Progress, Resistance, and Silence on Gender Justice in the Draft … – Just Security

In April, States took a significant step toward negotiating a specific treaty on crimes against humanity (CAH) after years of delay and procedural wrangling. If adopted, the proposed draft articles could close gaps in the architecture of international criminal and human rights law and provide a critical opportunity to advance gender justice or regress to outdated ideas about gender. The unprecedented week-long discussion at the United Nations offered a glimpse at the opportunities a treaty might hold to advance gender justice.

Across the five day resumed session of the U.N. General Assemblys legal committee the theme of gender arose repeatedly, with many States indicating support for progressive provisions on gender-related elements of the draft articles. Others indicated a desire to revert to obsolete gender provisions, setting up potential battles over key issues. Contentious questions included whether to define gender within the treaty (or leave it undefined, like other treaty terms including race and religion); definitions of sexual and reproductive violations; and slavery-related crimes. States also missed some opportunities to engage on pivotal gender issues, but diplomats and civil society leaders will have additional openings to raise these issues over the coming months.

Ultimately, the degree to which any eventual treaty is gender competent will have enormous practical impacts for the victims of these grave crimes. Both the commission of atrocity crimes and the experiences of the victims are fundamentally shaped by gender roles from the use of sexual and gender norms to terrorize victims of torture, to the life-and-death stakes of gendered differences in how women, men, boys, and girls are enslaved, to the specific reparation and rehabilitation needs of survivors such as children born of war. Any treaty that aims to prevent and punish these crimes must grapple with their gendered characteristics and impacts.

Where States Stand on Applying a Gender Lens to the Draft Articles

More than a dozen States voiced strong support across a variety of gender-related issues throughout the week. Other States indicated support for some gender priorities while hesitating to back the treaty overall, or noting disagreement about how best to achieve gender priorities. A third group of States objected explicitly to certain gender priorities. The apparent positions of States that expressed views on gender issues during the session are summarized in the following chart with detailed discussion of the debates following the chart.

Defining Gender in the Draft Articles

The inclusion or exclusion of an explicit definition of gender was the most widely commented-upon gender issue in the resumed session. The International Law Commission (ILC), which drafted the current proposed articles, hewed closely to the Rome Statute in crafting most definitions within the draft articles, but opted to exclude the Statutes definition of the term gender after numerous States and civil society organizations raised concerns about its clarity and inclusiveness. The Rome Statute definition reads: For the purpose of this Statute, it is understood that the term gender refers to the two sexes, male and female, within the context of society. The term gender does not indicate any meaning different from the above. Critics of the definition noted during the ILC drafting process that developments in international law since the Statutes drafting have recognized the social construction of gender and the potential harms of reifying a binary definition of the concept. Ultimately, the ILC explained in its commentary on the draft articles:

[The] approach of viewing gender as a socially constructed (rather than biological) concept has been taken by various other international authorities and in the jurisprudence of international criminal courts and tribunals.

Accordingly, the Commission decided not to include the definition of gender found in article 7, paragraph 3, of the 1998 Rome Statute, thereby allowing the term to be applied for the purposes of the present draft articles based on an evolving understanding as to its meaning. While the term is therefore undefined in the present draft articles, the same is true as well for various other terms used in draft article 2, paragraph 1 (h), such as political, racial, national, ethnic, cultural, or religious.

Mexico, Canada, Brazil, the U.K., Portugal, Belgium, Australia, Romania, the United States, Sweden, the Netherlands, New Zealand, Malta, and the European Union each noted their agreement with the ILCs decision to omit the definition.

At least seven States noted in some form that the draft articles thus recognize ongoing evolution of understandings of gender and, specifically, refrain from reifying the regressive and confusing Rome Statute definition. Romania echoed the ILC by observing that the draft articles likewise leave other terms, including race, religion, and other grounds of persecution, undefined. The U.K. noted positively that deleting the definition may help protect gender non-conforming individuals, who might otherwise be excluded from legal protection against gender-based persecution.

