Sex has been weaponized as a tool of war for as long as wars have been waged. Armies have used rape and sexual violence to subjugate and humiliate the populations of their enemies for centuries. This horrendous expression of the depths of human depravity was traditionally considered the inevitable costs of conflict, with the winning army expected to reap the “spoils of war” (Minkova, 2022) which it was generally understood they earned through conquest. While the global community has presumably advanced beyond the idea that rape is an acceptable consequence of conflict, the practice persists to this day in many cases, along with numerous other practices that the majority of the world would purport to condemn. This collective global condemnation of certain human rights abuses, whether in the context of war, or during periods of peace is the basis for International Law. This concept that a global community made up of a collective of disparate and diverse nation states can come together to voice their opinions and reach agreement on standards and rules of conduct is often disparaged as utopian and ineffective. And while these cynical skeptics certainly have many examples of failures to point to in order to advance their narrative that International Law is useless or idealistic, taking the long view of advancements in history, it is hard to argue that there has not been momentous progressive growth. Looking at the full breadth of what makes up International Law today, the traditions of war and oppression are a far cry from the historical expectations of how state actors conduct themselves and depicts a tenuously hopeful picture of incremental, yet sustained progress. But Sexual and Gender-Based Crimes (SGBC) have not advanced on the same trajectory as other crimes. This “silence” (Santos, 2022) surrounding something that is so ubiquitously abhorred is the result of a confluence of factors, but the consequence of this seeming invisibility of an admittedly uncomfortable, complex subject have caused a considerable dearth in accountability for unspeakable crimes. This paper explores the reasons for, and consequences of the international legal community’s failure to adequately address SGBC, as well as the successes of the advocates who have brought the world closer to international awareness and progress on issues surrounding SGBC. Critically, the concept of gender will serve as a theme, pointing to the ways that the notion of a strict gender-binary and traditional views regarding gender roles are at the heart of why we have seen such a lack of advancement in this area. The paper aims to break down where we are today and how further progress can be made to bring international law into the twenty first century.
One might be surprised to learn that SGBC had been so absent from international law discussions until the 1990s. Kelly Askin explains this lack of scholarship thusly, “Women and girls have habitually been sexually violated during wartime, yet even in the twenty-first century, the documents regulating armed conflict either minimally incorporate, inappropriately characterize, or wholly fail to mention these crimes. Until the 1990s, men did the drafting and enforcing of humanitarian law provisions; thus, it was primarily men who neglected to enumerate, condemn, and prosecute these crimes.” (Grey, 2019) Askin points to the homogenous nature of the international legal community, which at the highest professional levels, until the 90s, consisted almost entirely of men. We will look more closely at the efforts to create a greater gender parity in international legal bodies later, but one might still find it odd that SGBC was so neglected until so recently. Considering the fact that “The Lieber Code, drafted to regulate the Union army during the American Civil War, identified rape as a capital offense,” (Irfan, 2018) as far back as 1863, (Grey, 2019) it is odd that this would somehow not even have come up at such a critical moment just a year later. “…sexual violence is not mentioned in the 1864 Geneva Conventions, which aims to ameliorate the suffering of wounded combatants on the battlefield.” (Grey, 2019) Even several years after that at the 1907 Hague Convention in the few instances rape was mentioned, “…it was implicitly so, categorized as an offense against ‘family honor and rights’ or ‘humiliating or degrading treatment’” (Irfan, 2018) not as a brutal violent crime committed against the victim. Up through the Fourth Geneva Convention and the 1977 Protocols to the Geneva Conventions, “the offense was against male dignity and honour, or national or ethnic honour. In this scenario, women were the object of a shaming attack, the property or objects of others, needing protection perhaps, but not the subjects of rights.” (Irfan, 2018) It is this framing that Irfan depicts, that is the basis of the lack of willingness to engage on the issue of SGBC. The international legal community was blinded by a tacit acceptance of the subordination of women that has persisted. “The patriarchal lens through which war and conflict has originally been framed privileged male interests at the expense of women’s, relegating them to the private or domestic realm and thus not worthy of international attention or international prosecution.” (Dowds, 2019) This is only the first instance that points to the need to leave traditional binary gender roles behind as a relic of an unenlightened past. It is this ingrained conceptualization that will repeatedly emerge as the driving force behind the neglect of and even avarice toward addressing these issues.
