This is how we won a historic victory for women’s and LGBTIQ rights in international law 

The final draft of a new international crimes against humanity treaty has dropped an outdated definition of gender, affirming the rights of all people.

Lisa Davis

LGBT rights rally in Quezon City, Philippines, 2018. George Buid/Zuma Press/PA Images. All rights reserved.

When it comes to the letter of the law, a few words can mean the difference between having your rights protected – or not. This is why human rights advocates are celebrating this month: after a worldwide campaign, and many long meetings and legal arguments, the new draft of the international crimes against humanity treaty has lost an outdated definition of gender that could have been used to limit protections for women and LGBTIQ people in war.

On 7 June, the International Law Commission – a body of experts set up by the UN in 1947, to help develop and interpret international law – formally recommended this draft for adoption by states. Finally this treaty, which heads to the UN General Assembly later this year, holds the promise of justice for all victims of the world’s worst atrocities.

Previous drafts of this treaty included a definition of gender borrowed from the Rome Statute (which governs the International Criminal Court (ICC)) that isn’t clear on who is protected. It says: “the term ‘gender’ refers to the two sexes, male and female, within the context of society” – overlooking trans and gender non-conforming identities and leaving it open to dangerous interpretation.

Law scholars and the ICC’s own Chief Prosecutor do understand this definition to include LGBTIQ people, and more broadly, women and men persecuted for not following oppressive dress codes, or ‘traditional’ gendered roles. However, the new draft crimes against humanity treaty doesn’t come with an international court – it’s left up to states to implement. And some consersvative governments may try to take advantage of the definition’s opacity and ignore conflict-related gender-based crimes.

The story of this treaty, and its language, is long – as was the process of removing this controversial gender definition from the text. It took immensely coordinated campaigning from rights advocates and lawyers. This is a significant legal victory for women’s and LGBTIQ rights – and three groups that came together to push for the definition’s removal: MADRE and CUNY Law School, where I work, and OutRight Action International.  

“Finally this treaty holds the promise of justice for all victims of the world’s worst atrocities”

Under international criminal law, you can’t persecute people based on sexual orientation, gender identity or sex characteristics. But fundamentalists around the world are promulgating fear and justifying discrimination with claims that women and LGBTIQ rights advocates want to impose what they call “gender ideology” – a supposed attack on “natural families”, “feminine values” and the male-or-female binary as the will of God.

At the bottom of these movements is a fear that women will break out of their “traditional roles” as mothers and caretakers, and seek education or employment instead. (As if women can’t do both, and while rigid gender roles also have negative consequences for men). Meanwhile, ultra-conservatives are trying to erase LGBTIQ rights altogether, as their very existence challenges their rigid gender narrative.

This is the context in which we mobilised to challenge the opaque gender definition in the crimes against humanity treaty, which the International Law Commission body of experts opened to comments from the UN, national governments and civil society groups last year. At first, our arguments were met with a chilly response from the treaty’s supporters. 

Their pushback was simple: the more changes there were to the treaty’s language, they feared, the more likely it would be that fewer states adopt it. This reasoning was familiar: thinking like this has consistently meant that women’s and LGBTIQ rights are deprioritised in conflicts, including sexual and reproductive healthcare in humanitarian crises. In peace talks, the rush to get warring parties to the table too often leads to women’s exclusion.

Can human rights advocates working together make a difference?

Just ask Ray Acheson, who led a civil society advocacy coalition that secured a legally-binding provision on gender-based violence in the Arms Trade Treaty. Ray recalls: “At the beginning, we were getting questions [from governments] like, ‘What does gender-based violence have to do with the arms trade? I don’t get the connection.’ By the end, we had a hundred states saying that it had to be in the treaty and it had to be legally binding”.

Similarly, we didn’t give up at that initial chilly response. Instead, we organised a worldwide campaign for the outdated gender definition to be removed or revised. Time was against us: we had to rally states, UN agencies and civil society groups to make submissions supporting these arguments, and the treaty was only open for comments for one year. 

“History will remember that all of us working together can make a difference”

We spent the first six months organising meetings with experts to work out our legal arguments and reasoning. We held seven briefings to receive feedback from representatives of the International Law Commission, governments, and civil society from around the world. We also distributed a toolkit in four languages to support broad civil society input on the treaty’s gender language and other key provisions.

CUNY Law School compiled feedback from these workshops, briefings and consultations, for a submission to the commission that offered a holistic legal analysis and recommendations to either remove or revise the gender definition. We also circulated our arguments and recommendations in five languages for other groups to sign on to. 

Ultimately, nearly 600 organisations and academics from more than 100 countries signed our open letter. At least nine other civil society submissions echoed our demands, including from 60 African human rights groups, led by the Southern Africa Litigation Center; 12 transgender rights groups; two intersex rights groups; and Human Rights Watch. 

Moreover, 19 governments affirmed that the rights of women and LGBTIQ people are protected under international criminal law and said this treaty must reflect that. No state spoke against gender rights in the treaty process. An astounding 24 UN special rapporteurs and other experts signed another submission echoing our legal reasoning. 

The result, this month, was a final draft of the crimes against humanity treaty from the International Law Commission that removes the outdated gender definition, citing our arguments. Though our campaign isn’t over. Next, the treaty goes to the UN General Assembly this autumn, where states will again debate its language and decide its fate. 

