(Editor’s note: This is the second of three articles analyzing a recent resumed session of the U.N. General Assembly’s Legal Committee to discuss Draft Articles on the Prevention and Punishment of Crimes Against Humanity. See the overview here, and stay tuned for an analysis of discussions related to adding gender apartheid as a crime in the proposed treaty.)
More than 60 U.N. member and observer States indicated support for some degree of gender-related improvements to the Draft Articles on Prevention and Punishment of Crimes Against Humanity (Draft Articles), during a U.N. session last month. The meeting was held under a December 2022 U.N. General Assembly resolution calling for a series of such sessions to discuss elements of the International Law Commission’s (ILC’s) draft treaty, which was developed to address gaps in international law in combatting crimes against humanity.
The session represented the first time that many States addressed proposals intended to ensure the Draft Articles better integrate gender justice as well as prioritizing victims and survivors. The meeting was a follow-on to earlier diplomatic discussions in April 2023 and October 2023, and to written comments that States submitted in December. Irrespective of views on specific gender justice proposals, many States emphasized that the most important step at present is for the General Assembly’s legal committee (the Sixth Committee) to take a decision this coming October to move the process to formal treaty negotiations.
Where States Stand on Gender in the Draft Articles
More than 20 individual States and three State groups representing 63 States voiced strong support for at least one proposal to incorporate gender justice. Eighteen States supported incorporating elements focused on victims and survivors.
The States that expressed hesitation or opposition cited their own perceptions that certain definitions lacked widespread acceptance or that such provisions would either fragment international law and/or deviate too significantly from the Rome Statute of the International Criminal Court.
A chart provided at the end of this article tracks States’ apparent positions on gender justice based on their interventions during the April session.
Gender Definition in the Draft Articles
As with the first resumed session in April 2023, the question of whether to include a definition for the term “gender” was the most widely commented-upon gender issue this time.
The ILC relied heavily on the Rome Statute when drafting the definition of crimes against humanity contained in Article 2 of the Draft Articles. One significant difference between the two definitions is that the ILC excluded the Rome Statute’s definition of “gender” because it is defined there as “the two sexes, male and female, within the context of society.” The ILC’s stated reason for leaving the term undefined in the Draft Articles was to allow “the term to be applied for the purposes of the present draft articles based on an evolving understanding as to its meaning.”
Consistent with current international human rights law, this evolving understanding would presumably include gender as referring to social constructions of masculinity and femininity and allow easier prosecution of persecution on the basis of sexual orientation and gender identity as persecution on “gender” grounds. The Rome Statute’s definition does not specifically preclude this interpretation of gender (indeed, some experts argue that the Rome Statute’s definition must encompass that broad interpretation). However, the argument has been made that omitting the Rome Statute’s definition would avoid any doubt in this respect.
The ILC commentary also noted that other grounds of persecution, including political, racial, national, ethnic, cultural, and religious grounds, were also left undefined in the Draft Articles.
Many of the States that supported the exclusion of a gender definition also expressed that opinion during last year’s session. This included Portugal, which noted this year that they welcomed the removal of the gender definition “which allows great flexibility and protection compared to previously adopted solutions,” and Australia, which noted that the exclusion of a gender definition “enables States to apply such definitions… used within their national systems.” Other States — Chile, Cyprus, and Hungary — also expressed support for this approach for the first time during this session.
Turkey, the Holy See, Pakistan, and the African Group expressed concerns over the exclusion of a gender definition, joining Cameroon, Qatar, The Gambia, Nigeria, and Poland, which had raised similar concerns in October 2023. Turkey argued that excluding the definition might “cause disagreements among States and a considerable number of States may refrain from acceding [to] a future convention for this very reason.”
Gender Crime Definitions
A number of States expressed strong support for improving the language on gender crimes in the Draft Articles, and incorporating gender crimes that were not included in the Rome Statute.
Forced Pregnancy
Article 7(2)(f) of the Rome Statute, which is replicated in the Draft Articles, states: “‘forced pregnancy’ means 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. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.”