While the end of World War II brought with it unprecedented progress in the form of the ad hoc Tribunals in Nuremberg and Tokyo, the persistent aversion to engage on SGBC within the international legal community was also incredibly apparent. Despite the well-documented and widespread sexual violence perpetrated across all theatres of war, no charges were brought regarding SGBC and these instances of barbarity (sometimes condoned by leadership) were barely mentioned. As an example, “…the comfort women system, which began in 1932 and was expanded significantly in the Second World War, was authorized at the highest levels and minutely regulated…This ‘comfort’/slave system only came to public attention in the nineties, when aging and courageous survivors began to tell their stories, revealing the details and lifelong devastating effects of their enslavement as well as of their exclusion from the halls of justice.” (Irfan, 2018) This may be in part due to what has been referred to as the “Victors Justice” nature of the Tribunals that was alleged by their detractors, as soldiers on both sides of the conflict engaged in sexual violence to some extent. But while it is possible that the Allies may have had some reason to avoid the subject due to their own alleged culpability, it is more likely that the subject never even came up. Considering that it had rarely been broached in past international legal discussions, it would come as no surprise that the officials deliberating over the parameters of the ad hoc Tribunals operated in the same fashion as their predecessors.
It is not until the 1993 International Criminal Tribunal for the Former Yugoslavia (ICTY) and the 1994 International Criminal Tribunal for Rwanda (ICTR) that SGBC are approached. While there were considerable issues concerning the outcome of these cases in regard to SGBC , these Tribunals were at least willing to have the discussion at all. These Tribunals are also considered to be the progenitors of the International Criminal Court and are thus critical in that regard to the continued progress toward an international legal system that addresses these crimes. But each of these Tribunals were noteworthy in their own right as having taken steps to advance the discussion around SGBC. They ICTY provided the precedent for classifying rape as torture, (Diken, 2005) “…and adopted rules of evidence specifically to prevent harassment and discrimination against victims of sexual violence who witnessed at trial.” (D’Aoust, 2017), while the ICTR provided the precedent for rape as a method for committing genocide, “…in the sense that the intent was to destroy a specific ethnic group” (D’Aoust, 2017). Particularly through the Akayesu case by the ICTR, “the first international conviction for genocide, the first judgement to recognize rape and sexual violence as constitutive acts of genocide, and the first to advance a broad definition of rape as a physical invasion of a sexual nature, freeing it from mechanical descriptions and required penetration of the vagina by the penis.” (Irfan, 2018) The final advancement regarding “freeing [rape] from mechanical descriptions” and ridged definitions has crucial connotations and should be used as a template for updating much of the questionable language used in international legal documents. The language used to describe rape before Akayesu creates multiple problems for advancing law around SGBC. First, it meant that rape could only be charged under incredibly specific circumstances as being exclusively in the context of penile insertion into a vagina. Along with being a violent physical experience, rape is a horrible psychological experience, so the specific body parts involved are entirely irrelevant to the trauma that is experienced by the victim. By decoupling the definition of rape from this specific language, rape can be charged under a wider array of circumstances. Secondly, under the previous definition, rape could inherently only be committed against someone with a vagina, essentially stating that an act only constitutes rape if it was committed against a woman. This is clearly a severely limiting criteria and creates a crime that only some can be the victim of, basically codifying discrimination based on gender. This would seem entirely anathema to the concept of equal treatment. Third, “freeing it from mechanical descriptions” opens the door further to the idea of gender as being understood as a social construct. “…we can learn a lot from using sex as a variable, but only if it is coupled with an understanding of gender as a social process that is more complex than binary and essentialist understandings of sex differences allow’.” (Hodson, 2022) Again, we see an example of how understanding gender as a social construct rather than a strict binary allows for a much more nuanced and comprehensive approach to a variety of subjects.
