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Valerie Oosterveld[*]
| I. Including “Gender” in the Rome Statute: The Negotiation History |
| II. United Nations Approach to Defining “Gender” |
| III. Criticism of the Rome Statute’s Definition of “Gender” |
| IV. Conclusion |
In 1998, the term “gender” was used and defined for the first time in an international criminal law treaty, the Rome Statute of the International Criminal Court (“ICC”).[1] Will the definition help or hinder the ICC in its work? More generally, does the definition advance, or narrow, the way international law understands “gender”? The use of the term “gender” in the Rome Statute is generally viewed as positive for international criminal law, as it mirrors the increasingly common use of the term in international human rights law over the past decade. However, opinions vary widely about the defini-tion of “gender” adopted in the Rome Statute, and include some sharp criticism. Some describe it as “stunningly narrow,”[2] a “failure,”[3] “puzzling and
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bizarre,”[4] “peculiar,”[5] “restraining,”[6] and having “limited transformative edge.”[7] Others claim that it wrongfully “elides the notions of ‘gender’ and ‘sex,’”[8] making “gender” mean the same as biological “sex” and therefore not recognizing that “gender is a constructed and contingent set of assumptions about female and male roles.”[9] One United Nations Special Rapporteur describes the definition as “prevent[ing] approaches that rely on the social construction of gender.”[10] Some commentators view the definition more positively, characterizing it as “consistent with other, more clearly stated formulations” adopted within the United Nations.[11]
The strongly negative reactions are not surprising. Article 7(3) of the Rome Statute provides the following definition of “gender”: “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.”[12] This oddly worded and circular provision emerged from difficult and highly contentious negotiations in which the term “gender” served as a lightning rod for conservative concerns about sexuality, unlike other terms such as “political,” “racial,” “na-
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tional,” “ethnic,” “cultural,” “religious,” “age,” “wealth,” and “birth” included in the broad lists of prohibited grounds of persecution and discrimination.[13] The definition sharply reflected the use of “constructive ambiguity” by the negotiators.[14] The critics are concerned because the word “gender” occurs nine times in the Rome Statute, in key articles on crimes against humanity,[15] applicable law,[16] the office of the Prosecutor,[17] the duties and powers of the Prosecutor with respect to investigations,[18] and the protection of victims and witnesses as well as their participation in proceedings.[19] How the ICC interprets “gender” will have a direct impact on the kinds of cases of persecution that the Court may be able to prosecute, as well as on the law applied, on how the Prosecutor undertakes his/her duties, and on the protection and participation of victims and witnesses. It could also profoundly affect the legal construction of “gender” under international law.
This Article begins with an examination of the negotiation process that led to the adoption of the definition of “gender” in the Rome Statute, in which the author took an active part. Part II then surveys definitions of “gender” used by the United Nations in the areas of international human rights and refugee law. Part III examines four concerns raised by commentators regarding the Rome Statute’s definition of “gender.” The first concern is that the direct linkage in the definition of the term “gender” with the term “sex” seems to conflate the two. Some commentators fear that the ICC defini-tion equates “gender” with biologically determined “sex,” thereby eliminating the understanding that “gender” is a social construct. The second concern is that the phrase “within the context of society” diverges from references to socially constructed roles found in United Nations documents. The U.N. definitions are more detailed and tend to interpret social construction broadly to include an examination of attitudes, values, responsibilities, opportunities, and relationships between and among women and men, while acknowledging the influence of culture, political and economic context, class, race, ethnicity, poverty level, sexual orientation, and age. The ICC’s stark reference to “context of society” therefore raises the question whether the ICC has a much more limited understanding of social construction. The third concern is that the negotiating history and the statement “the term ‘gender’ does not indicate any meaning different from the above” could be interpreted to exclude sexual orientation from falling within the definition of “gender.” Such a construction would thereby eliminate persecution conducted on the basis of sexual orientation as a crime against humanity, per
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mitting discrimination on the basis of sexual orientation in the ICC’s interpretation and application of law, and excluding the ICC from considering sexual orientation when addressing the needs of victims and witnesses. The final concern stems from the fact that “gender” is the only term defined in the context of the crime against humanity of persecution. Some commentators thus fear that the singling out of “gender” for definition, and the lack of clarity in that definition, will leave the ICC in a weaker position to prosecute and convict gender-based persecution as compared to other forms of persecution.
