Editor’s note: This is part of our series on gender in the draft crimes against humanity treaty.
In the 25 years since the Rome Statute’s adoption, there has been significant progress in the international community’s understanding of sexual and gender-based crimes and notions of gender — including, for example, the first final conviction for sexual and gender-based crimes in Ntaganda at the International Criminal Court (ICC), the Colombian Truth Commission’s finding that forced contraception and abortion constitute reproductive violence in the Colombian conflict, and the ICC, Special Court for Sierra Leone, and Extraordinary Chambers in the Courts of Cambodia’s findings that forced marriage is a crime against humanity under the category of “other inhumane acts.”
United Nations Member States, currently considering draft articles from the International Law Commission (ILC) as the basis for a treaty on crimes against humanity, now have a historic opportunity to take a gender-competent, survivor-centric, and intersectional approach to the potential new treaty, and reflect the achievements and essential lessons learned over the last quarter century. In early October, a coalition of more than 80 international NGOs, international law practitioners, academics, activists, and experts sent a joint letter to U.N. Member States, urging them to do just that. If enacted, the treaty would fill a gap in the existing international legal regime by requiring states to prevent and punish crimes against humanity.
In addition, much like how the horrific facts of Bosnia and Rwanda brought forced pregnancy to the fore in the years leading up to the Rome Statute, galvanizing States to explicitly criminalize forced pregnancy as a crime against humanity and war crime, States should use this moment to codify crimes that are unfolding in the world today — including gender apartheid currently being perpetrated against women in Afghanistan and the slave trade being committed against migrants in Libya.
Last November, the U.N.’s legal committee established a two-year process for U.N. Member States to debate and discuss the draft articles and the ILC’s recommendation that a crimes against humanity treaty be elaborated on the basis of the draft articles.
As part of this process, States met for a week in April 2023 to discuss the substantive provisions of the draft articles, where the theme of gender arose repeatedly, with many States indicating support for progressive development in gendered aspects of the draft articles. Most recently, on Oct. 11 and 12, the U.N.’s legal committee held their general debate on crimes against humanity, where there was an observable increase in support for the treaty from years prior. Up next, States have the opportunity to provide written comments on the draft articles by Dec. 1, 2023, and a second week-long session to discuss the substance of the draft articles will take place in April 2024.
Progressive development of the law is already reflected in certain aspects of the draft articles, such as the ILC’s exclusion of the Rome Statute’s limited definition of the term “gender,” in recognition of “developments in international human rights law and international criminal law” that reflect “the current understanding as to the meaning of the term ‘gender.’”
International legal subject-matter experts and activists have developed legal briefs demonstrating a number of ways in which States can put a progressive approach into practice in the draft articles, including by improving the protections against reproductive violence, enumerating the slave trade (already a jus cogens norm), codifying gender apartheid as an international crime, including forced marriage as a specifically enumerated crime, and expanding protections for victims and survivors. In this Just Security series, leading experts in the relevant fields will further expand on these topics.
A strong, progressive crimes against humanity treaty should also include a non-discrimination provision anchoring the obligation to apply and interpret the treaty’s provisions in a manner consistent with international human rights law and provide for a treaty body monitoring mechanism to promote implementation of the treaty, advance progressive interpretation of the text, and monitor progress on gender justice in the treaty. The treaty-development process must also itself be inclusive, ensuring robust participation by women and gender minorities in States’ delegations and that victims and survivors are empowered to meaningfully participate at all stages of the process.
Civil society is calling on States to use this unique and powerful opportunity to combat impunity and codify progressive standards of international law, as well as to redress gaps and regressive political compromises in the law. States should listen by applying a gender-competent, survivor-centric, and intersectional lens to a new convention on crimes against humanity.