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Gendering the Crimes Against Humanity Treaty

A Timeline of Civil Society Intervention

The International Law Commission (ILC) completed its first reading of the draft articles for a new treaty on crimes against humanity (CAH). While the current treaty draft embraces strong language from the Rome Statute, including gender as a protected class from persecution, it also adopts an outdated and opaque definition of gender. A text that does not properly account for current understanding of gender could sideline women, lesbian, gay, bisexual, transgender, intersex, and queer (LGBTIQ) persons and other marginalized and vulnerable victims. At worst, it could result in even greater impunity for gender-based crimes amounting to crimes against humanity.

For this reason, MADRE, the Human Rights and Gender Justice (HRGJ) Clinic of CUNY Law School, Outright Action International, and the Center for Socio-Legal Research, at the Universidad de Los Andes School of Law of Bogotá, Colombia have come together to call for the removal or revision of the definition of gender and other gender provisions and ensure better protection of women and LGBTIQ persons. Below is the timeline of events this coalition has organized in an effort to modernize the treaty text. To learn more about our position on the CAH treaty, click here.

March 2018 Experts Meeting, New York

International experts and scholars on women’s rights, LGBTIQ rights and international criminal law came together to discuss the new crimes against humanity convention. Participants examined the legal theories and current debates regarding criminalization of persecution on the grounds of gender discrimination contained within the new crimes against humanity draft treaty provisions, and they developed recommendations on effective strategies for infusing a gender analysis during the International Law Commission’s final stages of the treaty drafting process. See the Outcomes Report for a full summary. The meeting was held at CUNY Law School and supported by UNWOMEN.

May 2018 International Law Commission Reception, New York

Members of the International Law Commission (ILC) attended a reception to discuss the draft crimes against humanity treaty and proposed recommendations regarding gender-related provisions in the draft treaty. The current Chairman of the ILC, Eduardo Valencia-Ospina, provided opening remarks. Sean Murphy, the Special Rapporteur on crimes against humanity for the ILC, Patricia Viseur-Sellers, Special Advisor on Gender to the Prosecutor of the International Criminal Court, Lisa Davis, Associate Professor of Law at CUNY Law School and Senior Legal Advisor to MADRE, and Valerie Oosterveld, an international criminal law professor, spoke at the event.

Over the last two decades, international human rights law and jurisprudence have adopted language that accounts for the social construction of gender. Since its formation nearly twenty years ago, its understanding of gender-based persecution has never been tested, largely due to its opaque definition in the Rome Statute. What we do now will affect minority rights for generations to come.

June 2018 Experts Meeting, London

International criminal law and women’s rights experts gathered to discuss the gender provisions of the draft crimes against humanity treaty. Experts discussed recommendations proposed at the March meeting as well as the need to mobilize broader civil society support for the initiative. The meeting was held at the London School of Economics.

June 2018 UN LGBTI Core Group Retreat Session, New York

The LGBTI Core Group, an informal cross-group of the UN member states who have expressed their commitment to LGBTIQ rights and are working for LGBTIQ-related interests at the UN-level in New York convened for their second annual retreat. The Core Group discussed the work on the treaty language thus far and emphasized the need for coordination of the UN General Assembly 6th Committee Coordination once the draft passes from the ILC to the Committee. The group is co-chaired by Argentina and the Netherlands, and includes Albania, Australia, Brazil, Canada, Chile, Colombia, Costa Rica, Croatia, Ecuador, El Salvador, France, Germany, Israel, Italy, Japan, Montenegro, Mexico, New Zealand, Norway, Spain, the UK, the US, Uruguay, and the EU, as well as the UN Office of the High Commissioner for Human Rights (OHCHR), and NGO representation from OutRight Action International and Human Rights Watch.

July 2018 LGBTIQ Activist Workshop Session, The Hague

Participants gathered to attend Leiden University Law School’s summer session on Sexual Orientation and Gender Identity in International Law: Human Rights and Beyond and engaged in a workshop session on the draft crimes against humanity treaty. Lisa Davis, and Jessica Stern, executive director of OutRight, engaged participants in an analysis of the threats, opportunities, strengths and weaknesses of the draft treaty’s gender provisions and provided feedback on recommendations discussed at previous experts’ workshops.

September 2018 Briefing with UN Member State Representatives from the UN General Assembly 6th Committee, New York

Over twenty-member state representatives working in the UN General Assembly’s 6th Committee gathered to discuss the proposed gender-related provisions under the draft crimes against humanity treaty. Representatives also discussed how states may make their own commentaries on these provisions to the ILC. Rene Urueña, Associate Professor and Director of Research at the Universidad Los Andes School of Law, Patricia Viseur-Sellers, Special Advisor on Gender to the Prosecutor of the International Criminal Court, Lisa Davis, Associate Professor of Law at CUNY Law School and Senior Legal Advisor to MADRE, and Jessica Stern, Executive Director of OutRight spoke at the event.

October 2018 Reception and Briefing with Women and LGBTIQ Rights Activists, Bogotá

MADRE co-hosted a briefing with LGBTIQ and women’s rights activists, along with international human rights and criminal law experts in Bogotá, Colombia to discuss the gender-related provisions under the proposed crimes against humanity treaty. The meeting was held at the Center for Socio-Legal Research, at the Universidad de Los Andes School of Law.

October 2018 LGBTIQ Rights Experts Meeting, New York

MADRE co-hosted an experts meeting bringing together 29 LGBTIQ rights experts and allies to discuss gender and LGBTIQ rights in the proposed crimes against humanity treaty. Participants discussed the gender-related provisions in the draft treaty and how they can be strengthened to support the LGBTIQ community. Participants also discussed current challenges the LGBTIQ community faces regarding access to justice and reparations for persecution based on sexual orientation, gender identity and sex characteristics, and the implications of the gender provisions in the treaty. See the Outcomes Report for a full summary. The meeting was held at CUNY Law School. 

November 2018 Meeting with Women’s Rights Activists in Erbil, Iraq

MADRE co-hosted a Strategies for Change Workshop. Participants discussed strategies for calling attention to the lack of accountability and redress for gender-based crimes committed by ISIS and the potential impact of the new crimes against humanity treaty. 

December 1, 2018 Final Submissions to the International Law Commission (ILC), New York

MADRE, OutRight Action International, The Human Rights and Gender Justice (HRGJ) Clinic of CUNY School of Law, and the Center for Socio-Legal Research at the Universidad de Los Andes 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 Commission to update the definition of gender; The second submission calls on the Commission 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.

What’s Next

The fourth and final report of the ILC Rapporteur for crimes against humanity draft convention is slated to come out sometime in Spring 2019. Check back soon or sign up here for more information.