This Article concludes in Part IV by arguing that the critics are overly harsh. Admittedly, the drafters missed a key opportunity to adopt a clear and visionary approach to “gender” in the text of the Rome Statute. However, the critics have overlooked the fact that there were few better alternatives likely to emerge from the negotiations. More importantly, they have not recognized that by resorting to the use of “constructive ambiguity,” the drafters did leave open opportunities for a positive and precedent-setting approach—an opportunity that should be seized upon by lawyers and the ICC itself. Those interpreting “gender” should be guided by key signals in the Rome Statute and international law indicating that “gender” is to be understood broadly as a multifaceted, complex, and socially constructed category. In addition, those interpreting “gender” should refer to international legal theory on gender-sensitivity. Given that there has been relatively little focus to date on the content of the term “gender” in international legal theory, increased theorization can also play a central role in ensuring productive and sensitive interpretations of the term by the ICC. With interpretive assistance from the Rome Statute, United Nations practice, international law, and international legal theory, the definition of “gender” included in the Rome Statute will help rather than hinder the ICC in its work, and consequently will assist in advancing the understanding of “gender” in international law.
Unlike the final version of the 1998 Rome Statute, which refers to “gender” nine times, the 1994 draft Statute for an International Criminal Court by the International Law Commission (“ILC”) did not contain the word “gender.”[20] The final text was the result of a strong lobbying effort by nongovernmental organizations[21] and of recognition among many delegations that the Statute needed to be gender-sensitive if the ICC was to comprehen-
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sively address genocide, crimes against humanity, and war crimes. Use of the term “gender” was first proposed in 1996 when several states recommended adding a reference to gender balance to the ILC’s article on the qualifications and election of judges.[22] In February 1997, the term “gender” was included in brackets[23] in the crime against humanity of persecution as a specifically prohibited ground of persecution,[24] echoing recent advances in international refugee law.[25] Five more references to “gender” were added to the draft ICC Statute in the August 1997 Preparatory Committee negotiations. Two of these references were included in a provision calling on the Prosecutor to take appropriate measures to ensure the effective investigation and prosecution of crimes, while also respecting, inter alia, the gender of victims and witnesses and taking into account whether the crime involved sexual or gender violence.[26] Similar references were added into a provision stating that the Prosecutor must take appropriate measures to protect victims and witnesses, “having regard to all relevant factors, including age, gender and health, and the nature of the crime, in particular whether the crime involves sexual or gender violence.”[27] Another provision stated that the “Court shall take such measures as are necessary to ensure the safety, physical and psychological well-
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being, dignity and privacy of victims and witnesses, at all stages of the process, including, but not limited to, victims and witnesses of sexual and gender violence.”[28] This last provision gained wide acceptance and was not bracketed, while the previous provisions were bracketed because delegates debated whether the text should make separate mention of the Prosecutor’s role in protecting victims and witnesses.[29]
At the December 1997 negotiations, a proposal was made to include a provision stating that the ICC’s application and interpretation of general sources of law must be consistent with, among other things, norms of nondiscrimination based on gender.[30] Support for this idea grew, and the March 1998 draft incorporated the idea in an unbracketed article.[31] During the March 1998 negotiations, the Preparatory Committee also adopted a provision, ultimately bracketed, compelling the Prosecutor to appoint advisers with legal expertise on sexual and gender violence.[32] The issue of the qualifications of judges originally raised in 1996 was revisited,[33] and draft text was included in brackets stating that those selecting the ICC’s judges should consider in their selection gender balance and the need for “expertise on issues related to sexual and gender violence, violence against children and other similar matters.”[34] The delegates also agreed that the staff of the Court should be selected with regard to similar criteria.[35]
Going into the Rome Diplomatic Conference, there appeared to be partial agreement on the use of the term “gender” in the Statute, with two provisions containing the term accepted by consensus and a number of others bracketed and therefore open to debate.[36] Negotiations at the Diplomatic Conference
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began smoothly, with the adoption of a provision stating that the “Prosecutor shall appoint advisers with legal expertise on specific issues, including, but not limited to, sexual and gender violence and violence against children.”[37] However, opposition to the use of “gender” soon arose in the negotiations relating to the qualifications of judges.[38] At the same time as countries questioned the references to “gender” in the provision on judicial qualifi-cations,[39] conservative nongovernmental organizations distributed lobby papers calling for the deletion of both “gender balance” and the reference to judicial expertise in sexual and gender violence.[40]
After a long negotiation process, delegates ultimately chose to resolve the impasse by removing the term “gender” from the judicial provisions. While
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many countries wished to retain the reference to “gender” in “gender balance” because it followed the precedent set by the 1995 Beijing Declaration and Platform for Action,[41] the delegates agreed to change the reference to “female and male.”[42] Negotiations on whether some judges should have expertise on issues relating to sexual and gender violence led to a similar result, with the final text simply referring to expertise “on specific issues, including, but not limited to, violence against women or children.”[43] Those who had supported the retention of the reference to “gender” were comforted by the fact that the list describing expertise is illustrative rather than exhaustive and that expertise on violence against women or children overlaps to some extent (though not entirely) with expertise on gender issues.
