Coalition of HRGJ Clinic, MADRE, OutRight International and the Universidad de Los Andes Law School at the Hague

A New Treaty on Crimes Against Humanity

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heard that the new crimes against humanity treaty being drafted by the International Law Commission had adopted the outdated definition of gender from the Rome Statute.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sought to ensure that the draft treaty reflected the progress made since the Rome Conference and not adopt the outdated definition of gender.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.

This is the timeline of how we won the campaign to remove the outdated definition of gender to the draft CAH treaty. But the work is not over. The draft treaty is still slowly making its way through the United Nations.

December 2017

A one-year deadline for draft CAH treaty announced by The International Law Commission

Stage with seating and Lisa Davis presenting to audience with screen slide Queering the CAH TreatyThe International Law Commission announces a one-year deadline for recommendations on the draft CAH treaty. Within days of hearing about the new draft treaty the Coalition is formed. Building on the legacy of the Women’s Caucus for Gender Justice at Rome, the Coalition rallies states, UN and other experts, activists, academics and other key stakeholders from around the world to ensure that the draft treaty reflects the progress made since the Rome Statute.
March 2018

New York Experts Meeting

Lisa Davis discusses the findings in the petition to the ICC at the Prosecuting ISIS Crimes against Women and LGBTI Persons eventOver 30 international experts and scholars on women’s rights, LGBTQI+ rights, and international criminal law come together at CUNY Law School to discuss the draft CAH treaty. They develop recommendations on effective strategies for infusing a gender analysis and engaging with key stakeholders.
April 2018

A Toolkit for Advocates

December 1, 2018 Final Submissions to the International Law Commission (ILC)-New YorkThe HRGJ Clinic publishes a toolkit for advocates on the draft CAH treaty, highlighting the progress made on safeguarding gender justice during the Rome Conference, and concerns with the current language adopted in the draft CAH treaty. The toolkit also guides advocates on how they can make their voices heard in the drafting process. The toolkit is published in English, Spanish, French, and Arabic.
May 2018

New York: International Law Commission Reception

May 2018 International Law Commission Reception, New YorkHRGJ organizes a reception for Members of the Commission to discuss the draft treaty. Chairman, Eduardo Valencia-Ospina and Sean Murphy, Special Rapporteur on crimes against humanity for the Commission, provide opening remarks. Prof. Lisa Davis, Patricia Viseur-Sellers, and Prof. Valerie Oosterveld speak at the event.
June 2018

New York: UN LGBTI Core Group Retreat Session

June 2018 UN LGBTI Core Group Retreat SessionThe LGBTI Core Group, an informal cross-group of the UN member states who work for LGBTQI+ related interests at the UN. The Core Group discusses the work on the treaty thus far and emphasizes the need for coordination of the UN General Assembly (UNGA) 6th Committee once the draft passes from the Commission to the 6th Committee. Prof. Lisa Davis and Jessica Stern lead the discussion and provide an analysis of strengths and weaknesses with the current CAH treaty draft.

London: International criminal law and women’s rights experts meeting

June 2018 Experts Meeting LondonExperts gather at the London School of Economics to discuss the gender provisions of the draft CAH treaty. Prof. Davis provides an overview of the draft. Experts then engage on language recommendations as well as the need to mobilize broader civil society support for the initiative.
July 2018

The Hague: Global LGBTQI+ Activists Intervention

July 2018 LGBTIQ Activist Workshop Session-The Hague

Prof. Lisa Davis and Jessica Stern engage with LGBTQI+ activists who gather from around the world, to analyze the threats, opportunities, strengths, and weaknesses of the draft CAH treaty’s gender provisions and provide feedback on recommendations discussed at previous experts’ workshops.

September 2018

New York: Briefing with UN Member States from the UNGA 6th Committee

Security Council meeting on Maintenance of international peace and security Trafficking in persons in situations of conflict

Prof. Lisa Davis and Jessica Stern organize a briefing with over 20 state representatives working in the 6th Committee on the proposed gender-related provisions in the draft treaty. Representatives also discussed how states can make their own commentaries to the Commission. Prof. Rene Urueña, Patricia Viseur-Sellers also speak at the event.

October 2018

Bogota, Colombia: Convening with Women and LGBTQI+ Rights Activists

October 2018 Reception and Briefing with women and LGBTIQ rights activists, Bogotá.

The HRGJ Clinic co-hosts a briefing with LGBTQI+ and women’s rights activists, along with international human rights and criminal law experts in Bogotá, Colombia to discuss the draft treaty. The meeting is held at the Center for Socio-Legal Research, at the Universidad de Los Andes Law School.

New York: LGBTQI+ Rights Experts Meeting

October 2018 LGBTIQ Rights Experts Meeting-New York

The HRGJ Clinic hosts an meeting that brings together LGBTQI+ experts and allies to CUNY Law School to discuss the outdated gender definition adopted by the draft treaty. Participants examine the gender-related provisions in the treaty and discuss how they can be strengthened to support LGBTQI+ victims.

November 2018

Erbil, Iraq: Meeting with LGBTQI+ and Women’s Rights Activists

Erbil, Iraq: Meeting with LGBTQI+ and Women’s Rights ActivistsMADRE hosts a convening in Erbil, Iraq with women and LGBTQI+ rights activists to discuss gender under the draft treaty. Prof. Lisa Davis and Jessica Stern speak at the event.

