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In recent years, issues of gender discrimination and gender violence have been raised in various countries. In Japan, too, movements surrounding gender violence have become more active and are attracting attention. For example, a "flower demonstration" was held nationwide to protest against the succession of acquittals in sexual violence trials and to call for the eradication of sexual violence. The news that the speech given by the then-president of the Tokyo Organizing Committee for the Olympic and Paralympic Games at an extraordinary council meeting was criticized both at home and abroad for being gender discriminatory, leading to his resignation as president, is still fresh in our memory. It is believed that protests by civic groups advocating for women's human rights played a significant role in this.

I believe that such activities by civil society groups and women's activists are extremely important. In 1998, the Rome Statute was adopted to establish the first ever permanent International Criminal Court (ICC), which included many progressive provisions on gender crimes. For example, it explicitly prohibited not only rape but also various forms of gender violence, such as sexual slavery, forced pregnancy, and forced sterilization, as separate war crimes and crimes against humanity for the first time. Prior to the establishment of the ICC, international criminal courts specially established to try international crimes committed in specific conflicts, such as the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, had the authority to try crimes against humanity, such as "persecution" based on "political," "racial," and "religious" reasons, but the ICC can prosecute "persecution" based on a wider range of reasons, one of which is "gender." The background to the inclusion of such progressive provisions in the Rome Statute is that women's activists provided their expert knowledge and engaged in enthusiastic lobbying during the process of drafting the Statute and negotiating its contents at international conferences, which had a major impact. The Rome Statute was ultimately adopted at the Rome Conference in 1998 with 120 countries (including Japan) in favor, but the progressive provisions were not decided upon from the beginning of the draft; it was also created as a result of citizens raising their voices. For this reason, I think it is very important for citizens to raise their voices.

I am mainly researching international criminal law and international human rights law, which started when I became involved in the East Timor issue. I am an Australian citizen, and during my university days, I learned that the Australian government had been complicit in the Indonesian military's invasion and occupation of East Timor since 1975. I was shocked to learn that my country had also participated in the military invasion and illegal occupation, which clearly violated international law, and several years after graduating from university and starting to live in Japan, I became involved in the East Timor solidarity movement. During the referendum held by the United Nations in 1999 on whether East Timor should regain sovereignty or merge with Indonesia, I went to the area as a UN-certified observer. Through these activities, I became interested in international law, and decided to study at Aoyama Gakuin University Graduate School of Law. I chose this university's graduate school because I wanted to conduct research under Professor Hae Bong SHIN, currently the Dean of Faculty of Law, who specializes in international human rights law and international law.

After entering graduate school, I gradually became interested in the relationship between gender and law. I had originally become involved in the East Timor issue, and had heard from local women about the actual situation of sexual violence under armed conflict and occupation. After entering graduate school, I began to study the role of international law in this issue in detail. During my master's degree, I considered post-conflict justice using East Timor as an example, and researched the Special Panel on Serious Crimes in East Timor. In a referendum in 1999, the East Timorese chose independence, and the Indonesian military eventually withdrew, but the United Nations was in charge of transitional administration in East Timor until 2002. This special panel, established by the United Nations Transitional Administration in East Timor, tried abuses committed in the final year of Indonesia's occupation of East Timor, and when I learned that sexual crimes were included in the trial, I became very interested in that aspect. I wanted to investigate in detail to what extent international criminal law at the time could judge gender violence, and whether the international criminal law system was sufficient from a gender perspective, so I pursued my research in the doctoral program at the Graduate School of Law at this university.

As mentioned at the beginning, the Rome Statute is quite progressive with regard to gender-based crimes, but initially there was criticism that the Prosecutor's Office was not making full use of it. The first trial at the ICC was the Lubanga case, which began in 2006. It was a trial of the leaders of armed groups involved in the conflict in the Ituri region of the Democratic Republic of the Congo, but the crimes asserted by the Prosecutor's Office at that time were extremely limited. Even though there was evidence that child soldiers had been recruited and incorporated into armed groups, some of whom were girls, and that they had been subjected to sexual violence, this was not treated as a charge. Criticism arose as to why the ICC was not using appropriate provisions on gender, even though it had them.

However, since then, prosecutors have been more proactive in investigating and prosecuting gender crimes, and we can see a trend of more proactively exploring the possibility of gender regulation, especially in recent cases. Let's look at two cases. The first is the case of Ongwen, in which a conviction was made in February 2021. When an arrest warrant was issued for Ongwen, a leader of a Ugandan rebel group, in 2005, gender crimes were not included in the charges. However, between 2015, when Ongwen was handed over to the ICC, and the following year, when the pre-trial chamber began its confirmation of the crimes (a procedure to confirm whether there is sufficient evidence to proceed to trial), the ICC Prosecutor's Office conducted further investigations and added charges for various forms of gender crimes. These included "forced pregnancy" as a "crime against humanity" and as a "war crime," and in February 2021, he was the first to be convicted of this crime. Despite reports of forced pregnancy (for example, during the Bosnian conflict), international criminal courts prior to the establishment of the ICC, such as the International Criminal Tribunal for the Former Yugoslavia, did not include it in their statutes, and individual It could not be tried as a separate crime. It was the first time that the ICC was able to try it, but the crime was included in the Rome Statute because, as mentioned at the beginning, women's activists lobbied based on their specialized knowledge. The definition of the criminal act of forced pregnancy in the Rome Statute is "the unlawful confinement of a woman who has been forcibly made pregnant," but it should be commended that in February 2021, the Trial Chamber interpreted "confinement" in this case taking into account the reality of the situation in which the victim finds herself. In other words, even if the situation is not one in which the victim is locked in a room, if the victim is placed in a situation in which it is practically difficult to escape (placed under heavy security and threatened with death if she tries to escape), it is interpreted as fully meeting the definition of "confinement."