While two references to “gender” were removed to resolve the disagreement on judicial qualifications, many states felt strongly that this was not a viable solution for other references to “gender” in the Statute. Supporters felt that the remaining references to “gender” had to be retained. Debate about whether to remove the term from the provision on persecution was set aside for later discussion,[44] and the focus shifted to the applicable law provision, the forum in which the issue was resolved.[45] This provision sets out the law to be applied by the Court and concludes with a “no adverse distinction” clause, the draft of which initially read: “The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, which include the prohibition of adverse distinction founded on gender” and other grounds.[46] While the text of this paragraph was agreed upon at the March 1998 Preparatory Committee negotiations,
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several countries now argued that the term “gender” should be deleted from the list of enumerated grounds or that the clause should end at “internationally recognized human rights.”[47] This led to a polarized debate, with many countries expressing their support for, or opposition to, retaining the term “gender.”[48] The opposition argued that the term “gender” could imply rights more expansive than those currently recognized in many states, with the main concern being that the term might sanction rights based on sexual orientation.[49] Some also argued that “gender” could not be adequately translated into all six official U.N. languages.[50] Conservative nongovernmental organizations distributed lobby papers making similar (but more detailed) arguments.[51]
After it became clear that the debate had come to an impasse on the term “gender,” the Chair of the Working Group on Applicable Law asked if the solution used at the 1995 World Conference on Women could resolve the difference of opinion. In that case, the President of the World Conference had made a statement on the commonly understood meaning of the term “gender” and an annex containing this statement was included in the conference report.[52] Many delegations felt this was an acceptable solution, but those op-
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posed to the use of the term argued that the Beijing solution was too vague as it did not actually define “gender,” and such a “non-definition” would violate the requirement of certainty in criminal law.[53] In bilateral and corridor discussions, those opposed insisted that adoption of a suitable definition was the only way in which the term could remain.
Negotiations then shifted to drafting a definition that could be accepted by all countries, and a series of proposals were considered informally.[54] Countries opposed to the use of the term “gender” indicated that they would only consider a definition that referred to “men, women and children” or “the two sexes, male and female.”[55] Countries supporting use of the term were committed to ensuring that any definition adopted would reflect that “gender” refers to socially constructed understandings of what it means to be male or female. Positive (what “gender” means) and negative (what “gender” does not mean) approaches were considered by both sides, and the positive approach was deemed to be more acceptable. In accordance with the nature of the negotiations,[56] those supportive of retaining the term made proposals referring to both “male and female” and socially constructed roles, such as: “men and women and their roles in society,” “being a male or female and its [associated] implications in society,” “men and women and their functions in society,” “males and females within society,” and “males and females in the context of society.”[57] Those opposed to the term insisted on reference to “two sexes” and agreed on the inclusion of a reference to “society,” proposing: “For the purposes of this Statute, it is understood that the term ‘gender’ refers to the two sexes, male and female, [and their roles] within society [in the context of society]. The term does not imply the existence of more than two sexes.”[58] Those supportive of retaining “gender” countered that the final
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sentence should at least reflect the Beijing approach and read: “The term does not imply any new meaning or connotation of the term different from accepted prior usage.”[59]
In the final round of informal negotiations, references to “in the context of their society” or “in the context of society and the traditional family unit” were proposed by those opposed to “gender” but rejected as too restrictive by those supportive of the term, while “in the context of society” was accepted by both sides as having “sufficient flexibility as well as precision.”[60] Those opposed to “gender” then insisted that they required something further, and the result was that the final sentence used words that had been proposed before, but written tautologically: “The term ‘gender’ does not indicate any meaning different from the above.” While an unusual solution, this sentence gave comfort to those opposed to “gender” because they saw it as reaffirming the “two sexes, male and female,” while those supportive felt that it was harmless because it reaffirmed the valuable sociological reference to “context of society.” After further debate about how to incorporate the definition into the Rome Statute, the delegates added the words “as defined in article 7(3)” after each reference to “gender” found in the Statute.
