How the HRGJ Clinic won Gender Persecution in the Rome Statute
In the 1990’s, the IWHR Clinic served as Secretariat for the Women’s Caucus for Gender Justice (the Caucus) (now called the Women’s Initiative for Gender Justice). Professor Copelon was the founder of and Legal Advisor for the Caucus, which coordinated the effort to ensure the draft Rome Statute of the ICC accounted for gender in crimes, procedure, evidence, and composition of the Court. Copelon and the Caucus also successfully called to replace “sex” for “gender” as a protected ground from persecution.
A socially conservative opposition objected, fearing that the term “gender” would increase protections for women and LGBTQI+ persons from discrimination. While only a handful of delegates initially supported the Caucus, momentum started to build and support significantly increased by the time the Rome Conference came about (where the Rome Statute was drafted). Swapping “sex” for “gender” was one of the most important safeguards to happen at the Rome Conference. 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 and the definition was never used again in any subsequent legal instrument until the CAH treaty was drafted.
Gender in the Crimes Against Humanity Treaty
In December 2017, Professor Lisa Davis of the HRGJ Clinic heard that the new crimes against humanity treaty being drafted by the International Law Commission had adopted the outdated definition of gender from the Rome Statute. Concerned that the new treaty would likely not come with an international court that could apply the legal term of gender consistently with international law, Prof. Davis, pulled together a coalition of organizations and universities. Building on the legacy work of Prof. Copelon and the Caucus, the Coalition sought to ensure that the draft treaty reflected the progress made since the Rome Conference and not adopt the outdated definition of gender.
By December 2018, the Coalition was successful in organizing hundreds of civil society members, states, and UN experts who made their voices heard to the Commission and called for the removal or revision of the definition of gender. In its last and final report on the draft CAH treaty to the UN General Assembly (UNGA), in September 2019, the Commission removed the opaque definition of gender. Shortly after, the Coalition also successfully worked to remove the same outdated definition of gender in the Mutual Legal Assistance Initiative for the Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity, War Crimes, and other International Crimes. In 2021, Lisa Davis was appointed the first Special Adviser on Gender Persecution to the International Criminal Court. In 2022, at the request of the ICC Prosecutor Karim Khan, Professor Davis drafted the first policy on the crime of gender persecution for the Office of the Prosecutor, ensuring the legal understanding of the term gender as codified under international law.