Both States and civil society organizations, including the Global Justice Center (GJC, my organization), have proposed two changes to the crime of “forced pregnancy” contained in Draft Article 2(2)(f). The first is to remove the reference to national laws, which does not serve any legal or functional purpose and was only included in the Rome Statute as a political compromise with States that had concerns about national abortion laws. The second proposed change is to replace the term “woman” with more inclusive language such as “woman, girl or other person” to ensure that the crime ultimately encompasses all individuals who may experience this specific harm. Civil society has advocated for the addition of gender-inclusive language to the definition of forced pregnancy to encompass the fact that persons aside from cisgender women can become pregnant.
Cuba, South Africa, and the U.K. advocated for the inclusion of some of these changes. Cuba and Finland (on behalf of the Nordic States) noted that the definition should be considered in light of international legal developments in sexual and reproductive health. South Africa advocated to include girls as potential victims of forced pregnancy, and the United Kingdom advocated for the removal of the caveat regarding national laws.
On the other hand, the Holy See stated that it could not support any amendment to the current definition of forced pregnancy on the basis that it provides States sufficient flexibility to enact national legislation that recognizes and protects the right to life from conception.
Forced Marriage
Forced marriage is not expressly included in the Rome Statute, but it has been successfully prosecuted as the crimes against humanity of “other inhumane acts” pursuant to the relevant statutes of the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia, and the ICC. It has also been successfully prosecuted as the crime against humanity of “sexual slavery” at the SCSL. Advocates of including forced marriage in the Draft Articles, including GJC, believe that enumerating and providing elements for the crime of forced marriage will make it more likely that the crime will be investigated and prosecuted on a national level.
Australia, Brazil, Canada, Colombia, Mexico, South Africa, and the U.K. advocated for the enumeration of forced marriage in the definition of crimes against humanity in a future crimes against humanity convention. In particular, the U.K. referenced the ICC’s Ongwen case, the Court’s first conviction for forced marriage, and proposed a definition of forced marriage that would apply the crime to any “person” regardless of gender or age.
Hungary and the Netherlands also indicated that they were open to including forced marriage as an enumerated crime in a future convention. No States expressed concerns regarding the inclusion of forced marriage.
Reproductive Violence
Mirroring Article 7(1)(g) of the Rome Statute, Draft Article 2(1)(g) currently includes “[r]ape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity” as crimes against humanity. Advocates of including “reproductive violence” in this list, including GJC, believe this would ensure that all possible relevant harms are covered. These crimes include, but are not limited to, forced abortion, forced contraception, and forced breastfeeding.
Australia, Brazil, Colombia, Cuba, and Mexico advocated for the inclusion of reproductive violence in the Draft Articles. In particular, Brazil noted that “a future convention is an opportunity to also codify… manifestations of reproductive violence as that of forced pregnancy and enforced sterilization, such as forced abortion and forced contraception.”
No States expressly advocated against the inclusion of reproductive violence in the Draft Articles. However, some States expressed a general reticence toward diverging from the existing Rome Statute definition of crimes against humanity in order to avoid perceived fragmentation of international law or conflicting obligations for States.
Slavery and the Slave Trade
While enslavement is included in the Draft Article 2(1)(c), the crime does not cover all acts related to the slave trade. The Rome Statute’s Elements of Crimes defines the crime of enslavement congruently with the 1926 Slavery Convention’s definition of slavery, which requires the attachment of ownership power. Because of this, enslavement does not include acts related to the slave trade that do not require ownership, such as the acquisition or distribution of slaves. The inclusion of the “slave trade” to Draft Article 2(1)(c) would ensure that all acts that further slavery are considered crimes against humanity.
Uganda (on behalf of the African Group), along with Australia, Brazil, Colombia, El Salvador, Nigeria, and Sierra Leone, expressed strong support for the inclusion of the “slave trade” in Draft Article 2(1)(c)’s crime of enslavement.
The African Group noted the “negative impacts of the historical, past tragedies of the slave trade, slavery and exploitation including on the African continent… call[ed] for the inclusion of slave trade and slavery as a crime against humanity.” Iceland, the Netherlands, the Philippines, and the State of Palestine expressed an openness to the inclusion of the slave trade in the draft articles. No States raised concerns or opposed inclusion of this crime.
Gender Apartheid
Replicating the Rome Statute’s definition of apartheid, Draft Article 2(2)(h) enumerates the crime of apartheid, defined as certain acts “committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups.” As this definition is limited to racial groups, it does not cover the systemic oppression of individuals based on gender, which commentators argue is currently practiced in states such as Afghanistan and Iran.