Whether it becomes law or not, this is clear: history will remember that all of us working together can make a difference, because all of us have rights that must be protected.

Will the new crimes against humanity treaty protect women and LGBTI persons?

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               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?

Bensouda Photo

             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.

 

Activists launch case for prosecution of ISIS crimes against women and LGBTIQ persons

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OWFI Staff Member leads civilians fleeing ISIS conflict in Samara

In Iraq, including in areas controlled by ISIS, women, girls, LGBTIQ people, and those otherwise perceived as stepping outside of traditional gender roles have been targeted for violence on a staggering scale. ISIS fighters have tortured women doctors and nurses who have not complied with rigid dress codes when doing so interfered with the performance of their medical duties. They have executed women who have resisted forced marriage or who have served as politicians. Men believed to be gay have been thrown off buildings. Women believed to be lesbians have been issued death warrants. ISIS has killed youth because of their alternative forms of personal expression or refusal to join their militia, labeling them “faggots.”

War-time abuses against people who are marginalized within their societies are rarely documented. As a result, such violations are excluded from human rights discourse and from future justice processes. In effect, they are left out of history. For this reason, Iraqi activists, at great personal risk, have been documenting these crimes, and not only those committed by ISIS but also by Iraqi government forces, and other militias. They have preserved critical information about perpetrators and larger criminal networks. Many of these same documenters have also provided safe passage and shelter to people at imminent risk of sexual slavery or murder.

For this reason, on November 8th, advocates filed a new petition—the first of its kind—to the International Criminal Court (ICC), to advance protection of the rights of women and LGBTIQ people. Filed jointly by three organizations—MADRE, the Human Rights and Gender Justice (HRGJ) Clinic of the City University of New York (CUNY) School of Law, and the Organization of Women’s Freedom in Iraq (OWFI), and with help from the law firm Debevoise & Plimpton, the petition argues that the international community should prosecute ISIS fighters for crimes committed on the basis of gender, including discrimination based on sexual orientation and gender identity. These crimes are all forms of gender-based persecution.

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Lisa Davis discusses the findings in the petition to the ICC at the Prosecuting ISIS Crimes against Women and LGBTI Persons event

This is the first time the world has seen this kind of robust documentation of crimes against  women and LGBTIQ persons for transgressing gender norms during an armed conflict. The petition therefore offers a new opportunity to challenge this type of violence. Of course, knowledge of egregious crimes committed against women and perceived or actual LGBTIQ persons in armed conflict itself is not new. At the world’s first international criminal prosecutions in Nuremberg, Germany, rape and sexual slavery of women and torture of LGBTIQ persons were acknowledged but never prosecuted.

It was only in the 1990s, with the creation of the International Criminal Court, that gender-based forms of violence were first recognized as violations of international law.

At the time, women’s rights advocates rallied drafters of the Rome Statute that governs the ICC to abandon the “outrages to personal dignity” language to describe sexual violence. They succeeded to broaden the category of sexual violence to include not only rape, but also sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and other previously undefined forms of sexual violence.

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Madeleine Rees discusses solutions for addressing gender-based persecution during conflict.

 

 

Advocates also succeeded in substituting the word “gender” for “sex” in the Rome Statute—an advance hailed as one of the most important safeguards for gender justice under international criminal law and a major achievement of global women’s movements in the ‘90s. Yet since then,  the full understanding of “gender” under the Rome Statute has not been applied.

ISIS’ atrocities s come at a time when the rights of women and of LGBTIQ people are under threat globally, Last fall, right-wing conservatives curtailed women’s and LGBTIQ rights in Colombia’s peace accord. At the close of 2016, conservative states at the UN General Assembly sought to revoke the mandate of the first independent UN expert on sexual orientation and gender identity. And in countries around the world, rights to individual expression, specifically gender expression are being rolled back.

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Yanar Mohammed, visiting a displacement center in Mosul run by the Organization for Women’s Freedom in Iraq (OWFI)

 

In response, last year and with the help of MADRE and UN WOMEN, CUNY Law School convened an experts meeting on LGBTIQ rights and international criminal law from around the world. Together they honed the strategy for  the petition to the ICC and for ensuring the safety and security of those associated with it, including Iraqi groups named in the petition. Activists also held a series of consultations with Iraqi women’s organizations in-country. For safety reasons, the decision was taken not to translate the submission into Arabic and several supporting groups decided to leave their name off the official submission.

OWFI, CUNY Law’s HRGJ Clinic, and MADRE are seizing this pivotal moment in history to broaden the discourse on gender. Through their petition to the ICC, they seek to expand the understanding of discrimination, including where gender and sexual orientation & gender identity intersect. The groups’ coordinated advocacy and movement-building strategy was explored in an event held at CUNY Law School the day the petition was submitted, entitled,  “Prosecuting ISIS Crimes against Women and LGBTI Persons

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Yanar Mohammed, founder of OWFI talks about the killing of women under ISIS 

The success of this petition could change the landscape of international criminal law, both highlighting and redressing the long-standing targeting of civilians based on gender, sexual orientation, and gender identity in the context of war and conflict. Appropriate action by the International Criminal Court and the international community at large would set a new precedent for prosecuting gender-based crimes and create a new tool for human rights advocates worldwide.

 

 

 

(Cross-posted on Open Democracy)