While many were surprised at the contentiousness of the debate on “gender” at the Rome Diplomatic Conference, there was precedent for this level of disagreement. The Holy See, certain Arab states, and conservative organizations had earlier made their strong views on the term “gender” known in other international fora, for example in the negotiations on the 1995 Beijing Declaration and Platform for Action. Following the adoption of that document, the Holy See stated that it understood the term “gender” “as grounded in biological sexual identity, male or female” and thus excluding “dubious interpretations based on world views which assert that sexual identity can be adapted indefinitely to suit new and different purposes.”[61] Certain conserva-
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tive Catholic and Arab states and nongovernmental organizations also expressed similar positions during the Beijing negotiations[62] and again in 1996 at the Habitat World Conference.[63]
There are two approaches within the United Nations to defining “gender.” The first is a minimalist approach taken at the multilateral (state-negotiated) level. Prior to the adoption of the Rome Statute definition, states basically left the term undefined, either overtly or implicitly. “Gender” has been referred to without definition for over a decade in United Nations multilateral human rights documents, such as the outcome documents of some U.N. World Conferences[64] and numerous resolutions from the Commission on Human Rights, Economic and Social Council, and General Assembly.[65] As described above, the term “gender” was included in the 1995 Beijing Declaration and Platform for Action only after states agreed that the President of
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the Conference would make a statement indicating that the word “gender” as used in the Platform for Action was intended to be interpreted and understood “in [its] ordinary, generally accepted usage” and that “there was no indication that any new meaning or connotation of the term, different from accepted prior usage, was intended in the Platform for Action.”[66] This same approach was adopted the next year in the 1996 Habitat World Conference.[67]
The second approach to defining “gender,” followed by the United Nations and its agencies, is quite different. These institutions have adopted a number of definitions of “gender,” some relatively detailed. While the definitions used and promoted within various parts of the U.N. differ in focus and wording, they all tend to emphasize three similar points: first, “gender” is a socially constructed concept; second, the construction of “gender” is complex and is influenced by culture, the roles women and men are expected to play, the relationships among those roles, and the value society places on those roles; and third, the content of “gender” can vary within and among cultures, and over time.
All U.N. definitions emphasize the fact that “gender” is a social construct, and therefore is a learned rather than innate category. Different definitions approach social construction in different ways. Certain U.N. definitions define “gender” by contrasting it with “sex.” Of the two main U.N. definitions that were in use at the time of the 1998 Rome Diplomatic Conference, both took this approach. One, proposed in 1995, states: “The term ‘gender’ refers to the ways in which roles, attitudes, values and relationships regarding women and men are constructed by all societies all over the world. Therefore, while the sex of a person is determined by nature, the gender of that person is socially constructed.”[68] The second, included in the 1996 Report of the Secretary-General on “Integrating the Human Rights of Women Throughout the United Nations System,” stated: “As sex refers to biologically determined differences between men and women that are universal, so gender refers to the social differences between men and women that are learned, changeable over time and have wide variations both within and between cultures.”[69] In 2002, the High Commissioner for Refugees issued influential guidelines on international protection for gender-related persecution.[70] These
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guidelines distinguish between “gender” and “sex,” defining the former as referring to “the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another, while sex is a biological determination. Gender is not static or innate but acquires socially and culturally constructed meaning over time.”[71] Similarly, the Commission on Human Rights’ Special Rapporteur on Violence Against Women has referred to “gender” as “the socially constructed roles of women and men ascribed to them on the basis of their sex.”[72]
