Feminist activists globally, State representatives, and other civil society actors have debated how to define “gender” in international criminal law (ICL) for at least two decades. In one of the most crucial plenipotentiary meetings in ICL—the Rome Conference that established the International Criminal Court (ICC) and its Statute in 1998—defining “gender” resulted from a very tenuous consensus. On the one hand, feminist NGOs at the time, along with some State representatives, were adamant about having gender defined as a social construct that assigns roles to men and women. On the other hand, conservative NGOs, the Holy See, and another set of State representatives were immovable in their understanding that gender referred to the two “sexes,” male and female. The result of this impasse was the oddly constructed definition enshrined in article 7(3) of the Rome Statute, which tries to combine both views by defining “gender” as the “two sexes, male and female, within the context of society.”
This opaque definition has been the subject of sustained feminist critique from its adoption. Feminist scholars and practitioners have explained how the Rome Statute definition of gender conflates two different concepts—sex and gender—and, for this reason among others, such as gendered applications of modes of liability, provides little space for accurate prosecution of international gender-based crimes, and their intersectional dimensions, at the ICC.
In June 2024, the first ICC case in which the charge of gender persecution went to trial resulted in acquittal on that and other gender-based crimes. Trial Chamber X of the ICC acquitted Al Hassan of the war crimes of rape and sexual slavery and the crimes against humanity of rape, sexual slavery, other inhumane acts in the form of forced marriage, and consequently gender persecution. The majority found that although certain sexual and gender-based crimes had taken place in Timbuktu, Northern Mali, between 2012-2013, Al Hassan—who served as the de facto head of a religious police organization run by militant groups Ansar Dine/AQIM when they held control over those areas—was not responsible for those crimes, although he was convicted of other crimes, including persecution against the civilian population on religious grounds.
Indeed, the ICC has been infamous for the lack of effective investigative and prosecutorial strategies resulting in the conviction of individuals credibly suspected of committing international gender-based crimes. At the core of this shortcoming is the failure to capture the social construct that is gender as a structural driver of gender-based discrimination, crimes, and their impacts “within the context of society” and over time (Rome Statute, Art. 7 (1) (3)). This has unfortunately and again been confirmed by the Al Hassan case in which the accused was acquitted of all sexual and gender-based crimes, while overlapping evidence proved sufficient to secure a conviction on other charges. Moreover, the Rome Statute definition has not, since 1998, been replicated by any other international body or “human rights instrument nor cited in tribunal jurisprudence.” Even the ICC’s own Office of the Prosecutor adopted another, slightly more progressive, definition of gender in its 2014 Policy Paper on Sexual and Gender-Based Crimes, 2022 Policy on the Crime of Gender Persecution, and 2023 Policy on Gender-Based Crimes— though it continues to refer to “maleness” and “femaleness,” i.e. biological sex characteristics, as signposts to understand “gender.”
Almost three decades after the Rome conference, these controversial debates over the conceptualization of “gender” re-surfaced in the making of the Draft articles on Prevention and Punishment of Crimes Against Humanity by the International Law Commission (ILC). In the first iterations of the draft, the ILC re-used the highly criticized gender definition achieved for the Rome Statute, given its status as “agreed language” in ICL. This replication, however, was met with a broad campaign, by feminist and LGBTQIA+ rights advocates, who organized around having the Rome Statute gender definition either updated or deleted from the text altogether. Amidst the growing anti-gender movements of the late 2010s and early 2020s, in 2019 ILC members chose the latter option, primarily as a pragmatic route to avoid future disagreement among signatory States.
Within the context of rising anti-gender and anti-trans sentiment, it may seem somewhat risky to leave “gender” undefined, especially in a Convention that is meant to be applied by different jurisdictions worldwide. Indeed, in the follow-up discussions to the ILC (“Draft Articles”) in April 2023, October 2023, and April 2024, the division between States against and in favor of the removed definition of “gender” crystallized. Interestingly, a number of delegations that usually take a progressive view of gender supported the omission because the definition contained in the Rome Statute had become obsolete and that “its absence provided more flexibility for States at the national level” (para. 31). Other delegations preferred to retain the Rome Statute definition. Despite the two opposing views, there had been unity in the fact that “guidance [on clarifying the term ‘gender’] was still needed on how to define it” (para. 31). As a successful result of strategic feminist advocacy with the goal to advance gender justice in the Draft Articles, the written summary of the deliberations during the resumed sessions in October 2023 and April 2024 note that “several delegations expressed openness to considering additional preambular text, including the need to integrate a gender perspective” (para. 14). Against this background, as much as several States recognize that the legal protection of a civilian population requires a gender-competent analysis of alleged violations, these ongoing deliberations demonstrate tensions as to how they would like gender and gender-competent approaches to permeate the Draft Articles.
As such, it may appear more prudent to define gender. However, we believe that leaving the term undefined may represent a groundbreaking opportunity to recognize the achievements of gender-competent and intersectional feminist practice in ICL, without creating a straitjacket that may limit, rather than improve, inclusion and protection.