Another noteworthy case is the Al-Hassan case, currently on trial at the ICC. This case is the first case in which the Prosecutor has indicted and tried a case for "gender-based persecution" as a crime against humanity. "Persecution" is a crime against humanity that severely deprives people of their fundamental human rights because they belong to a particular group, as part of a widespread or systematic attack against the civilian population. The International Criminal Court established before the ICC had the authority to try persecution against "political," "racial," and "religious" groups, but the ICC is the first to try persecution based on "gender." The significance of trying this crime is shown in the Al-Hassan case. This case is a trial for the criminal responsibility of Al-Hassan, a member of an armed group and the de facto head of the religious police, for the oppression and abuse of local residents when an Islamic extremist group occupied Timbuktu and the surrounding areas in the Republic of Mali. According to the prosecutors' argument, Islamic extremist groups applied strict Islamic law and controlled the public and private lives of the residents by strictly restricting worship, education, entertainment, and clothing. This situation of forcing strict Islamic law and severely punishing those who do not comply constitutes "religious persecution" that targets all residents, but it also included "gender-based persecution" that targeted only women. For example, the rules on women's clothing were particularly strict, requiring them to wear a burqa that completely covers their body, and if they did not comply, they could be beaten, imprisoned, and even sexually assaulted. In contrast, there were rules on the length of men's trousers, but if Islamic extremist groups caught men with trousers that were too long, they would simply cut them on the spot. It is very important that the ICC can judge such situations as "gender-based persecution" in that it captures the essence of the damage and shows that the unique damage suffered by women is as serious as religious persecution and should be punished as an international crime.

As mentioned above, the Al-Hasan case is still in the trial stage and the verdict has not yet been reached, but one of the important points to note when the verdict is handed down is how the court will interpret "gender" when examining "gender-based persecution". It is generally accepted that the term "gender" refers to socially constructed ideas and expectations about men and women, such as what behaviors, roles, and clothing are appropriate for men and women, and which gender is "normal" to have romantic and sexual feelings toward. However, when the content of the Rome Statute was being negotiated, it was difficult to agree on the definition of "gender", so an ambiguous definition was ultimately adopted, leaving the interpretation to the ICC judges. The adopted definition states that "For the purposes of this provision, 'gender' means both sexes in the context of society, that is, male and female. The term 'sex' shall not have any other meaning." However, it is ultimately up to the judge to decide whether this simply refers to biological sex differences, or to socially constructed ideas and expectations about men and women. If the latter interpretation is adopted, it will be possible to judge the situation in Timbuktu, where Islamic extremist groups severely deprived women of their rights based on their idea of "how women should be," as "gender-based persecution."

The way in which the definition of "gender" is interpreted in the Al-Hasan case also has an impact on whether the ICC can try situations in which sexual minorities are targeted because of their attributes in armed conflicts (for example, the execution of gay men by the Islamic State) as "gender-based persecution." Of course, such violence can be tried as "murder," but that alone does not capture the essence of the matter, so it would be preferable to try it as a gender-based crime.

International criminal law and international human rights treaties are ultimately concluded by countries, but civil society groups and grassroots movements play a very important role in determining what the content of the treaties will be and to what extent their potential will be realized after they are concluded. In undergraduate and graduate classes, we treat international law academically, but at the same time, we also place emphasis on the facts and "how to think independently." If we think and act independently, we can change the situation and change the world. We want students to have this awareness. For example, each major human rights treaty has a committee that monitors whether the contracting parties are fulfilling their treaty obligations. One way to monitor is the "individual complaint system." This is a process in which individuals who believe their rights under the treaty have been violated can directly complain to the committee, in countries that have recognized this system (unfortunately, Japan has not yet recognized it). In the past, consensual sexual acts between men were a crime in the state of Tasmania in Australia, but a gay man reported this to the committee, believing that this was an interference with his privacy and a violation of the ICCPR, and the committee accepted his claim. This was one of the main reasons that the law in Tasmania was changed. Learning these facts, it makes you think that if you don't give up right from the beginning and insist on your rights, you can improve the world. Of course, it is important to deal with law academically in university classes, but in addition to that, I want to provide opportunities for students to realize the possibility of improving the world by thinking and acting independently.

One of the reasons why there are progressive elements in international human rights law and international criminal law is that many civil society groups and activists have been working hard to move things in a positive direction. This can be said to be a treasure for our humanity. That is why we should use it to move society in a better direction. By utilizing the law, we can improve society. I think that knowing this is an important part of learning at university.

As for my future research topic, I would like to continue to closely monitor the activities of the ICC while further studying the potential of international criminal law to protect the human rights of sexual minorities. As shown by the fact that some countries were strongly opposed to recognizing the human rights of gays and lesbians during negotiations on the content of the Rome Statute, particularly the definition of "gender," protecting the human rights of sexual minorities can be more difficult than protecting the human rights of women, but I hope that by advancing my research I can contribute to improving the situation, even if only a little. If we don't give up and think and act independently, we can change the world. That's what I believe. (Published in April 2021)