Other U.N. definitions do not emphasize that “gender” is a social construct by contrasting “gender” with “sex.” Rather, they indicate that “gender” is built upon a biological foundation. For example, the World Bank states that “[w]omen and men are different biologically but all cultures interpret and elaborate on these innate biological differences into a set of social expectations about what behaviours and activities are appropriate, and what rights, resources, and power they possess.”[73] Some U.N. definitions do not refer either to “sex” or biology, but instead focus on the social construction of “gender.” For example, the definition adopted by the Office of the Special Adviser on Gender Issues and Advancement of Women (“OSAGI”), which is intended to assist the United Nations system in implementing gender mainstreaming throughout the U.N. system, states that “gender” “refers to the social attributes and opportunities associated with being male and female and the relationships between women and men and girls and boys, as well as relations between women and those between men. These attributes, opportunities and relationships are socially constructed and are learned through socialization processes.”[74] Definitions adopted by the World Health Organization (“WHO”),[75] the U.N. Environment Programme,[76] the U.N. Development Fund for Women together with the U.N. Inter-Agency Project on Human Trafficking in the Mekong Sub-Region,[77] the U.N. Devel-
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opment Programme (“UNDP”),[78] the International Labour Organization (“ILO”) together with the South-East Asia and the Pacific Multidisciplinary Team,[79] and a 2003 expert group meeting sponsored by the U.N. Division for the Advancement of Women, the Joint U.N. Programme on HIV/AIDS, the ILO, and UNDP also take this approach.[80] Thus, the U.N. approach does not follow any one feminist theory, with some U.N. definitions contrasting “gender” and “sex” or “gender” and biology, and other definitions approaching “gender” as any social construction of male/female distinctions (in contrast to masculine/feminine distinctions).[81]
Many of the U.N. definitions of “gender” acknowledge that the construction of the term is strongly influenced by culture, which affects the roles women and men are expected to play, the relationship among those roles, and the value society places on those roles. For example, one definition states that “[h]istorically, different cultures construct gender in different ways so that women’s roles, the value that their society places on those roles, and the relationship with men’s roles may vary considerably over time and from one setting to another.”[82] Another definition recognizes that the understanding of “gender” has “wide variations both within and between cultures.”[83] Since culture and society are so closely intertwined in the construction of the term, the OSAGI definition notes that the concept of “gender” is part of “the broader socio-cultural context.”[84] Other definitions similarly link society, culture, and sometimes political or economic context.[85] Some definitions
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understand “gender” to be even more intersectional, and must be understood as interacting with class, race, ethnicity, poverty level, sexual orientation, and age.[86] Inherent in these U.N. definitions is the understanding that those who fall outside the accepted construction of “gender” may suffer varying degrees of ostracism or other penalties in the societies in which they live.
Another important feature of many U.N. definitions is the recognition that “gender” is a category that changes over time.[87] Gender is not innate.[88] While some definitions note that at any given moment in time, gender norms are often thought to be unchanging and representing tradition or natural difference between women and men,[89] the World Bank definition states that gender asymmetries “can at times change quite rapidly in response to policy and changing socioeconomic conditions.”[90]
At the multilateral level,[91] states have generally avoided defining “gender.” This is because there is no consensus about the precise content of the term, and there are widely differing, strongly held views on what the term should and should not mean. Therefore, the term is usually left undefined, either by not including any explanation or by stating that the term is to be interpreted or understood in its ordinary, generally accepted usage. Two deviations from this approach are the Rome Statute’s definition, and the replication of that definition in the outcome document of the 2001 World Conference Against Racism.
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By contrast, the United Nations has taken the opposite approach of defining “gender,” sometimes in substantial detail. While the definitions differ, they generally stress the socially constructed nature of “gender” (sometimes contrasting it with the biologically determined nature of “sex”), they note the complexity of this construction and the influence of culture, politics, economics, race, and other variables, and they identify the time and context of “gender.”
The definition of “gender” included in the Rome Statute has garnered strong criticism. While the criticism varies, there appear to be four main grounds for concern relating to the perceived conflation of “gender” and “sex,” the limitations of the reference to “context of society,” the potential exclusion of sexual orientation from the definition of “gender,” and the sidelining of gender issues through the inclusion of a definition.