Civil society has noted that the inclusion of gender apartheid in a future convention would not require the creation of a new and separate crime, as gender can be incorporated into the existing crime of apartheid.
Australia, Chile, Malta, and Mexico all called for the consideration of gender apartheid in a future convention on crimes against humanity. Five other States — Austria, Brazil, Iceland, the Philippines, and the U.S — expressed an openness to future discussions on the concept.
Cameroon argued that it would be better to address the conduct described as gender apartheid under the existing crime of persecution. However, persecution does not exist as a stand-alone crime in the Draft Articles.
Prioritizing Survivors
Many States called for the inclusion of a “survivor-centric” approach to the negotiations and any future convention on crimes against humanity. This would require States to ensure that victims’ and survivors’ rights are protected, which is especially important for survivors of gender-specific harms such as sexual and gender-based crimes. The approach also would require States to consider the actual effects of proposed language on victims and survivors as they negotiate the future convention, and emphasizes that seeking justice is a right, not a privilege, for victims and survivors.
Ten individual States, as well as Finland (on behalf of the Nordic States) and Latvia (on behalf of the Baltic States) expressly advocated for this approach. Many other States made more general references to the importance of considering victims and survivors, as well as the impact that a future convention would have on both present and future victims and survivors.
Though Turkey “welcome[d] attempts to make sure the voices and stories of victims and survivors of such heinous crimes are heard,” the government queried whether there is a “consensus and clarity about the terms ‘victim-centered’ or ‘survivor-centered’ approaches in international law.”
Moving Forward with Formal Negotiations
While many States expressed support or openness to strengthening gender justice proposals during the second resumed session, almost all of these States also emphasized that any existing disagreements on gender-related provisions would be most properly addressed during formal treaty negotiations rather than in Sixth Committee sessions.
Some States that had been more vocal about supporting the incorporation of gender justice into the Draft Articles also stepped back during the second resumed session to instead focus on the broader picture. For example, the European Union on behalf of its member States said that “[t]he need to integrate a contemporary gender perspective in the draft Convention… could usefully be discussed in a negotiation setting. [It] should not, however, in any way reduce the cardinal value of our objective: that is preventing and punishing crimes against humanity.”
The Sixth Committee will reconvene one last time pursuant to resolution 77/249, in October 2024, to make a decision on whether to move forward with the ILC’s recommendation to elaborate a treaty on the basis of the Draft Articles, either by the General Assembly or by an international conference of plenipotentiaries. Advocates and observers will be watching those discussions closely.
Tracking States’ Positions on Gender Justice
The following chart offers a summary of apparent State positions on gender justice, based on their interventions during the April 2024 session, with links to the full text of the statement where available. Italics indicate that the State expressed this position for the first time to our knowledge.
| Gender Justice Position | Indicating strong support of at least one element of the gender justice position | Indicating openness to at least one element of the gender justice position | Indicating opposition to at least one element of the gender justice position |
|---|---|---|---|
| Gender Definition, i.e. not including a definition | Australia Brazil Canada Chile Colombia Cyprus Finland (on behalf of Nordic States) Hungary Mexico Netherlands New Zealand Portugal Romania U.K. U.S. | European Union (on behalf of its member states) | Holy See Nigeria Turkey |
| Forced Pregnancy, i.e. to remove the national law caveat and have a more expansive reference to persons as opposed to women | Cuba South Africa U.K. | Finland (on behalf of Nordic States) | Holy See Pakistan |
| Forced Marriage, i.e inclusion of the crime | Australia Brazil Canada Colombia Mexico South Africa U.K. | Hungary Netherlands | |
| Reproductive Violence, i.e. inclusion of the crime | Australia Brazil Colombia Mexico | ||
| Gender Apartheid or Conduct That Would Amount to Gender Apartheid, i.e. inclusion of the crime | Australia Chile Malta Mexico | Austria Brazil Iceland Philippines U.S. | Cameroon |
| Slavery/Slave Trade, i.e. inclusion of the crime | Australia Brazil Colombia El Salvador Nigeria Sierra Leone Uganda (on behalf of the African Group) | Iceland Netherlands Palestine Philippines | |
| Survivor-centric approach | Belgium Colombia El Salvador Iceland (on behalf of Nordic States) Latvia (on behalf of Baltic States) Mali Malta Mexico Palestine Sierra Leone U.K. | Turkey |