(Editor’s note: This article is part of our series on gender in the draft crimes against humanity treaty.)
United Nations member States meeting a year-end deadline to submit written comments on the draft treaty on crimes against humanity signaled support for strengthening its provisions for gender justice. The comments, just published, build on the backing demonstrated by States during last April’s resumed session of the U.N. General Assembly’s legal committee.
Thirty written comments were submitted, including a submission by the European Union, a joint submission by the Nordic countries (Denmark, Finland, Iceland, Norway, and Sweden), and 28 individual State submissions. Of the 30 submissions, 17 submissions (57 percent) mention at least one gender-related issue.
Many of the comments reinforce recommendations made by a collection of human rights organizations and international law experts in a joint letter and accompanying series of legal briefs published in October and November. They advocated for U.N. member States to take an approach to the treaty that integrates a gender perspective throughout, strengthens protections for victims and survivors and ensures their meaningful participation in the treaty-making process, and guarantees that the treaty’s provisions are interpreted in a non-discriminatory manner. These include recommendations to exclude a regressive definition of gender, codify the crime of gender apartheid, identify the slave trade and forced marriage as crimes against humanity, strengthen protections against reproductive violence, and maintain a focus on victims and survivors.
The following highlights comments from States that were particularly strong on each of these topics.
Australia, Mexico, and Spain made strong statements in their comments about the importance of considering and integrating gender in the treaty (bold emphasis added):
“Australia is committed to gender equality and the human rights of all women and girls. We consider that any future negotiations on a CAH Convention would benefit from a gender mainstreaming approach to the text as a whole.”
“In general, it will be important to strengthen the gender perspective, and the rights of victims and survivors.”
“Spain … support[s] the integration of a gender perspective in the draft articles, including in the definition of some crimes, as is already the case in draft article 2, paragraph 1 (h). This should be done in line with the social context, facilitating the prosecution of crimes committed on such grounds and strengthening the protection of victims.” (paras 4-5)
Excluding a Regressive Definition of Gender
Fourteen submissions strongly advocated for excluding a regressive definition of gender, such as that used in the Rome Statute of the International Criminal Court (Argentina, Australia, Belgium, Brazil, Canada, Colombia, Malta, Mexico, the Netherlands, New Zealand, the Nordic countries, Portugal, the United Kingdom, the United States).
Civil society organizations have long noted that the Rome Statute’s definition of gender (“the two sexes, male and female, within the context of society”) is opaque and difficult to understand, and international law’s understanding of gender has come a long way since 1998. In 2018, more than 580 civil society organizations urged ILC members to remove the definition of gender from the crimes against humanity draft articles and instead leave it up to States to utilize their own definition of the term, which the ILC did.
“Once again, we reiterate our support for the ILC’s choice not to include the definition of the term “gender”, as the concept continues to evolve, and its understanding may vary from state to state.”
“Malta agrees with this change brought forward by the ILC, ensuring that the regressive definition of “gender” from the Rome Statute remains excluded.”
Identifying Forced Marriage as a Crime Against Humanity
The comments of Australia, Brazil, Canada, Mexico, and the United Kingdom referenced the concept that forced marriage should be specifically listed as a crime against humanity in the definitions of crimes in the draft articles.
“At the same time, there are gender aspects of the draft articles that might deserve further elaboration in a future convention. Important as it is to classify rape, sexual slavery, enforced prostitution, forced pregnancy, and enforced sterilization as crimes against humanity, these conducts do not exhaust all forms of sexual and gender-based violence of such gravity as that of a crime against humanity. It would be desirable to specify as much as possible, in light of the principle of strict legality that guides criminal law, other forms of sexual and gender-based violence of comparable gravity, especially if conducts of such nature not expressly referred to in the draft articles have already been identified in jurisprudence.
This is the case, for example, of forced marriage, considered an inhumane criminal conduct by the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the International Criminal Court (ICC). As properly spelled out in the ICC’s Appeals Judgment in the Ongwen case, the concept of forced marriage may be understood as the recourse to physical or psychological force, or threat of force, or to a repressive environment to coerce someone into a conjugal union.”
“There is room for this draft article and, in general, the whole set of draft articles to be strengthened. In that regard, Mexico considers that, in future negotiations, it would be appropriate to analyse other aspects and new crimes such as slave trafficking, forced marriage and gender apartheid.”
Codifying Gender Apartheid as an International Crime
Afghanistan, Australia, Brazil, Malta, Mexico, and the United States referenced the possibility of codifying gender apartheid in the draft treaty.
The crime of gender apartheid has received recent public attention in the context of the Taliban’s crimes against women in Afghanistan. Former U.S. Secretary of State Hillary Clinton and Nobel Peace Prize Laureates Shirin Ebadi, Nadia Murad, and Narges Mohammadi were among those who recently signed on to a brief calling for the draft treaty to codify the crime of gender apartheid.
“[S]hould there be a broad support in favour of amending the ILC draft articles, Malta considers that States should have a broad discussion on whether the definition of apartheid in Article 2 (h) should more accurately define the essence of a crime perpetrated by those who seek to institute and maintain a form of governance designed to systemically oppress and dominate a subset of society, including when based on gender.
The crime of apartheid should be broadened to include inhumane acts committed in the context of an institutionalized regime of systematic oppression and domination by one gender group over another gender group or groups and committed with the intention of maintaining that regime.
