The last two decades of international law have clarified that women's rights and LGBTIQ rights are human rights, making the gender definition contained in the Rome Statute opaque.
Strong convention language that complies with existing human rights law would be an invaluable tool for confronting impunity and enhancing state efforts to prevent and punish gender-based crimes. However, a text that does not understand gender could sideline women and other marginalized victims and result in even greater impunity for gender-based crimes amounting to crimes against humanity.
The draft crimes against humanity (CAH) treaty was completed by the International Law Commission and has been sent to the UN General Assembly’s 6th Committee on legal matters. The 6th Committee held a substantive debate on the draft treaty in 2019 while the 2020 debate was condensed due to the COVID-19 pandemic, so the 6th Committee decided to continue consideration in 2021.
The fourth and final report of the ILC Rapporteur for the CAH draft convention was released in April 2019 and recommended removing the outdated definition of gender that was copied from the 1998 Rome Statute. The Special Rapporteur referred to comments from governments and UN experts that advocated for updated gender language and which were mobilized by MADRE and its partners. Based on this recommendation, the ILC drafting Committee ultimately removed the definition of gender in its final report.
In 2018, MADRE circulated a sign-on letter asking other organizations to join our call on the ILC to update the definition of gender in the draft treaty. The letter was translated into five languages (English, Spanish, French, Arabic and Chinese) and received nearly 600 organizational and academic sign-ons representing over 100 countries. HRGJ Clinic of CUNY Law School also drafted a legal submission calling for the definition of gender in the treaty to either be removed or revised and also calling for expanding the categories under persecution. Eighteen governments also made submissions to the ILC calling for the deletion or revision of the definition of gender. Additionally, several UN Special Rapporteurs and other experts joined to draft two submissions to the ILC. The first submission calls on the ILC to update the definition of gender; the second submission calls on the ILC to expand the grounds for persecution in the draft treaty to include: disability, Indigenous status, age, social origin, language, and migrant and refugee status.
In addition to MADRE's open letter, there were at least nine other civil society submissions commenting on gender-related provisions in the draft treaty, including comments made by twelve trans groups and networks around the word, a submission by Human Rights Watch, a letter signed by about 70 human rights organizations in Africa, and joint comments by intersex groups. For example, civil society submissions called on the ILC to update treaty language concerning enslavement, reproductive rights, torture, intersex rights, and enforced disappearances.
In November 2017, advocates filed a petition—the first of its kind—to the International Criminal Court. Filed jointly by CUNY Law School, MADRE and the Organization of Women’s Freedom in Iraq (OWFI), with help from the law firm Debevoise & Plimpton and OutRight Action International, the petition argues that the international community should prosecute ISIS fighters for crimes committed on the basis of gender, including discrimination based on sexual orientation and gender identity.
This is the first time the world has seen this kind of robust documentation of crimes against women and LGBTIQ persons for transgressing gender norms during an armed conflict. The draft CAH treaty offers a new opportunity to hold perpetrators of gender-based crimes accountable. To learn more about the ICC petition, watch the event held at CUNY Law School just before the petition was submitted: Prosecuting ISIS Crimes against Women and LGBTIQ Persons.
It is critical that civil society weighs in on the development of the new CAH treaty. You can help by sharing this toolkit and encouraging others to make their voices heard.
For more detailed information on how gender includes women and LGBTIQ rights under the Rome Statute, click here.