Photo courtesy of Groundswell.

If you haven’t heard about the new treaty on crimes against humanity that the United Nations has in the works, you’re not alone. Most haven’t.

What you should know is if this treaty goes forward for adoption in its current draft form, only some—not all—people will be protected from crimes against humanity like massacres, rape, torture and persecution. This is because the treaty adopts an outdated definition of gender that some states will inevitably use to shirk their responsibility for addressing gender-based crimes.

We need this treaty, first of all, because it could help bring such atrocities to light and perpetrators to justice. The only permanent court in existence for prosecuting such crimes, the International Criminal Court (ICC), doesn’t have a mechanism for interstate cooperation, and few states have crimes against humanity incorporated into their domestic legislation.

The problem is that the draft treaty adopts the definition of gender from the Rome Statute, which established the ICC, stating: “it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society.” On its own, the definition does not make clear who is protected. While it’s understood to be inclusive of all gendered crimes that meet the threshold of persecution, there has never been a successful prosecution at the ICC. Not surprisingly, since the Rome Statute’s codification, such a definition has never been used again.

To understand how this definition of gender came about we have to go back about twenty years. During the 1990s in Rome, women’s rights advocates rallied for the term “gender” instead of “sex” to be listed alongside race, ethnicity, religion and the other the protected groups from persecution. A small, socially conservative opposition objected, fearing the term “gender” would more broadly affirm LGBTI rights as human rights. They also wanted to limit the scope of women’s rights.

Since Rome, two decades of international human rights law has solidified the definition of gender as a social construct across UN Agencies and human rights mechanisms. The term sex is left for biologists. However, while this “footnote” to the term gender is understood to be inclusive, there are states that would gladly use this opaque definition as an excuse to ignore conflict-related gender-based crimes.

So how does an outdated definition to a protected group get adopted into a new crimes against humanity draft treaty?

             Photo courtesy of CUNY Law School

While oodles of rights and protections were taken into consideration during the dialogues on the draft treaty, no one thought to discuss gender. Perusing through the comments over the last four years of discussions and debates by states and experts partied to the drafting process, not one mentions the outdated definition that was cut and pasted into the draft. While issues concerning everything from the rights of witnesses and victims to the cooperation between states have been discussed in great detail, there’s no mention of women, gender, LGBTI people, or even sexual violence. 

At the beginning of the drafting process, a small handful of legal advocates pointed to the definition and called for the drafters to either not include it¾since no other ground of persecution required one¾or adopt a clearer definition as used by the UN. Valerie Oosterveld, an international criminal law professor who was a pivotal delegate at Rome, raised concerns about the problematic nature of adopting a definition into the CAH treaty that was drafted to be deliberately ambiguous (“constructive ambiguity” in diplomatic parlance) in order to resolve polarized positions during the Rome Statute negotiations. Considering she’s one of the foremost experts on the issue of gender under international criminal law, it’s astonishing her ideas were dismissed.

Part of the problem stemmed from the fear that the controversy surrounding the definition twenty years ago would resurface and tank the treaty if the debate on gender were reopened. Some states and drafters have expressed the need to get the treaty passed expeditiously and to keep the original language from Rome intact.

But does a new treaty that codifies an outdated definition of gender serve the interests of justice?

Fighting for recognition of gender-based violence is not new. Sexual violence crimes were not taken as seriously as other crimes in the early years of international criminal tribunals. Feminists had to struggle tirelessly to secure the recognition of rape as a form of torture in certain contexts.

In the 1990’s the Human Rights and Gender Justice Clinic of CUNY Law School, (known then as the International Women’s Human Rights Initiative Clinic) served as the secretariat for the Women’s Caucus for Gender Justice, a global coalition of women’s rights activists working to address gender gaps in the draft Rome Statute. Just as there was push-back against the term “gender”, there was also great opposition to recognizing sexual violence as a serious international crime.

A key component to their success was combining advocacy with legal strategy. 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.”

This is a pivotal moment in history to affirm our understanding of discrimination, including where gender-based oppression dictates narratives for sexual orientation, gender identity and sex characteristics. What we do now will affect people’s rights for generations to come.

It’s time for the international community to take a stand. A treaty meant to protect people against the worst atrocities imaginable by its nature should protect all of us.