New Crimes Against Humanity Treaty Must Not Perpetuate Outdated Definition of Gender

[Danielle Hites is the Staff Attorney at the Global Justice Center, an international human rights organization dedicated to advancing gender equality through the rule of law.]

Despite the international community’s recognition that crimes against humanity are among the most serious crimes, there is no codified crimes against humanity treaty. The International Law Commission has undertaken the task of drafting one.

Currently crimes against humanity are codified under the Rome Statute for the International Criminal Court (ICC), the only permanent court with jurisdiction over such crimes. The Rome Statute does not establish a mechanism for interstate cooperation, and few states have incorporated crimes against humanity into their domestic legislation. Thus there are limited opportunities to hold perpetrators accountable at either the international or domestic level.

A crimes against humanity treaty could improve accountability by expanding jurisdiction to include recourse to the International Court of Justice and obligating states to prevent, protect, and punish such crimes. However, accountability for some at the expense of others cripples the legitimacy of the international law system.

The International Law Commission has provisionally adopted draft articles that serve as the basis for a potential Convention on Crimes against Humanity. The draft articles replicate the Rome Statute’s definitions of crimes against humanity. If the text is not amended, it will perpetuate discriminatory treatment of women, girls, and LGBTQ persons.

Under the article on forced pregnancy, which criminalizes the “unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law,” the Rome Statute limits the interpretation from “affecting national laws relating to pregnancy.”

The caveat serves no legal purpose and was the result of dangerous political compromise to assuage states’ concern that establishing forced pregnancy as a crime under the Rome Statute would compel States to change their criminal abortion laws. No other crime under the treaty or draft articles has an exception for national law, and this caveat is at odds with the way other crimes against humanity are prosecuted, applying domestic law only as a last resort.

Since the adoption of the Rome Statute, the recognition and protection of abortion as a fundamental human right has grown. UN treaty bodies and special rapporteurs have found that prohibitions on abortion violate the rights to life, health, and freedom from torture. Language that legitimizes state laws criminalizing abortion are out of step with the modern interpretation of forced pregnancy and increased calls to decriminalize as a matter of international human rights

Similarly replicated from the Rome Statute is a limited and archaic definition of gender as “the two sexes, male and female, within the context of society.” Gender is the only criteria for a protected group defined under the crime of persecution, included to appease states opposed to the inclusion of gender as a protected group rather than bring clarity to the term.

The drafting history shows this compromise served no legitimate legal purpose, but was born out of animus towards sexual and gender minorities. The impetus behind the definition was to attempt to exclude State-sanctioned discrimination against LGBTQ individuals, namely the criminalization of homosexual acts, from the definition of persecution.

International mechanisms, including the Office of the Prosecutor of the ICC, have adopted a broad definition of “gender” that encompasses the social construction. Moreover, regional and international human rights bodies have recognized sexual orientation and gender identity as protected under existing non-discrimination provisions, despite no explicit references in the foundational human rights treaties.

In the 20 years since the adoption of the Rome Statute, the ICC has proven ineffective at prosecuting sexual and gender-based crimes—to date there have been no successful convictions. The Bemba Case had the first ever conviction on gender-based persecution, but was overturned last June. In 2016, The Prosecutor v. Dominic Ongwen became the first case in which forced pregnancy has even been charged. The case is still being heard at the trial stage. Women and gender and sexuality minorities have been subjected to rape, forcible impregnation, sexual slavery, torture, and death on the basis of their sex or prescribed gender roles across Syria, Bosnia, Rwanda, and Nigeria. Despite these atrocities, there has been a dearth of convictions and prosecutions.

The Global Justice Center has submitted a brief to the International Law Commission, calling on the Commission to learn from the failings of the Rome Statute and bring the draft articles in line with modern understandings of forced pregnancy, the right to abortion, and the meaning of gender. The Commission must amend the draft articles on crimes against humanity to remove the caveat that excludes national abortion laws from the definition of forced pregnancy and eliminate the limited and outdated definition of gender in the context of persecution. It must also commit to a full gender audit of the draft articles.

We cannot allow these outdated notions on abortion and gender to be carried forward into new legal standards. We must build on the 20 years of progress since the Rome Statute and ensure that antiquated restrictions are not codified into new laws.