Last summer, the International Law Commission, a UN body dedicated to developing international legal standards, completed its first reading of the draft articles for a new convention on crimes against humanity, which members of the General Assembly’s Sixth Committee (on legal questions) reviewed in the fall. While the current treaty draft embraces strong language from the Rome Statute, including gender as a protected class from persecution, it also adopts its unusual footnote defining gender.
Two decades of international law have since clarified the broad definition of gender under customary international law, and the “footnote” to the term gender contained in the Rome Statute has become redundant and outdated. Strong convention language that complies with existing human rights treaties and customary international law norms 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 recognize gender rights could sideline women and other marginalized victims and result in even greater impunity for gender crimes amounting to crimes against humanity. Also at risk is the further concretizing of women’s rights as secondary rights, and the exclusion of rights for Lesbian, Gay, Bisexual, Transgender, Intersex, and Queer (LGBTIQ) persons altogether.
MADRE has pulled together a coordinated advocacy strategy and movement-building initiative, in collaboration with the Human Rights and Gender Justice (HRGJ) Clinic of CUNY Law School, the Organization for Women’s Freedom in Iraq (OWFI), Outright Action International, the Women’s International League for Peace and Freedom (WILPF) and the NGO Working Group on Women, Peace and Security, and others. Together, we seek to seize this pivotal moment in history and broaden the discourse on gender and its understanding of discrimination, including where gender intersects with sexual orientation and gender identity.
Last year with the support of UN WOMEN, this same coalition convened an experts’ meeting on gender rights under the Rome Statute and more broadly international criminal law. Participants examined the legal theories and current debates regarding persecution on the grounds of gender discrimination. Moreover, participants discussed provisions and legal precedents which support prosecution of crimes against humanity committed against women and other marginalized persons based on their gender non-conforming behavior.
Building on the meeting held last year, we held a second experts’ convening on March 12, 2018 at CUNY Law School in New York. This convening brought together over 30 international and regional experts and scholars in the fields of international criminal law, women, and LGBTI rights. 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. Moreover, participants built on their legal analysis from the first experts’ meeting to develop recommendations on effective strategies for infusing a gender analysis during these final stages of the treaty drafting process and for engaging with international human rights and transitional justice mechanisms to support the protection of gender rights in conflict situations.
Where We Stand
In the mid-1990’s, substituting the word “gender” for “sex” was one of the most important safeguards for gender justice to happen at the Rome Conference, which created the Rome Statute and ultimately the International Criminal Court (ICC). A fundamental objective by the opposition was to exclude sexual orientation and gender identity as categories protected against discrimination. While these bigoted views wielded a heavy hand in the negotiations, they were not representative of the overwhelming majority of delegates who favored the more inclusive term of gender and embraced the recognition of its social construction.
Article 7(3) explains that, “it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society.” At the formation of the Rome Statute, the phrase “in the context of society” was decidedly understood to codify the societal definition of gender, thus its social construction. As discussed during the negotiations, the accepted definition of gender recognizes discrimination based on whether or not a person behaves according to a prescribed gender role, “whether it be in the realm of housekeeping, work, or sexuality.” This came in part from the Report of the UN Secretary General to the Beijing Platform for Action, which was distributed to delegates discussing the definition of gender. Over the last two decades, international human rights law and jurisprudence has born this out, as experts and jurists have adopted language that accounts for the social construction of gender identity. Since its formation nearly twenty years ago, the understanding of gender under Article 7(3) has not been clarified; there has likely never been a call for the ICC to investigate atrocities committed on the basis of gender at the margins.
Similar to the call to end impunity for atrocities committed on the basis of gender, the struggle to secure the recognition of rape as a form of torture initially faced stiff resistance. Sexual violence crimes were not taken as seriously as other crimes in the early years of international criminal tribunals. However, activists were successful in rallying drafters to abandon the “outrages to personal dignity” language, and to broaden the category for sexual violence to not only include rape but also sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and other undefined forms of sexual violence.
A key component to their success was combining advocacy with legal strategy. Patricia Viseur-Sellers, international criminal lawyer and Special Advisor to the Office of the Prosecutor of the International Criminal Court, has noted that “the participation of women’s rights activists on issues of international criminal and humanitarian law (as opposed to human rights law) [has been a] phenomenal step in ‘genderizing’ the structural content of international law as it pertains to the ‘masculine’ arenas of war, genocide and crimes against humanity.” Gender strategies in the tribunals grew from the notion that “women’s rights are human rights.” Today, advocates are calling for a “gender equal world.”