The ICTY and ICTR were pivotal to the establishment of the ICC and to the adoption of the Rome Statute in 1998. “Referring to the ICC’s establishment, former Prosecutor of the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), Richard Goldstone, declared that ‘gender crimes are now given the recognition they were denied for so many years … It is my hope that the history of impunity for gender crimes under international criminal law will resolutely be replaced in the future by accountability and deterrence and prevention.” (Altunjan, 2021) While we have certainly seen some significant examples of the ICCs commitment to progress regarding SGBC, Goldstone’s optimism was arguably naïve. Looking back, we continue to see advancements in certain areas, but there remain considerable obstacles and frequent setbacks. Goldstone’s most glaringly inaccurate prediction is his hope for accountability. It would be difficult to determine the extent to which deterrence and prevention have occurred, but with regard to accountability, this is one area where it is clear that the ICC has not proven to be successful. A striking example of the Court’s failure in delivering accountability is exemplified in the Bemba case. Initially, this case looked like it would be a major accomplishment for progressing gender justice at the ICC. But the presumed win was to be short-lived. “In March 2016, the International Criminal Court (ICC) rendered a guilty verdict against Jean-Pierre Bemba, ex-President of the Democratic Republic of Congo, for his involvement in operations in the Central African Republic from 2002 to 2004. He was found guilty in his capacity as military commander of crimes against humanity and war crimes. The decision is the first by the ICC to address sexual violence as a weapon of war and in the context of command responsibility.” (D’Aoust, 2017) The phrase “in the context of command responsibility” will become the crucial issue the year after D’Aoust’s article (cited above), was released. In the article D'Aoust states: “The Court found that the material and mental elements of rape were met; the contextual elements for war crimes and crimes against humanity were met; and the elements for command responsibility were met… The importance of the Bemba case resides in its norm-setting potential: domestic and international courts can draw from it to address gendered violence.” (D’Aoust, 2017) The initial decision rested on the “command responsibility” doctrine which “…allows commanders to be convicted of crimes committed by their subordinates when they fail to take all necessary and reasonable measures to prevent, repress or punish their subordinates’ crimes.” (O’Sullivan, 2022) This doctrine is controversial legally as it can be seen to be in contention with the “culpability principle”. “A key question is whether the doctrine undermines the culpability principle and, if it does, whether that weakening of the principle is justified. The culpability principle is a core principle of many criminal law systems which requires that a person must have the requisite mens rea and actus reus to be convicted of a crime. When command responsibility is classed as a mode of liability, it places a strain on the culpability principle.” (O’Sullivan, 2022) The idea behind the choice to proceed with the command responsibility doctrine makes a lot of sense when understanding the facts of the case, considering that Bemba was not physically present for the crimes that his subordinates committed, but with his status as leader, he would reasonably be considered to be responsible for failing to prevent his subordinates from carrying out the atrocities they committed. But the ICC has multiple considerations to make regarding maintaining the courts legitimacy. ICC judges do not want to be viewed as overly punitive or predisposed to not pass fair judgement on defendants. The ICC has routinely been accused of targeting African leaders to a significantly greater extent than any other region. The accusation is clearly not entirely absurd, considering the numerous examples of African leaders that the Court has prosecuted, contrasted with the considerably fewer examples from anywhere else. For this and other reasons, the Court is vigilant in its desire to remain a neutral arbiter of justice and to avoid the appearance of impropriety or bias. Problematically, since SGBC charges are so abhorrent, applying the command responsibility doctrine to a SGBC case both places the doctrine in conflict with the culpability principle while using it to imply culpability. “While gender justice does not negate the culpability principle, the difficulties of investigating such crimes often require a broad interpretation of the notion of ‘culpable conduct.’ From this perspective, concerns for ‘over-inculpat[ing]’ the defendant should be balanced with the interests of SGBC victims.” (Minkova, 2022) The appellate decision to overturn Bemba’s rape conviction based on command responsibility doctrine was a devastating blow to gender justice advocates and now establishes more precedent for impunity in SGBC cases against leaders.