A Mixed Bag on Other Gender Justice Priorities

Several States including some whose delegations disagreed with the ILCs decision to omit the gender definition voiced support for retaining or strengthening other provisions relevant to advancing gender justice. For example, Sierra Leone stated that their delegation was not persuaded by the explanation in the Commentary for the deletion of the definition, but indicated strong, specific, and detailed support for strengthening provisions on slavery to include explicit reference to the slave trade and forced marriage, neither of which is explicitly listed in the current draft. The U.K. and Canada echoed Sierra Leones call for including forced marriage as a crime.

Likewise, El Salvador stated that it does not support the exclusion of the gender definition, but suggested that instead of deletion, the definition should be broadened in line with the progressive nature of human rights law without specifying exactly how it might be broadened to ensure the protection of victims of sexual violence. El Salvador further highlighted the importance of the international criminalization of sexual violence under the category of CAH or in some cases under genocide, and emphasized the need to ensure that evidence of past or subsequent sexual activity of victims of sexual violence could not be admitted as evidence in CAH proceedings.

Other States positions similarly suggested possible openness to progressive changes while indicating divisions on the best way to achieve gender justice goals. For example, Cuba expressed ambivalence toward the creation of the treaty overall, but nevertheless called for an overhaul of the definition of forced pregnancy in any possible convention to take account of international practice in the areas of sexual and reproductive health. Cubas delegation indicated support for revisions to broaden the definition of the crime and remove the aberrant reference to domestic law that the ILC retained from the Rome Statute definition. The U.K. and Canada each of which strongly support the advancement of the treaty echoed Cubas call for revisions to the forced pregnancy definition, revealing a potential unexpected partnership on the issue. The U.K. highlighted lessons learned from the application of the Rome Statute on forced pregnancy and said, given the repugnance of forcible interference with reproductive rights to the values international criminal law protects, the U.K. would be in favour of exploring how the definition of forced pregnancy found in draft Article 2(f) could be strengthened. Other equity and gender justice issues were raised by some States, such as issues of inclusivity of the draft articles of LGBTQI+ individuals (raised by Belgium and the Philippines, and referenced by others).

Finally, a handful of seemingly-gender neutral issues hold potential to have gendered impacts, from the way that a treaty is implemented and monitored to the treatment of victims. Several States alluded to these issues during the session. For example, some explored the possibility of creating a treaty body monitoring mechanism that would oblige them to undergo regular public review of their compliance with the treaty. Sierra Leone, the U.K., Slovakia, Canada, and the European Union indicated openness to or support for such a body though only Sierra Leone fully endorsed the idea. Sierra Leone, Brazil, Romania, Belgium, and the U.K. highlighted the need to center victims rights to justice and effective restitution. Sierra Leone and Palestine raised issues of race, colonialism, and reparations, while Australia noted the need to conduct a cross-cutting gender analysis of the draft articles and to integrate indigenous perspectives. These latter interventions raise the prospect of intersectional analysis of treaty provisions. However, most States stayed silent on interlocking issues of race and gender.

Opposition to Progress on Gender Justice

It was not all good news on gender in States comments. Five States explicitly opposed the deletion of the gender definition, and some issued particularly regressive statements to justify their disapproval. For example, Qatar stressed the importance of maintaining terminological consistency across international instruments, including with the gender definition from the Rome Statute, and specifically asserted that the term gender means male or female; there is no other interpretation, no other concept covered by this term. Likewise, Poland while supporting stronger victim-centered approaches and emphasizing the needs of the most vulnerable including children called for terminological consistency through transposing the gender definition from the Rome Statute to the draft articles on CAH. Nigeria also raised objections to the exclusion of the gender definition, and Cameroon expressed skepticism about the deletion.

Gambia a strong advocate for the advancement of the treaty overall also issued a statement in opposition to the deletion of the gender definition, indicating that they were unconvinced by the ILCs decision to exclude a definition. The delegate stated:

In our view, male and female definition of gender is not just a social construct but also biological, which goes to the root of creation of man and woman. We do not subscribe to the notion that the definition provided by the Rome Statute in 1998 is decades old and a lot has changed since then and therefore, the world is ready to evolve and accept new meaning.