The Rome Statute’s definition begins with the statement: “For the purposes of this Statute, it is understood that the term ‘gender’ refers to the two sexes, male and female.” Hilary Charlesworth views this sentence as deliberately confusing and as eliding “sex” and “gender.”[92] She feels that the statement fails to communicate that gender is a socially constructed set of assumptions regarding the roles of males and females.[93] More pointedly, Charlesworth and Christine Chinkin argue that the phrase presents “gender” as an issue of biology rather than social construction, and thus the definition has limited transformative edge.[94] The definition does not draw attention to aspects of social relations that are culturally contingent and without a foundation in biological necessity, as use of the term “gender” should do.[95] Brenda Cossman refers to the definition as a “stunningly narrow conception of gender.”[96] She reads the definition as being explicitly limited to the two biological sexes and states that it is not even clear that the definition is intended to include the more typical understanding of gender as socially constructed roles and values.[97] Ruth Philips believes that the Rome Statute’s definition practically does not distinguish between gender and sex, leaving little room for cultural construction of sex roles.[98]
Does the reference to the “two sexes, male and female” collapse “gender” back into “sex”? The answer to this question is important because it will
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determine what factors the ICC will consider in examining the crimes and the needs of victims and witnesses. For example, if “gender” is no more than “sex,” then the ICC would not be able to carry out the kind of analysis of men’s and women’s roles that proved to be critical in the disposition of the Krstic case in the International Criminal Tribunal for the Former Yugoslavia.[99] Similarly, the ICC would simply consider whether a victim or witness was male or female, rather than also considering the social construction attached to “male” or “female” in a given society, which could result in insensitive decisions about the protection or participation of the victim or witness. Those opposed to the definition of “gender” pressed hard for a definition that made “gender” mean the same thing as “sex,” because they feared that if it did not, the baseline for interpreting the social construction of “gender” would expand from male and female to either include five “genders” (adding gay, lesbian, and transgendered) and/or include hermaphrodites, female hermaphrodites, and male pseudo hermaphrodites.[100] They were convinced that if “male and female,” the number “two,” and the word “sex” were used, biology would be the foremost factor in the definition.
However, the references to “two sexes” and “male and female” cannot strip meaning from “gender” and render it equivalent to “sex,” because they are linked to the phrase “within the context of society.” A far more straightforward interpretation of the “two sexes, male and female” is that it serves as a signal to the ICC that the social construction of “gender” is to be interpreted from a biological male/female foundation, just as a number of United Nations definitions of “gender” take “sex” as their starting point. A biological foundation is quite different from biological determinism, unless taken to an extreme.
The ICC should not take, and should not be assumed to take, a biologically determinist position in defining “gender,” for two reasons. First, while the negotiating history does include a bloc that wished to ensure biological determinism, that history also includes a larger bloc that wished to ensure the opposite. The ICC will take that into account when considering the intent of the drafters.[101] Second, given that there is no consensus among com-
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mentators on the plain meaning of the “two sexes, male and female,” the ICC is likely to also study “applicable treaties and the principles and rules of international law”[102] in formulating its understanding of gender. These treaties and laws include the principle of gender mainstreaming[103] and the various definitions of “gender,” including those outlined above, which are a part of international law. Many U.N. definitions take “sex” or biology as the starting point from which to contrast “gender,” and upon which the socially constructed understandings of “male” and “female” are built.[104]
Within feminist theory, including feminist theory of international law, there are evolving and differing views on the nature of “sex” and “gender.” These differing views explain certain aspects of the criticism of the Rome Statute definition, especially of the phrase “two sexes, male and female.” Judith Butler argues that the “construct called ‘sex’ is as culturally constructed as gender.”[105] If this is so, then “sex” is not a place from which to contrast “gender” or a platform upon which the social construction of “gender” can be built. The U.N.-style approach outlined above does not take the social construction of “sex” into account. This, according to Cossman, means that the definition of “gender” at the international level loses its “subversive” possibilities and instead becomes narrowly conceived.[106] Is it possible that the Rome Statute definition of “gender” encompasses Cossman’s approach, such that a reading of “sex” is also socially constructed? The possibility of interpreting the Statute with “sex” understood as a socially constructed concept cannot be ruled out, given that the “two sexes” of the Rome Statute defini-tion are themselves potentially subject to “the context of society.” However, the definition seems to fall heavily on the side of the “sex”-as-a-starting-point approach taken by the U.N., given a plain reading of the definition, the negotiation history, and the precedent provided by various U.N. definitions.
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Cossman’s concerns are therefore validated. Even so, this fact is unlikely to have any practical effect on the ICC’s work as the word “sex” will always be considered by the Court in the context of the “gender” definition and not on its own, since it is not used elsewhere in the Statute.
The second criticism of the definition raised by some authors is that the phrase “within the context of society” limits what the ICC can understand gender to mean, and therefore may limit the ICC’s consideration of the full range of factors affecting the social construction of gender. If this were true, then the ICC might not be able to examine certain factors related to how a society constructs “gender,” such as a strong cultural emphasis on marriage and female virginity at marriage, or societal vilification of gay men. If the ICC cannot examine these factors, then it will not be able to understand and evaluate adequately the effects of rape on a female victim who is deemed unmarriageable by her society, or on a man (whatever his sexual orientation) raped by another man in a homophobic society. Cossman argues that the phrase “in the context of society” is unclear and may be narrower than the typical view that “gender” involves socially constructed roles.[107] The Special Rapporteur on Violence Against Women characterizes the definition as preventing approaches that rely on the social construction of gender.[108] Not all commentators agree, however. Barbara Bedont, Katherine Hall Martinez, Rhonda Copelon, and Machteld Boot read the phrase “context of society” as incorporating a sociological or social construction of gender.[109] The Special Rapporteur on Contemporary Forms of Slavery interpreted the definition to be “consistent with other, more clearly stated formulations” adopted within the United Nations,[110] which would include the socially and culturally sensitive definitions outlined above.