But even before it was overturned, D'Aoust’s 2017 article bemoans the fact that, “the case remains a product of problematic international norms based on ‘masculine assumptions that do not take into account global systematic gender inequality’. International law is based on an approach where the norm of the system is male, with special provisions made for women…a good opportunity has been missed by judges in the Bemba decision to elaborate on the phrase ‘sexual violence’ used in the Rome Statute. Sexual violence is intimately linked to gender inequality.” (D’Aoust, 2017) The author goes on to argue that the very definition of rape was once again under scrutiny as being overly “mechanical”. “Bemba brings back the mechanical descriptions that constitute the threshold for rape. The Court states that the material elements of rape (actus reas) require an invasion of the body consisting of penetration of anywhere with a sexual organ, or anal or genital penetration with an object or other body part.” (D’Aoust, 2017) This is arguably a marked improvement over the definition that Akayesu disposed of in order to obtain the rape conviction in that case, but we are again confronted with frustratingly “mechanical” language. By defining rape in such specific language, the Court is again limiting what it has the capacity to prosecute and relegates the traumatic and uniquely psychologically scarring experiences of the victims as secondary to the ridged definition the Court has deemed viable to constitute rape. It would seem dispassionate to the degree it becomes cruel to allow legal scholars to delineate the experiences of traumatized victims. As D’Aoust and others have suggested, the term rape may simply be outdated in its apparent requirement for such specific qualifications. If language like simply, “sexual violence” were used instead – with the standards of accountability for, and consequences of the charge remaining the same – some of these issues could be avoided and more victims would have recourse to bring cases against their perpetrators. These specifics go beyond merely semantic arguments when viewed through the eyes of the victim; the language chosen bears considerable impact on the strength of cases and the ability for victims to seek justice.
In regard to the command responsibility doctrine, O’Sullivan argues that the conflict with the culpability principle could be somewhat ameliorated by “reclassifying command responsibility as a separate offense [which] would uphold the culpability principle, clarify the doctrine’s foundational elements, and provide it with an adequate scope. It would also satisfy the key rationales advanced to justify weakening the culpability principle and bring the dual role of international criminal courts into greater harmony.” (O’Sullivan, 2022) The change proposed would likely have allowed the Court to remain confident in their initial verdict. While it may seem like simply a procedural change, the legal mechanisms can clearly have critical repercussions for victims, as well as for the Courts track record on achieving accountability. Despite the disappointing nature of the appeal overturning Bembas conviction from a gender justice standpoint, it is important to remember that “…because of its criminal justice function, the ICC must show ‘full respect’ for the rights of the accused. This emphasis on the rights of the accused is essential to the ICC’s fairness and its legitimacy, but it means that the interests of the victims will not always prevail.” (Grey, 2019) This is certainly how the Bemba case ended up, but the ICC endeavored to retain its legitimacy by sacrificing its record on accountability. The Court is only as effective as a legitimate body with a record of fairness, so it must carefully balance its adjudications with an eye toward maintaining the perception of legitimacy.