Gambia reiterated their call to maintain the Rome Statutes gender definition, which the delegation characterized as agreed language [that] maintains consistency between international legal frameworks.

This view indicates that civil society actors and supportive States may need to continue efforts begun during the ILCs drafting process to articulate to reluctant States the importance of achieving a gender just treaty. Overall, the week revealed divisions but also interest and willingness among States to engage on issues of gender justice.

What Wasnt Said: Opportunities to Go Further on Gender Issues

The promising recognition of cross-cutting gender issues throughout the week laid the foundation for further engagement by States in the coming months. States can submit written comments on the draft articles by the end of this year; these comments will shape the agenda of another resumed session in April 2024. States should seize the chance to advocate for gender justice in these written comments and in their verbal interventions at subsequent Sixth Committee meetings. In particular, States could consider raising the following issues in their subsequent interventions.

Persecution on the Basis of Sexual Orientation and Gender Identity

First, much more engagement is needed on the issue of persecution based on sexual orientation and gender identity. There is a rising tide of this persecution around the world, from restrictions on healthcare access for trans people to criminal prosecution of LGBTQI+ individuals, and the definition of persecution in the current draft articles does not sufficiently address this oppression.

At present, the draft articles define persecution as the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity; but limit the application of the provision to acts of persecution in connection with any act referred to in this paragraph in other words, requiring a nexus with other crimes against humanity such as torture, murder, or apartheid. The nexus requirement thus significantly curtails the forms of persecution that are prohibited under the treaty, omitting systematic oppression that does not entail other independent atrocity crimes. This omission may particularly impact LGBTQI+ populations, who are often targeted throughout the world with creative forms of persecution, such as restrictions on free expression and unequal access to public accommodations.

Notably, the Rome Statutes nexus requirement is absent in other instruments of international law widely regarded as reflecting custom, such as the statutes of the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the Former Yugoslavia (ICTY). The limited definition of persecution was included in the Rome Statute in part to circumscribe the ICCs jurisdiction. But as with other issues (such as enforced disappearance) that were narrowed in the Rome Statute out of deference to State sovereignty concerns, this jurisdictional caution is not warranted in the persecution definition under the prospective CAH treaty, which concerns national criminalization, extradition, and mutual legal assistance, rather than the establishment of an independent judicial body. Colombia, Canada, and a few other States flagged the importance of expanding the persecution definition (though without tying it explicitly to gender issues). Moving forward, more States should press for the removal of this limitation from the persecution definition in the CAH draft articles.

Beyond these jurisdictional questions, there are additional opportunities for the prospective treaty to protect those with diverse sexual orientations and gender identities. For example, the current draft defines the crime of forced pregnancy as being committed against women forcibly made pregnant, potentially excluding trans, nonbinary, or young girls who can become pregnant from its protections. Yet only the U.K. and Belgium explicitly referred to the need to include trans people in the treatys definitions. A gender competent treaty must be fully inclusive of all gender identities, and States should consider addressing these issues in their subsequent interventions.

Strategic Silence?

The relative silence on some of these issues may have been partially a result of the previous, constructive State engagement that led the ILC to remove the gender definition from the draft in the first place. After their robust statements in support of LGBTQI+ rights brought about the change, States may have simply been surprised to see the issue arise again.

The intense sensitivity of issues of gender identity and the risk of creating regressive treaty terms or references within the travaux prparatoires may have also played a role. Raising contentious questions in the resumed session might have derailed the overall push to bring the draft articles out of the Sixth Committee and into a full negotiation at the General Assembly or in a dedicated conference. But the calls for reopening the gender definition illustrate that supportive States and civil society organizations must continue to press for protections and inclusion of all sexual orientations and gender identities in any future treaty.

