A New Treaty on Crimes Against Humanity

A new international treaty focusing on crimes against humanity such as massacres, torture, and rape is in the works. However, the draft treaty adopts an opaque definition of gender that would give some governments an excuse to ignore persecution of women and LGBTI persons. Most civil society groups are unaware of the treaty and have not weighed in.

Civil society has until December 1, 2018 to provide input on the treaty draft. We're launching a toolkit to provide activists with concrete ways to make their voices heard before the deadline.

Click here to download the Civil Society Toolkit <pdf>

 

Background on the Draft Treaty

Last summer, the International Law Commission, a UN body dedicated to developing international legal standards, completed its first reading of the draft articles for a new convention on crimes against humanity, which members of the General Assembly's Sixth Committee (on legal questions) reviewed in the fall. While the current treaty draft embraces strong language from the Rome Statute, including gender as a protected class from persecution, it also adopts its unusual footnote defining gender.

Two decades of international law have since clarified the broad definition of gender under customary international law, and the opaque "footnote" to the term gender contained in the Rome Statute has become outdated. Strong convention language that complies with existing human rights treaties and customary international law norms would be an invaluable tool for confronting impunity and enhancing state efforts to prevent and punish gender-based crimes. However, a text that does not recognize gender rights could encourage some states to sideline women and other marginalized victims and result in even greater impunity for gender crimes amounting to crimes against humanity. Also at risk is the further concretizing of women's rights as secondary rights, and the exclusion of rights for Lesbian, Gay, Bisexual, Transgender, Intersex, and Queer (LGBTIQ) persons altogether.

 

HRGJ Clinic's Proposed Initiative

The Human Rights and Gender Justice (HRGJ) Clinic of CUNY Law School, MADRE, the Organization for Women's Freedom in Iraq (OWFI), Outright Action International, the Women's International League for Peace and Freedom (WILPF), the NGO Working Group on Women, Peace and Security, and others are working together in a coordinated advocacy strategy and movement-building initiative to address this issue. Together, we seek to seize this pivotal moment in history and affirm the understanding of gender discrimination, including where gender intersects with sexual orientation and gender identity.

Last year with the support of UN WOMEN, this same coalition convened an experts' meeting on gender rights under the Rome Statute and more broadly international criminal law. Participants examined the legal theories and current debates regarding persecution on the grounds of gender discrimination. Moreover, participants discussed provisions and legal precedents which support prosecution of crimes against humanity committed against women and other marginalized persons based on their gender non-conforming behavior.

Building on the meeting held last year, we held a second experts' convening on March 12, 2018 at CUNY Law School. This convening brought together over 30 international and regional experts and scholars in the fields of international criminal law, women, and LGBTI rights. Participants examined the legal theories and current debates regarding criminalization of persecution on the grounds of gender discrimination contained within the new crimes against humanity draft treaty provisions. Moreover, participants built on their legal analysis from the first experts' meeting to develop recommendations on effective strategies for infusing a gender analysis during these final stages of the treaty drafting process and for engaging with international human rights and transitional justice mechanisms to support the protection of gender rights in conflict situations.

Click here to read a report on the outcomes and observations of the most recent experts' convening. <pdf>

 

Where We Stand

In the 1990s, The Human Rights and Gender Justice (HRGJ) Clinic of CUNY Law School, known then as the International Women's Human Rights (IWHR) Clinic, served as secretariat for the Women's Caucus for Gender Justice, a worldwide coalition of women's rights activists working to address gender gaps in the draft Rome Statute. In this role, the Clinic coordinated an effort to ensure the Statute accounted for gender in crimes, procedure, evidence, and International Criminal Court (ICC) composition.

Caucus members provided practical recommendations for addressing gender- based crimes, backed by international law. A socially conservative opposition objected, fearing that the term "gender" would eventually lead to increased protections for women and LGBTIQ persons from discrimination under international human rights law. While only a handful of delegates initially supported activists, momentum started to build and support significantly increased by the time the Rome Conference came about.

Swapping "sex" for "gender" was one of the most important safeguards to happen at Rome. However, it came with an opaque definition: "it is understood that the term 'gender' refers to the two sexes, male and female, within the context of society." No other protected class under persecution has a definition.