There is no denying the fact that the phrase “within the context of society” is not as clear as language found in, for example, U.N. definitions of “gender,” including “socially constructed,”[111] “constructed by all societies,”[112] “socially defined,”[113] and “social differences.”[114] Even so, the phrase “context of society” is not very different from the language found in the U.N. definitions. The phrase “within the context of society” was chosen to give ICC judges the flexibility to determine the meaning of the phrase on a case-by-case basis,[115] which the U.N. definitions also encourage. In so doing, and in
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accordance with article 21, the ICC will need to create a set of signifiers of context such as those found in the U.N. definitions outlined above: roles (including the relationship between and among men’s and women’s roles), attitudes, values, attributes, expectations, status, opportunities, socialization processes, responsibilities assigned, rights, resources, and power, as determined and/or expected within a society or culture at any given time and place, and as affected by race, class, sexual orientation, poverty level, ethnic group, age, and other factors. The end result is that “context of society” necessarily implicates the same factors as “socially constructed,” and therefore allows the ICC to consider a wide range of crucial factors involved in understanding “gender” within a society.
In addition, while judges are to consider the “context of society,” this does not mean that they must defer to the context, a fear that seems to underlie some of the commentators’ concerns. When the ICC judges and Prosecutor are considering the crime against humanity of gender-based persecution, the ICC’s Elements of Crimes document requires that the definition of “gender” be evaluated in light of the acts and perception of the accused. The accused may try to rely on state- or society-supported misogynist or homophobic reasoning to excuse his actions. For example, an accused may try to excuse his crimes as being dictated by the kind of propaganda campaign that the International Criminal Tribunal for Rwanda described as taking place prior to and during the 1994 genocide, in which Tutsi women were presented as sexual objects.[116] However, this defense would not be successful because the reference to “within the context of society” does not require the ICC’s Prosecutor and judges to situate themselves within, and potentially accept, a misogynist or homophobic framework in order to determine whether “gender” was the basis for persecution.[117] Similarly, if a society defines “gender” narrowly, this cannot negatively alter how the ICC provides victim and witness protection or participation, or how the Prosecutor undertakes his or her duties with respect to a certain situation. The Prosecutor, Registrar, and judges must not only examine the context of the society in which the crime took place (and how the perpetrator viewed that context), but must also interpret
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and apply the definition of “gender” in light of international law.[118] The “society” considered in the Rome Statute’s definition is not only domestic, but also international.[119] A helpful corollary is found in international refugee law, which considers both the domestic and international social construction of “gender.”[120]
The third criticism leveled at the Rome Statute’s definition of “gender” is that it appears to preclude the ICC from interpreting sexual orientation as included within “gender.” (This is actually a subset of the second concern; namely, that the ICC will not be able to consider one important aspect in the social construction of “gender”: the social understanding of sexual identity.) Charlesworth and Philips both take the view that the definition deliberately reflects the concern of Arab states and the Holy See that any reference to “gender” might be understood to include sexual orientation.[121] While they do not explicitly conclude that sexual orientation is therefore excluded from the definition of “gender” (although Philips calls the approach “regressive”[122]), Rana Lehr-Lehnardt does, stating that “gender means male and female, not homosexual” and that “homosexual provisions are excluded.”[123] Stephanie Farrior also assumes that “[d]ebates in Rome resulted in the [Rome Statute] adopting a limiting definition to ensure that persecution on the basis of sexual orientation would not be covered.”[124] Cossman correctly notes that conservative states locked onto the concept of “gender” as potentially subversive because it includes consideration of sexual identity.[125] She concludes that, as a result of conservative pressure, the ICC’s definition excludes protections for “gender outlaws.”[126] Like Charlesworth, Cossman fears that the ICC negotiators missed an opportunity to remap the margins or
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boundaries of international law,[127] rethink “gender,” and engage with both the limits and possibilities of agency, including sexual agency.[128]