The Bemba case was less relevant to the concept of moving beyond the ridged gender binary and traditional gender norms, but by pointing to the struggles the Court has with deciding the appropriate language to use and considering that we have seen language change when deemed necessary, it suggests that such a change is possible. When the ICC Statute was being drafted, feminist advocates for gender justice began to understand that gender issues would be sidelined, these advocates formed the Women’s Caucus for Gender Justice in the International Criminal Court. The Women’s Caucus became one of the primary organizations that successfully fought to get language changed and procedure altered to better suit the standards of gender justice advocates. “The Women’s Caucus successfully recommended an expansion of the list of sexual and gender-based crimes. It also succeeded in detaching sexual crimes from ‘outrages upon personal dignity’, thus abandoning the problematic notion that sexual crimes violate the victim’s ‘honor’.” (Altunjan, 2021) This once again points to the archaic and male-centric perspective from which international law has consistently proven to base its decisions. The idea that sexual crimes are primarily a crime against ‘honor’ completely ignores the experience of the victim and instead emphasizes the “shame” aspect of having a sexual crime committed against them. It plays directly into the ideas around sexual violence that prevent victims from coming forward and promotes the impunity of perpetrators. By suggesting that one’s ‘honor’ is threatened by sexual violence it relegates the victims of sexual violence into essentially being merely an object that can be tarnished. SGBC are violent, physically and psychologically traumatic crimes against a person, and to suggest that ‘honor’ plays any role in the experience of the victim is blatantly implying that to be raped results in a loss of honor. Diken explores the concept of victims of sexual violence becoming what he terms “abject”: “The physical damage caused by rape can be considerable. However, the trauma of rape may, for some, be even worse than bodily harm… The rape victim often perceives herself as an abject, as a ‘dirty’, morally inferior person. The penetration inflicts on her body and her self a mark, a stigma which cannot be effaced. But abjection has a communal aspect as well: the victim is excluded by neighbors and by family members. Hence the rape victim suffers twice: first by being raped and second by being condemned by a patriarchal community.” (Diken, 2005) By suggesting that ‘honor’ is at stake in the case of sexual violence, the Court was writing into law what Diken states as the second suffering of a victim of rape. With this language the Court itself has committed half the crime. To write into the language of a document, the expressed purpose of which is to achieve justice in the most egregious cases, wording that instead places the blame on the victim of a crime would seem anathema to its purpose. It is due to the institutionalized and deep-seated biases inherited by the international legal community that such grievous oversights are allowed to persist. Louise Chappell has referred to these institutionalized, deep-seated inherited biases as “gender legacies” (Grey, 2019). Minkova similarly suggests: “The ‘nestedness’ of new institutions, such as the ICC, into pre-existing practices profoundly impacts the possibilities of delivering gender justice. Largely the creation of Western powerful men, international law has for long silenced women’s voices. This has enabled the incorporation of discriminatory gender norms into the interpretation of seemingly impartial laws, which seek to protect men and women equally, but fail to recognize the peculiar experiences of different groups during conflicts.” (Minkova, 2022) The suggestion of “seemingly impartial laws” hearkens back to the appeal in the Bemba case putting the emphasis on maintaining the perception of legitimacy in contrast to achieving accountability and seeking justice for the victim. While the Courts legitimacy is admittedly tenuous, the argument for being overly invested in legitimacy at the cost of achieving justice for victims may have the reverse effect. This consent could lead to rendering the Court illegitimate by the standards of those who are denied justice in the Courts effort to be perceived as protecting defendants rights.
This leads to another way the Women’s Caucus has pushed the Court in a progressive direction, but where further advancement is needed. “…the need for gender-sensitive protective measures for women victims and witnesses and reliable support to minimize the risks and potential retraumatization of testifying.” (Irfan, 2018) Over the course of the Court’s history, and for that matter, all legal history, the questioning of witnesses in court and the general treatment they receive from legal institutions is a very delicate matter. Especially in cases concerning trauma, the systems by which witnesses are handled need to be very carefully mediated. This is delicate not only in regard to protecting the victim from retraumatization, but as far as maintaining the courts legitimacy and maintaining ethical legal standards. The Court must maintain its standards for achieving justice and balancing the rights of the accused with the rights and well-being of the victim. The most common situation where this becomes an issue is during the defense counsel’s questioning of the victim and the choices of defense presented. This has several times become an issue before the ICC. “In Furundzija, the defense questioned the credibility of the raped woman on the ground that she suffered post-traumatic stress disorder (PTSD)” (Irfan, 2018) Fortunately, “…the chamber rejected the defense contention that PTSD renders a victim unreliable.” (Irfan, 2018) But the fact that this was levied as a defense would be laughable were it not so