged that under the direction and/or direct perpetration of Abd-Al-Rahman, Fur men and boys were rounded up, arrested, and experienced inhumane detention. This included cramped cells, lack of access to food and/or water, limited or no access to toilet facilities, experiences of torture, and being forced to lay face down in the sun with hands tied behind their backs. The use of ethnic slurs and pejorative language was also alleged. It was further alleged that some of these men and boys were then executed and buried in mass graves. Two men, Jenif and Sheikh Motor, were alleged to have been murdered by Abd-Al-Rahman at the detention sites.

Trial Chamber I found Abd-Al-Rahman was responsible for direct perpetration of the crimes committed during the incidents at both Mukjar and Deleig. In the decision, Trial Chamber I found that Abd-Al-Rahman had committed torture, outrages upon personal dignity, and murder. These crimes then formed the requisite connection to underlying conduct within the jurisdiction of the Court to consider the crime of persecution [788].

In the judgment, Trial Chamber I considered the crime of persecution, and noted that victims can experience discrimination ‘because of the intersection of different factors’ [787] (original emphasis). This is echoed through the judgment as the Fur ethnicity as well as the male gender identity are joined. Drawing on the factual findings, Trial Chamber I noted that in both the Mukjar and Deleig incidents, Fur men were targeted, detained, and summarily executed, while in Deleig women, some boys, and elderly men were not arrested. Trial Chamber I also noted that in Mukjar, men were separated from women and children, and women, children, and elderly men were not arrested. Trial Chamber I also recalled that during the Mukjar incident, the accused told the Janjaweed forces to ‘kill or wipe [out]’ all men but not women [934].

Discriminatory intent was sufficiently met, as Trial Chamber I recorded that ‘the Janjaweed and GoS Forces targeted predominantly Fur men of fighting age based on the perception that they were affiliated with the rebels, and the fact that they were Fur, thus discriminated against them based on their political affiliation, ethnic identity and perceived gender role’ [936]. The perceived gender roles related to Fur men being seen as performing the socially constructed roles of community fighters and defenders. The reliance on this social construct by Abd-Al-Rahman and the GoS forces was the connected gender link.

In the sentencing decision, Trial Chamber I confirmed that the actions were of serious gravity. The Trial Chamber noted the ‘multiplicity and nature of the fundamental rights violated’ and that infringements of the rights were ‘compounded by the intersection of ethnic, political, and gender discriminatory grounds’[271; 276]. Both counts of gender persecution were determined to merit a term of imprisonment of 18 years, respectively [274; 279].

Silences in the gender persecution cases at the ICC

This first conviction for gender based persecution is indicative for its findings, but also its silences. As noted earlier, this is the second of three cases in which the crime of gender persecution has been alleged. In Said and Abd-Al-Rahman, the charges related to conduct against men and boys, while the decision in Al Hassan concerned conduct committed against women and girls. That allegations of gender persecution succeeded in Abd-Al-Rahman but failed in Al Hassan bears some consideration.

Al Hassan was acquitted of the gender persecution charges in the judgment delivered 26 June 2024. Three separate opinions formed the decision, with Judge Kimberley Prost and Judge Antione Kesia-Mbe Mindua finding that gender persecution had occurred against women and girls in Timbuktu, Mali from 2012 – 2013, but only Prost found Al Hassan responsible for it. As Judge Tomoko Akane found that no gender persecution occurred (and therefore Al Hassan could not be responsible), the gender persecution charges failed. Rosemary Grey and Valerie Oosterveld’s two-part piece traces the three separate opinions handed down, and considers how the Al Hassan case, which was considered a ‘soft entry point’ to adjudicate gender persecution, did not result in a guilty verdict.

What the Al Hassan and Abd-Al-Rahman judgments demonstrate is the current unease around the crime of gender persecution within international criminal law, and the ICC.  As Grey and Oosterveld’s second piece notes, in Al Hassan, Mindua accepted the defences of duress and mistake of law, while Akane found that the sexual violence was not part of the broader group’s common purpose, instead being committed by a few ‘bad apples’. This treatment of sexual and gender based violence against women and girls as beyond the scope of gender persecution is silencing and obfuscation. This silencing is mirrored in Abd-Al-Rahman, whereby allegations of sexual and gender based violence were treated only as such, and not broadened to include gender persecution. For example, in the Pre-Confirmation Brief there were allegations of rape occurring in the villages of Bindisi and Kodoom [127], noting accounts of women being raped while perpetrators stated ‘we have taken the Tora Bora’s wives, praise be to god’ [136], and the separation of women in Bindisi who were stripped of outer clothing and some raped [181], [183]-[186]. In the Document Containing the Charges, these allegations were again made [89]. In Transcript T008, there was discussion of rape against women being used in a systematic manner (start page 44). Why these were not charged as gender persecution may amount to an evidentiary issue; however, if the separation and targeting of men and boys met the Prosecutor’s threshold, it is curious as to why these incidents against women and girls did not.

As Lisa Davies, ICC Special Advisor on Gender Persecution, noted in a March 2023 presentation at the University of Sydney, the central consideration in cases where gender persecution may have occurred must by why the crime occurred; if the answer is due to an intent to discriminate based on gendered grounds, then a charge of gender persecution could be levied. This ‘why’ question was applied in Abd-Al-Rahman; the answer being that men and boys were targeted because of their perceived roles as fighters. The lack of application of this formula to the rape and sexual assault of women because of their roles within their community is disappointing. It will be interesting to see the application and adjudication of gender persecution in the upcoming Said decision, with gender persecution charges also relating to the targeting of men. In future cases, a deliberate and methodical factoring of gender into intent analyses must occur. It is hoped that a purposeful questioning of why crimes are committed will lead to findings that gender persecution against women and girls does, and can, occur, including alongside gender persecution against men and boys and crimes will be charged, and judged, as such.