This topic will certainly resurface at future deliberations at the Sixth Committee and at a possible U.N. Conference of Plenipotentiaries on Prevention and Punishment of Crimes against Humanity, which will be discussed during the next resumed session of the Sixth Committee, scheduled for Oct. 10. In anticipation of such deliberations, States and advocates should advance the idea of non-definition of gender as the best possible outcome for an eventual CAH treaty, in accordance with current state of the art in international law.
On the Significance and Possibilities of Non-Definitions
Having gender non-defined in an international normative instrument is not a novel strategy. In the 1995 Fourth Conference on Women, which led to the adoption of the Beijing Declaration and Platform for Action, activists and State representatives decided not to define the term in the document, leaving it to be “interpreted and understood as it was in ordinary, generally accepted usage” (see here at 218). This exact formulation was also proposed by the Chair of the Working Group on Applicable Law at the Rome Conference, given the contentious debates around gender for negotiating the Rome Statute. However, some State representatives rejected this non-definition at the Rome Conference. Their main argument was that the term “gender persecution” was a somewhat novel concept for States and international organizations and, as such, needed further clarification.
Indeed, there is precedent in ICL for leaving similar terms undefined. Despite some States successfully advocating to define gender in the Rome Statute to aid in the clarity of the persecution provision, the same argument was not observed for other grounds under the same crime—such as race, political status, and religion. These terms were also left undefined in the first iterations of the CAH draft. As advocates of revisiting the Rome Statute’s definition have rightly pointed out, this different standard seemed to send a message that “persecution on the basis of gender [was] secondary or qualified, and not equivalent to other persecutory categories.” Indeed, race, political status, and religion are just as plural (and sometimes competing) in their meaning for different actors and regions as gender is. Why, then, only claim that the latter needs a “clear enough” definition?
This, in turn, also brings us to reflect on the political significance of having to define oneself. Often, subordinate or unwelcome individuals are demanded to “explain themselves” in order to be “understood” by those who wield power—think, for instance, of a transperson in bathrooms, or an illegalized person at borders. Perhaps in a closer analogy to the issue here, gender-diverse individuals are often forced to define themselves in “common” (read: outdated) terms, even when their self-expression and experience of gender cannot (and should not) be captured by such obsolete definitions. On the other hand, those in a dominant or “common” position are deemed not to need an explanation whatsoever. Instead, they can non-define themselves as evidence of their authority and acceptability within a community or context, thus using silence to speak for themselves.
It is high time the international community considered the concept of gender as authoritative enough not to need an explanation in ICL. While back in 1998, it could be considered as a term that needed definition—for its marginalization or novelty—this is no longer the case in 2024. Instead, and as painstakingly demonstrated by the campaigners to update or delete the gender definition from the CAH draft, the concept of gender as a social construction has been successfully mainstreamed in international law—to a point that there seems to be a broad consensus in international institutions that there is the agreed baseline on the meaning of the term (see below). However, leaving gender non-defined can allow for further expansions and developments.
That said, and agreeing with the insightful analysis of Neiha Lasharie, we acknowledge that advocacy and pressure are vital for this approach to work. For that, four specific points could be useful for advocacy in reminding States and practitioners alike how gender already speaks for itself in ICL, and the possibilities this holds.
- The conflation of “gender” and “sex” is no longer tenable under international law.
Already in 2018, U.N. Independent Experts submitted comments to the Draft Crimes Against Humanity Convention and weighed in on whether the definition of the Rome Statute should be deleted from the Draft Articles. In arguing in favor of the deletion, they provided guidance on how gender is to be understood under international human rights law (IHL) by referencing numerous U.N. and regional treaty bodies’ court decisions, as well as thematic reports by U.N. Independent Experts, which do not take the two terms as interchangeable. Notably, the comments highlighted the undue conflation between biological sex and gender in the Rome Statute’s definition and consequently recommended deletion of the definition.
- Gender is already understood as encompassing (but distinct from) gender identity and sexual orientation in international and comparative law.
The 2021 report “The Law of Inclusion” by the U.N. Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity provides essential guidance on how gender is understood in international and regional human rights law, jurisprudence, and international processes, especially as encompassing, but distinct, from gender identity and expression (paras. 12-22). The expert refers to a robust corpus iuris of sources within IHL that, together, frame gender as “a sociocultural construct that assigns roles, behaviours, forms of expression, activities and attributes according to the meaning given to biological sex characteristics.”
Similarly, the Yogyakarta Principles on Sexual Orientation and Gender Identity (YP), elaborated by renowned experts in the field, define gender identity as “each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body and other gender expressions, including dress, speech and mannerisms.” Sexual orientation, on the other hand, is defined in the preamble of YP 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.”
As such, gender is the background through which individuals live and experience their gender identity and expression. This is succinctly clarified in the “Law of Inclusion” report, which acknowledges that “nothing in the body of international law suggests that only trans or gender-diverse person have a gender identity and that, to the contrary, all human beings live in gendered societies permeated by power hierarchies and preconceptions” (paras. 12-15).