ghoulish. This defense is essentially suggesting that due to the crime being committed, and the victim being traumatized by the crime, the victim is not credible to accuse the defendant of the crime. The preposterously circular victim-blaming logic required to mount such a defense is evidence that procedures around protecting victims from retraumatization are absolutely necessary and there must be experts in trauma and the experiences of victims monitoring these cases in order to prevent such cruel tactics from being attempted. Another example occurred in the Celebici case where, “the defense was inadvertently allowed to circumvent Rule 96 (prohibiting the introduction of prior sexual conduct evidence) in questioning the witness about a prior abortion. The chamber reaffirmed the rule upon a motion to expunge the testimony from the record.” (Irfan, 2018) But despite the expunging of the testimony from the record, the harm to the victim had already been done and cannot be remedied, aside from the harm to the victim’s case in court. Such oversights in the proceedings of a court are certainly possible and could very well have been merely a fluke, but such a dramatic mistake as allowing a rule to be broken and a victim impugned as a result is a serious issue. Obviously, not all mistakes can be prevented, but a mistake such as this must be prepared for and again, speaks to the idea that experts on these issues must be involved at all levels and stages of the process in order to ensure the safety of the vulnerable victims and witnesses. “Perhaps someday the integration of and respect for gender expertise will become routine, dispensing with the need for continued monitoring by feminist attorneys and activists. That day is still far off.” (Irfan, 2018)
As Irfan states, we are a long way from the Court functioning with gender justice in mind, but some truly progressive steps are being taken on many issues, via many avenues. Returning to the discussion around the concept of establishing gender as a social construction and moving beyond the gender binary and traditional views on gender roles, LGBTQ advocates are making progressive strides hand-in-hand with feminist activists. “Recently, many global institutions have come to acknowledge gender diversity, and specifically gender identity – an individual’s deeply personal experience of gender that may or may not correspond with their sex assigned at birth – as integral to individual dignity and common humanity.” (O’Connor, 2022) This has become an increasingly contentious topic, with religious and conservative activists hell-bent on preventing any advancements on the subject of sexual orientation and gender identity (SOGI). But the movement to obtain internationally recognized rights for the LGBTQ began in earnest in the mid 1990s following the HIV/Aids epidemic which had rocked the whole world, but particularly the LGBTQ community. In the 1994 conference in Cairo and the 1995 World Conference on Women in Beijing, sexual and reproductive health and rights (SRHR) was the agenda being advanced under the moniker of the “Women’s Platform”. This platform aimed to advance rights such as “the importance of the enjoyment by women of the highest standard of physical and mental health throughout their life span,” and “the basic right of all couples and individuals to decide freely and responsibly the number, spacing, and timing of their children.” (O’Connor, 2022) It was not until the Beijing conference that intersectionality – the analytical framework developed by Kimberly Crenshaw in 1989 – began to appear between the Women’s Caucus and LGBTQ advocates. The conference in Beijing affirmed “the human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence.” (O’Connor, 2022) This was one of the first times sexuality was discussed at an international legal conference in a way that accepted the idea of rights for sexuality in any meaningful way. While it does not explicitly broach the subject of sexual orientation, the language leaves the door open for interpretations surrounding SOGI concepts. And that door needs to continue to be widened, if not ripped off its hinges entirely, going forward. “As the SOGI movement’s influence continued to grow, the term ‘sexual rights’ – which had failed to secure recognition at the UN during the Cairo and Beijing conferences – was further legitimized within the human rights community following its 2004 use by the UN Special Rapporteur on the right to health.” (O’Connor, 2022) The LGBTQ community faces incredible opposition across the world from its detractors which are primarily religious and conservative groups. Regularly, these arguments within international bodies invoke coming together of the unusual bedfellows including Islamic nation states that follow Sharia law, with the Holy See. This remarkable partnership between conservative religious nations of all persuasions comes together whenever sexuality or gender norms are questioned in international bodies. It is also this conglomeration around rejection of an expansion of rights that brings together the women’s movement advocates with the LGBTQ movement advocates. The conservative religious conglomerate’s refusal to recognize any advancement on women’s reproductive rights or the overturning of traditional gender roles forces the Women’s Caucus into alliance with the LGBTQ movement whether they liked it or not. This conservative religious rejection of progress in the court creates alliances against this regressive, status quo caucus. The coalition of women and LGBTQ advocates creates a formidable alliance considering the overwhelming numbers that it engenders. The only problem, despite the essentially majority status this creates in terms of global population, is that this coalition historically lacks power, which is partly why the conservative status quo coalition is so aggressive about stamping out any progress on diversifying the halls of power and justice.
