Intersex: A Neglected Category in the Understanding of Gender-Based Crimes at the ICC?

[María Manuela Márquez Velásquez is an LL.M. Candidate in Advanced Studies in Public International Law at Leiden University. LL.B. Universidad del Rosario, Bogotá-Colombia.  She is currently Assistant Student Editor at Leiden Journal of International Law and Coordinator of the Theory of Public International Law Research Group at Universidad del Rosario.]

The Office of Prosecutor ICC (OTP) has announced a new policy initiative to advance accountability for crimes against humanity of persecution on the grounds of gender. The new policy aims to further develop the 2014 Policy Paper on Sexual and Gender-Based Crimes and continues the legacy of the former prosecutor Ms. Fatou Bensouda in the Al Hassan case. Yet, many challenges at the conceptual and institutional level will have to be sorted out before effectively employing this ground. 

The Rome Statute of the ICC was the first international instrument to list persecution on the grounds of ‘gender’ as a crime against humanity. However, the word ‘gender’ is non-passive and wide. Several UN institutions and Human Rights Organizations have defined it as a complex socially constructed concept influenced by culture. A mutable idea among societies and times; a learned category rather than an inherent attribute. Hence, some of them have contrasted the concept with that of ‘sex.’

According to the WHO, the Secretary-General’s Report, Yogyakarta Principles, and the UNHCR SOGI Guidelines, while ‘sex’ refers to the biologically determined differences between men and women that are universal, ‘gender’ refers to the changeable and learned differences between men and women. A less-used term in the UN family is that of ‘sexual orientation,’ which has been understood as ‘each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.’ 

In this regard, Article 7(3) of the Rome Statute defines the word ‘gender’ as referring ‘to the two sexes, male and female, within the context of society.’ This is a progressive article borne from a long-lasting battle with NGOs, the Holy See, and some states who associated the term with ‘transgressive’ ideas. It is the product of the insatiable work of the feminist movement and implies a great victory in the defense of human rights and the illumination of the plight of disregarded communities. However, the statute’s definition of ‘gender’ might blur the concepts of sex, sexual orientation, and gender as a socially constructed idea. 

But what then is the relevance of delimiting the term? What are the implications of its definition for the OTP? The question of collapsing the word ‘gender’ into sex, gender, or sexual orientation has profound consequences for the prosecution of the crime contained in 7(g) of the Rome Statute. If the word is interpreted as meaning no more than ‘sex,’ as pointed out by Valerie Oosterveld, the ICC would be unable to analyze the roles of women and men in a determined society. Thus, acts like those perpetrated by ISIS against the Yazidi community cannot be prosecuted as a gender-based crime against humanity. 

On the other hand, interpreting the term as a social construct accompanied by roles, behaviors, activities, and attributes assigned to women and men and girls and boys as previously done by OTP Policy is appealing. According to this option, gender-based persecution would mean targeting a group because of socially constructed ideas of what it means to be male or female rather than because of its membership to the biological categories of ‘male’ or ‘female’. Thus, gender would be understood in the terms of underlying narratives of society and gender-based persecution as those crimes committed in a widespread or systematic nature implementing violence to reinforces the ideas of what a determined society understands as feminine or masculine.  

Nonetheless, the interpretation of the concept as a learned category will also fall short of protecting other situations. The approach covers, for example, attacks on female teachers and students motivated by a socially constructed belief that only men and boys should be educated. It also covers persecutions limiting the participation of women in politics, religion, or even honor killings; but fails to encompass discriminatory and systematic crimes based on the person’s biological conditions.

Intersex is a term that alludes to natural bodily variations, sometimes visible at birth and sometimes only apparent in puberty. It refers to individuals born with sex characteristics-genitals, gonads, chromosome patterns- that do not fit the traditional binary notions of male or female bodies. It relates to biological sex characteristics and differs from gender identity, gender as a constructed concept, and sexual orientation. 

As stressed by the UNHCR SOGI Guidelines, ‘an intersex person may identify as male or female, while their sexual orientation may be lesbian, gay, bisexual, or heterosexual.’ Intersex persons may be persecuted for their ‘atypical’ anatomy, facing discrimination or abuse ‘for having a physical disability or medical condition,’ or for the non-conformity of their bodies with expected appearances of females and males. Thus, if the approximation of a socially constructed idea of gender were to be taken, persecution of intersex or androgyne individuals would not be covered by article 7(3) Rome Statute. 

Furthermore, in any option, persecution based on sexual orientation seems to be also excluded from the article’s scope. The term ‘gender’ will only cover those situations of non-conformity with the perceived role assigned to males and females and not those relating to the sexual preferences of the individual targeted. 

What can be done to protect all the situations? Firstly, a distinction between the ground of persecution and the identity of the targeted group, as suggested in Ongwen’s confirmation decision, should be taken. This is to interpret the crime of gender-based persecution as persecution on gender grounds rather than against gender groups. Secondly, a decision must be taken. The first option is to interpret gender as incorporating ‘sex’, ‘gender as a social construct’, and ‘sexual orientation’, ergo, covering all possible scenarios. The second is to understand it as a socially constructed concept. Hence, prosecute discrimination based on sex and sexual orientation under any other ‘grounds that are universally recognized as impermissible under international law.’ 

Nevertheless, neither of the options is a perfect solution; both risk little prosecution -as it has been until now- or difficult judicial recognition. Both give space for hideous crimes against communities that have tried to survive for years, that have been constantly stigmatized on diverse grounds, and that struggle for recognition in the international arena.