Gender Apartheid

There is also room for States to engage with the concept of gender apartheid, which has garnered recent public attention. Several States highlighted the importance of recognizing the crime of apartheid (including Ethiopia and Palestine), while Cameroon indicated possible openness to expanding the scope of the definition, despite an overall skepticism to the treaty. However, Cameroons suggested expansion focused on xenophobia, not gender. No State has yet explicitly advocated for adding gender-based oppression to the current draft definition of apartheid: inhumane acts committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime (emphasis added). If the draft articles advance to full-scale negotiations, advocates should consider encouraging States to add gender to this definition.

Gender Analysis of Atrocity Crimes

Finally, the coming months offer expanded opportunities for States to dig into the subtle interactions between gender and contexts of conflict or atrocity discussions that were largely absent from the technical legal debates in April. Recent thoughtful scholarship has explored the role of gender stereotypes in charging and prosecuting atrocity crimes, the interplay of toxic masculinity with violence and extremism, the weaponization of gender norms to terrorize civilians, and the deployment of gendered notions of domination and duty to justify aggression and atrocities. Feminist scholars have illustrated how to apply a nuanced gender lens to international criminal prosecutions for a range of crimes and potential defenses, grappling with the true complexity of gender across contexts. These discussions might seem too theoretical to appear in technical debates about the terms of the draft articles, but as the treaty text moves forward, it is essential to intertwine these considerations into the text, drafting history, and commentaries of the convention.

Why Does Gender Matter in a CAH Treaty?

And make no mistake: incorporating gender is essential.

Unless accountability efforts grapple with the ways that gender is entwined into the perpetration and aftermath of atrocities, these crimes will continue to be committed and justice will be incomplete. The recent ICC case of Dominic Ongwen illustrates the relevance and practical impact of gender in the perpetration of atrocities, and in any justice and accountability efforts that follow.

Ongwen was abducted as a child in Northern Uganda and trained as a child soldier along with other young boys; female abductees were forced to conduct housework until they were deemed sexually mature enough to be converted to wives. Ongwen climbed the ranks and took several wives for himself, committing the crimes of rape, sexual slavery, enslavement, forced pregnancy, torture, and forced marriage, among others. He was eventually captured, tried at the ICC, found guilty, and his charges were confirmed on appeal last December.

Meanwhile, some women and girls who were abducted have returned to their communities, but report facing stigma based on gendered notions of sexual purity, with patterns of domestic instability as subsequent partners leave them with more children while shaming them for their past victimization. Some are forced to engage in sex work to survive. Children born of forced marriage or while their mothers were in captivity struggle to obtain documentation, leading to their exclusion from formal education or employment opportunities. As this generation matures, gendered patterns of vulnerability persist. Unregistered and underemployed young men, for example, are vulnerable to recruitment into groups that offer them a sense of belonging where they can vindicate ideas of masculinity shaped by patriarchy. And the pattern repeats.

While Ongwens ICC conviction was groundbreaking in its engagement with gender issues, there is still a long way to go. Without robust, nuanced understandings of gender woven throughout the response to mass atrocities, States cannot fulfill their obligations to prevent, punish, and provide redress in these situations. Atrocities do not occur in a vacuum their seeds are planted in inequality, hopelessness, and disempowerment. Each of these experiences is inflected by social constructions of gender. Prevention of these conditions requires understanding the dynamics that shape them; restitution to victims requires understanding the way harms are inflicted and experienced in gender-specific ways.

The draft articles will next be discussed by the Sixth Committee at their regular session in October, then in another resumed session in April 2024. The committee has resolved to take a decision on the draft in October 2024. Gender must be on the table throughout the discussion and eventual negotiation of the CAH treaty, and everywhere that States seek to prevent or punish atrocity crimes. Otherwise, these efforts at prevention will be futile, punishment incomplete, and victims will continue to suffer the gendered impacts of crimes against humanity.

apartheid, atrocities prevention, Crimes Against Humanity, Gender, International Criminal Court (ICC), International Criminal Law, International Human Rights, International Law Commission, Mass Atrocities, persecution, sexual and gender-based violence (SGBV), slavery, United Nations General Assembly

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Progress, Resistance, and Silence on Gender Justice in the Draft ... - Just Security