Further advancements of SOGI came with the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity. “Adopted by a group of experts in 2006, these principles affirm international human rights standards. The Yogyakarta definitions incorporate both western and indigenous identities, and accurately distinguish between gender and sex. Their legal relevance to the ICC is through Article 21(3) of the Rome Statute, which requires that the application and interpretation of the law be consistent with internationally recognized human rights and without adverse distinction on grounds such as gender, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.” (Leddy, 2022) The Yogyakarta Principles are the most inclusive and intersectional international legal document to date and could stand as the basis for increasing developments going forward. The definitions these principles provide regarding sexual orientation and gender identity serve as a new way to have frank and informed discussion on these topics, instead of the previous international legal standard of either pathologizing or entirely neglecting to truly address these subjects. The Preamble to the Principles defines sexual orientation as, “… each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.” They define gender identity as, “… each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.” (Leddy, 2022) While these definitions are clearly a stark departure from the non-definitions or circular definitions presented in the established literature used in international law generally, they present a far more accepting and intersectionally progressive framework on which to advance the international legal system beyond its entrenched conservative, patriarchal roots. And while the international community has often shown itself to be historically slow to accept change on issues that have been deemed taboo by the patriarchial status quo, progress persists. Just as one example, “In 2012, one ICC Trial Chamber found that Article 21(3) prohibited adverse distinction on the basis of sexual orientation, thereby confirming that international human rights law supports sexual orientation and gender identity as protected grounds to be considered when interpreting and applying the Rome Statute and the Elements of Crimes.” (Leddy, 2022) Someone familiar with the definition of gender in the Rome Statute might suggest that the adopted definition would not be open to the concept of gender as a social construct considering its wording: “For the purposes of this Statute, it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above.” (UN, 2001) Upon initially reading this definition as it is constructed, it is difficult to see any wiggle-room that would allow for expansion of discussions on gender as a social construct and certainly the rejection of the gender binary. But notice the phrase “… within the context of society.” Leddy pushes that door wide open with his contention that: “Article 7(3) of the Rome Statute includes the understanding that gender is a social construct… ‘…within the context of society’ demonstrates that gender is a social construct under the Rome Statute – otherwise the phrase would have no meaning.” (Leddy, 2022) The 2014 OTP Policy Paper on Sexual and Gender-Based Crimes supports this contention when it states: “’gender’, in accordance with article 7(3) of the Rome Statute… refers to males and females, within the context of society. This definition acknowledges the social construction of gender, and the accompanying roles, behaviours, activities, and attributes assigned to women and men, and to girls and boys.” And yet further still, the International Committee of the Red Cross (ICRC) “recognizes that ‘gender’ refers to the culturally expected behaviour of people based on roles, attitude and values ascribed to them on the basis of their sex, whereas ‘sex’ refers to biological and physical characteristics.” (Leddy, 2022)
These three definitions, viewed together, serve as a giant leap forward in the international legal community’s conception of gender and sex. When recognized in conjunction, the Rome Statute, the ICRC, and the OTP’s definitions regarding gender and sex, successfully distinguish sex from gender but without separating their relationship to one another. With the Yogyakarta Principles, the international community is beginning to see cracks in the institutionalized, entrenched, conservative and patriarchal status quo that has prevented so much progress from occurring in the past. These advancements allow the Court to begin to “advance the rights of women and girls around the world, noting the importance of synergistic movements to eradicate gender-based discrimination for all human beings, regardless of their gender identity, expression, or sex characteristics.” (O’Connor, 2022) While we remain a ways off from an ICC that aggressively advocates for the rights of all without deference to the gender binary or traditional gender roles, while still acknowledging that they exist and have an impact on people who live under their yoke, there is hope that this could one day be realized.
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