In 2017, the International Law Commission (ILC) completed its first reading of the draft articles for a new treaty on crimes against humanity (CAH). While the first version of the treaty draft embraced strong language from the Rome Statute, including gender as a protected class from persecution, it also included an outdated and opaque definition of gender.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 came 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.
In May 2019, the ILC completed its second reading of the draft treaty and removed the definition of gender entirely - a direct result of MADRE and our partners’ mobilization to update the treaty and fight against impunity for gender-based crimes. The treaty has now made its way to the UN General Assembly's 6th Committee that reviews legal matters, where governments are debating the text and its implementation.
Below is the timeline of events this coalition organized in an effort to modernize the treaty text. To learn more about our position on the CAH treaty, click here. To read the current draft of the treaty, click here.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 named 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.
Also, the International Bar Association's War Crimes Committee recommended that if definitions within the draft were to be discussed and changed, it would prioritize changing the gender definition or removing it entirely due to its narrow and problematic nature.
In March 2019, Lisa Davis, MADRE's senior legal advisor, and Jessica Stern, executive director of OutRight Action International, held a meeting at the ILGA World Conference in Wellington, New Zealand to update LGBTIQ activists about the CAH campaign. The session provided background on the treaty and how it impacts LGBTIQ communities, as well as updates on civil society participation and next steps.
In May 2019, the International Law Commission (ILC) officially adopted a new version of the crimes against humanity treaty and removed the outdated definition of gender - an historic moment for gender justice. Due to the efforts of MADRE and our partners, the ILC has affirmed that the rights of women, LGBTIQ persons, and other marginalized groups are protected in international criminal law, which will have ripple effects across national laws and future legal mechanisms for years to come. Building on this momentum, we now turn our focus to the UN General Assembly's Sixth Committee on legal issues, where governments will debate the text in fall 2019.
What’s Next
The ILC has released the latest version of the draft treaty and sent the text to the UN General Assembly's 6th Committee on legal matters for discussion and review. The 6th Committee held a substantive debate on the draft treaty in 2019, followed by additional discussions in 2020 and 2021 that were limited by the pandemic as well as pushback from States attempting to stall movement. In November 2022, the 6th Committee adopted a resolution to move forward with the drafting process – the most significant step forward since the Committee first debated. The result of intense negotiations, the resolution creates a space and timeline for substantive discussion of the treaty, with two interactive sessions planned for April 2023 and April 2024 leading up to a decision on next steps in fall 2024.