International law and related guidance already provide sufficient nuances to understand how persons and communities are distinctly targeted and impacted by international gender-related crimes, including crimes against humanity. The investigation of such crimes ought to be informed by existing international law sources and the understanding of gender identity, gender expression, and/ or sexual orientation put forward therein. This nuanced understanding is a necessary starting point so that those investigating, prosecuting, and hearing charges of gender-related crimes can take specific and adequate steps to uncover information and evidence about harms on the grounds of gender identity and/or sexual orientation.
- Notions of “gender” in international law already cater to cultural differences.
Gender in ICL must be understood expansively while considering cultural differences. This is why we believe that “gender,” without a straitjacket definition, is the best option available in international law to address the different realities of (and violences suffered by) gender-diverse individuals around the world. Take the LGBTQIA+ acronym, for example. Albeit widely used to encompass a multitude of gender-diverse experiences (from sexual orientation to gender identity), it remains a term coined in the Global North with minimal applicability in much of the world. It follows that persons targeted and impacted by violence in distinct ways on grounds of their gender identity or sexual orientation may identify themselves in ways that do not coincide with it. In the same spirit, footnote 5 of the 2022 Policy on the Crime of Gender Persecution notes that “while the acronym LGBTQI+ is inclusive of a broad range of persons, it is not exhaustive, nor is it the universally standard acronym.”
As such, “gender” allows for more pragmatic and culturally sensible comprehensiveness over convenience, especially since certain lived experiences relate to an understanding of gender that may or may not comply with either sexual orientation or gender identity. Examples highlighted by the Independent Expert in that regard are the lived experience of two-spirit persons (North America), muxes (Mexico), hijra (India), kathoey (Thailand), bakla (Philippines), travestis (Argentina and Brazil), fa’afafine (the Samoan islands), and leiti (Tonga) (see here, at para. 9).
- Non-defining gender allows for non-binary, anti-colonial, anti-racist and intersectional approaches.
The former Special Rapporteur on contemporary forms of racism, E. Tendayi Achiume, discussed the importance of an intersectional approach to racial discrimination in the context of citizenship, nationality, and immigration laws that accounted for the compounding and differential effects of sex and gender, among other factors, and noted that States continued to enforce patriarchal laws that used gender-based discrimination to achieve racial, ethnic, and religious exclusion (see here, at para. 12).
The Special Rapporteur on the right to health, Tlaleng Mofokeng, adopted a substantive equality approach through intersectional, anti-racism, and anti-coloniality frameworks (see here, at paras. 8-15 and here, at paras. 3-7). Per this definition, a substantive equality approach “seeks to address structural and indirect discrimination and takes into account power relations.” It recognizes that the “dilemma of difference” entails both ignoring and acknowledging “differences among human beings in order to achieve equality” (see here, at para. 14). In her 2022 report on “Violence and its impact on the right to health,” Mofokeng critically proposes “an intersectional, non-discriminatory and gender (non-binary) approach that understands gender-based violence as a phenomenon that includes matters of sexuality, and violations against persons on the basis of their real or imputed sexual orientation, gender identity and sex characteristics,” and underlines that “a non-binary approach to gender and gender-based violence is well-rooted in international human rights law” (paras. 23-30). As such, this approach is particularly in line with an analysis that recognises the “coloniality of gender,” which, in the words of María Lugones, requires an “understand[ing of] the organization of the social so as to make visible our collaboration with systematic racialized gender violence, [and] come to an inevitable recognition of it in our maps of reality” (p. 207).
Concretely, a non-definition of gender allows for approaches to gender and gender-based violence that are not “solely based on binary gender” and that do not risk “protecting only cisgender women and girls, whether heterosexual, lesbian, or bisexual, excluding transgender women and other persons perceived as non-conforming” (here, at para. 26). Instead, such approaches to a non-definition of gender expand legal protection under international law to “all persons, communities and populations” (para. 24) and “all cisgender, queer, intersex and transgender women and feminine presenting people” (para. 24) from gender-based structural and institutional violence driven by “patriarchal, racist, ableist, homophobic, transphobic and capitalist oppressions” (para. 28).
Conclusion: The Work is Done and Ready to Be Seized
Since the deletion of the definition of gender from the Draft Articles, there has been debate around the usefulness and applicability of a non-definition. Acknowledging that silence can be a particular political strategy, here we advance it as a possibility of careful listening in the making of ICL. And, for that, the footholds provided by gender-competent work in international law already provide good leverage. In sum, the work is already done and ready to be seized.
Further, non-definition is a crucial opportunity for intersectional and feminist coalition building in ICL. As such, we agree with Patricia Viseur Sellers that the “doctrinal spinal cord of international criminal law” is a distinctly inclusive protection of groups under each core international crime. It is high time to offer effective and inclusive protection for the expansiveness of gender worldwide.