New York: Meetings with States

A coalition of men and women listening to Lisa Davis speak on a panel. Lisa Davis is not seen in the photoCoalition members organize a meeting with 29 member states and the European Union from the 3rd and 6th Committees of the UN General Assembly. Members discuss strategies for removing the outdated definition of gender from the draft treaty.
December 2018
February 2019

Final Report of the Commission’s CAH Special Rapporteur

Group of students out between the flags of the countries in front of the UNIn his fourth and final report on the draft CAH treaty, Special Rapporteur Sean Murphy writes that the Rome Statute phrase “within the context of society”, when read in conjunction with article 21(3), provides a broader interpretation than what conservative audiences might suggest. Recognizing that the Commission’s draft articles on CAH do not contain a provision comparable to article 21(3), the Rapporteur recommends the definition be removed. The Rapporteur also notes the civil society submission organized by the Coalition that was signed by 583 NGOs from 103 countries worldwide and the submission authored by Professor Lisa Davis.
May 2019

The Gender Definition is Removed from the CAH Draft Treaty

Lisa Davis on a panel withGambian High Commissioner to the United Kingdom Fatou BensoudaThe International Law Commission Drafting Committee for the CAH Treaty reviews the final report of the Special and votes to finalize the treaty draft, removing the definition of gender. The Drafting Committee Chair states, “international organizations and others considered the definition of gender to be outdated and should be deleted or replaced…. This paragraph was therefore deleted ….”
September 2019

Final Commission Draft and Commentary

Lisa Davis speaking in on stage in Sydney In September 2019, the Commission releases its final report on the draft CAH treaty. The Commission concludes that, “Since the adoption of the Rome Statute, numerous developments in international human rights law and international criminal law have occurred, reflecting the current understanding as to the meaning of the term ‘gender’ [as a social construct].”
October 2019

UN General Assembly 6th Committee Debate on CAH Treaty

UN 6th committeeThe 6th Committee adopts a resolution without a vote to continue the examination of the CAH treaty. Twenty-two states addressed the gender definition in their statements to the 6th Committee, with 15 speaking in support of removing the definition and six speaking in opposition to its removal.
October 2020

UN General Assembly 6th Committee Debate on CAH Treaty

UN 6th committeeIn October 2020, prior to the 6th Committee’s debate on the draft articles of the CAH treaty, the Coalition engages with 6th Committee member states who spoke at the previous year’s debate in support of the Commission’s removal of the gender definition. No states at the debate speak specifically against the Commission’s removal of the gender definition.
September 2021

Prof. Davis Appointed ICC Special Adviser on Gender Persecution

Lisa Davis headshotProfessor Lisa Davis is appointed the first Special Adviser on Gender Persecution to the International Criminal Court.
October 2021

UN General Assembly 6th Committee Debate on CAH Treaty

UN 6th committee

In October 2021, prior to the 6th Committee’s debate on the draft articles of the CAH treaty, Coalition members again contact member states and ask them to continue to support of the Commission’s removal of the gender definition.

December 2021

UNWOMEN and the HRGJ Clinic Gender Persecution Toolkit

a hand holding copy of Identifying Gender Persecution in Conflict and Atrocities toolkit

The HRGJ Clinic and UNWOMEN work together to publish a toolkit for investigators, lawyers, advocates, documenters, first responders and others, entitled “Identifying gender persecution in conflict and atrocities: A toolkit for documenters, investigators, and adjudicators of crimes against humanity”

November 2022

ICC Gender Persecution Policy Launch

Policy on the Crime of Gender Persecution posterAt the request of the ICC prosecutor, Prof. Davis drafts the first policy paper on the crime against humanity of gender persecution for the International Criminal Court.
December 2022

UN General Assembly 6th Committee Debate on CAH Treaty

UN 6th committeeThe 6th Committee adopts a resolution to move the draft crimes against humanity treaty forward – the most significant step forward since the Committee first debated the draft treaty in 2019. After intense negotiations, a resolution is created, outlining a space and timeline for substantive discussion of the treaty, with two interactive sessions planned for April 2023 and April 2024 leading up to a decision on next steps in fall 2024.
April 2023

UN General Assembly 6th Committee Debate on CAH Treaty

UN 6th committee

From April 10-14, 2023, the 6th Committee resumed its session to discuss the draft articles on crimes against humanity. This session announces a call for states comments to be submitted in writing by December 1, 2023 for inclusion in a report from the Secretary General. The Coalition advocates for support of the removal of the gender definition and for the understanding of gender under customary international law reflected in the ICC Gender Persecution Policy Paper.

March 2023

Gender Persecution in Afghanistan

Cover of Volume One: Gender Persecution in Afghanistan: A crime against humanity, featuring a woman wearing a hijab with raised fist.

The HRGJ Clinic and the GLTP Institute launch a report on Gender Persecution in Afghanistan. The report provides in-depth analysis of the Taliban’s acts to deprive Afghans of fundamental rights on the basis of gender — acts that may amount to the crime against humanity of gender persecution.

October – November 2023
December 1, 2023
April 2024
October 2024