Malta therefore proposes the following amendment (in underline) [sic] to the definition of the “crime of apartheid”, contained in Article 2(2)(h) of the draft articles: “the crime of apartheid” means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups, or by one gender group over another gender group or groups, and committed with the intention of maintaining that regime.
The codification of the crime of gender apartheid will enable victims and survivors – present and future – to hold perpetrators to account for the totality of crimes committed by systematized oppression which the crime of gender persecution alone cannot and does not capture.”
“A future convention might also benefit from expressly criminalizing inhumane acts committed in the context of an institutionalized regime of deliberate, systematic and complete subjugation of an entire social group based on their gender, depriving it from fundamental rights, including the possibility to partake of the public sphere free from oppression, in a manner contrary to international law. For comparison purposes, when it comes to racial discrimination, the draft articles already provide for the punishment of a systematic subjugation of the same intensity through the crime of apartheid.”
Improving Protections Against Reproductive Violence
Comments from Brazil, Canada, the Nordic countries, and the United Kingdom supported improving protections against reproductive violence.
“The same goes for manifestations of reproductive violence of similar gravity as that of forced pregnancy and enforced sterilization. As much as forcibly impregnating and coercing someone to reproduce, the systematic denial of the right to procreate by means of forced abortion or contraception is contrary to the core values of humankind, and thus amounts to a serious crime of international law. In this respect, it is worth noting that the Constitutional Court of Colombia considered forced abortion and forced contraception as war crimes.”
“Furthermore, we are of the view that the protection provided by draft [Article 2] subparagraph (g) [which defines as crimes against humanity “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity”] could be expanded to include acts that violate the sexual integrity of a person and not only acts of a sexual nature, to which the ICC Elements of Crimes refer when mention is made of “any other form of sexual violence” as included in the corresponding article in the Rome Statute. Consideration could also be given to including “reproductive violence”, which would encompass other comparable serious violations that would not otherwise be included in the scope of this definition.”
“Particularly, Canada is of the opinion that a person’s gender does not necessarily indicate whether that person has the capacity to become pregnant, and would therefore suggest replacing the term “woman” by a more gender-neutral one to broaden the protection provided by this draft subparagraph on forced pregnancy to all potential victims. Furthermore, we recommend removing the last part of the draft subparagraph referring to impacts on national laws; this is not relevant in the context of a horizontal treaty, contrary to the compromise sought during the elaboration of the Rome Statute.”
Including the Slave Trade as a Crime Against Humanity
In their submissions, Australia, Brazil, and Mexico noted positively the idea of including the slave trade as a specifically enumerated crime against humanity in the definition of crimes of the draft articles.
“Brazil would favor the inclusion in the list of crimes against humanity, alongside enslavement in paragraph 1 (c), of slave trade, understood as the abduction, kidnapping, acquisition or disposal of any person, regardless of, inter alia, age, race, gender, migration, refugee or statelessness status for the purpose of reducing them to or maintaining them in any form of enslavement.”
“In this context, Australia acknowledges and is engaging with, for example (and without prejudice to its future positions on these), proposals by States and civil society organisations to include the slave trade and forced marriage as crimes against humanity, and the proposal to include the crime against humanity of ‘persecution’ as a standalone crime.”
Strengthening Victim/Survivor Protections
Seventeen submissions made positive comments about strengthening the victim/survivor provisions in the draft treaty (Argentina, Australia, Belgium, Brazil, Canada, Colombia, the EU, Liechtenstein, Malta, Mexico, the Netherlands, New Zealand, the Nordic countries, Portugal, Spain, the United Kingdom, and the United States).
“The Nordic countries welcome Article 12, which addresses the rights of victims, witnesses and other persons affected by the commission of a crime against humanity. We reiterate that victims and survivors are at the heart of international criminal justice today and welcome, in this regard, that Article 12 covers many essential elements on victim and witness rights and participation. This is in line with a survivor-centered approach, based on the agency and rights of the individuals involved. Victims and survivors of the most serious international crimes, such as crimes against humanity, have a right to reparation for the harm they have suffered. The Nordic countries welcome the comprehensive concept of reparation included in Article 12, which rightly reflects the evolution in international human rights law on this matter. We welcome paragraph 3 and the non-exhaustive list of forms of reparation, which include, but are not limited to, restitution, compensation, satisfaction, rehabilitation, cessation and guarantees of non-repetition.”
“However, when crimes against humanity do occur, we must listen and respond appropriately to victims and survivors. It is important to engage with, and respond to, the needs of victims and survivors, as accountability in their eyes may be broader than criminal proceedings. The absence of a crimes against humanity framework fails to give the victims and survivors of such crimes the recognition and redress they deserve. For justice to be delivered, it is important that victims, survivors and witnesses be empowered to have their voices heard in proceedings. We must try to reduce the barriers that these people face when seeking justice, notably retraumatisation, reprisals, stigma and rejection.”
States will have another opportunity to signal their support for gender considerations in the treaty during an upcoming weeklong session of the U.N. General Assembly’s legal committee in April 2024. A decision on the next steps for the draft articles will then be made by the U.N. General Assembly’s legal committee in October 2024 (more details on the process can be found in this recent Global Justice Center toolkit).
(Note: The author has updated this article to clarify the description of the Rome Statute’s definition of gender in the 10th paragraph.)