The views assuming that sexual orientation is excluded from the definition of “gender” are arguably incorrect. First, as Copelon notes, the “words do not support an exclusion of sexual orientation.”[129] Indeed, as Cate Steains correctly recalls, there was no consensus as to whether the definition of “gender” should include sexual orientation.[130] This lack of consensus “effectively leaves the term open for the Court to interpret and apply to the circumstances before it, as appropriate.”[131] Some seem to read the final sentence of the Rome Statute definition as implicitly precluding “gender” from encompassing sexual orientation.[132] But the text does not say this and, as Bedont, Hall Martinez, and Copelon have stated, many view this last sentence as tautological and superfluous[133] because it simply refers the reader back to the first sentence. This analysis is defensible under general principles of treaty interpretation, according to which the ICC would examine the ordinary meaning of the words of the second sentence,[134] which say that the first sentence does not have any meaning other than what it means.[135]
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Second, Copelon convincingly argues that it is “dubious to argue that any ambiguity should be resolved in favor of discrimination.”[136] The right to nondiscrimination on the basis of sexual orientation has been recognized by various United Nations treaty committees.[137] Third, conceptions of “gender” and sexual orientation are inextricably linked. Violence against women or men based on cultural definitions of “appropriate maleness” or “femaleness” is intimately intertwined with violence against individuals based on sexual orientation.[138] The concept of “gender,” especially in the context of gender-based persecution, must be broad enough to capture any group challenging traditionally defined gender roles—not only groups defined by sexual orientation, but also individuals who violate norms of gender conformity through their dress and other social, non-sexual forms of expression, such as transgendered individuals.[139] Women and those who attempt to transcend societal gender role expectations often fight against similar opponents for similar underlying reasons.[140] Under international refugee law, the U.N. High Commissioner for Refugees has recognized that gender-based persecution includes discrimination against homosexuals.[141]
While there are strong arguments against an assumed exclusion of sexual orientation from the definition of “gender” in the Rome Statute, some might argue that it does not matter whether “gender” includes sexual orientation
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because sexual orientation can be addressed through other avenues. For example, sexual orientation could be included under “other status” in the article on the application and interpretation of applicable law,[142] as was done by certain states following the adoption of the Beijing Declaration and Platform for Action.[143] Sexual orientation could possibly be considered in the crime against humanity of persecution, through the phrase “or any other grounds that are universally recognized as impermissible under international law.”[144] In addition, the Prosecutor could hire an adviser with expertise on sexual orientation issues, and the Court and the Prosecutor could consider the sexual orientation of victims and witnesses in making decisions on investigations, prosecutions, and protection, because the considerations in the relevant articles are open-ended and not exhaustive.[145] These arguments may provide alternative or additional ways of including sexual orientation in the Rome Statute, but the fact remains that a consideration of the construction of “gender” would not be complete without an evaluation of whether the collective norms in a society understand “femaleness” and “maleness” only to include heterosexuality, or to include different sexual identities.[146] In some cases the expectations of heterosexuality are so prevalent that they are fundamental to the interpretation of other aspects of “gender.” For example, perpetrators may choose to persecute groups of women using rape because they expect that the women will then be considered “defiled” and therefore unmarriageable by the men in their society.
Buried within the concern about potential exclusion of sexual orientation from the definition of “gender” is the separate concern that the ICC will conflate “sex,” “gender,” and “sexual orientation.”[147] This could work in two ways: “gender” could be conflated with “sexual orientation” such that an analy-
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sis of “gender” begins and ends with an analysis of sexual orientation. This would limit the Court’s understanding of “gender” to only one facet of many that could be considered. This could lead the ICC to overlook cases of gender-based persecution that do not (overtly) involve elements of sexual orientation, such as targeting all male children for extermination because they could eventually become soldiers. This is not a likely scenario given the need for the ICC to evaluate the “context of society” and all of its attendant indicators outlined above. The second way this triple conflation could work is that “sexual orientation” could be collapsed into either “sex” or “gender,” with the end result that the ICC equates “sexual orientation” with heterosexuality.[148] In other words, commentators are concerned that the ICC will fall into a trap of heteronormativity. While this concern stems from the negotiation history, in which conservative states pressed for the reference to “two sexes” in an unsuccessful attempt to collapse “gender” back into biology, it also stems from feminist critiques arguing that “sex” is a socially constructed concept and questioning the link between the assumption that there are only two sexes and therefore two areas of evaluating “gender”—masculinity and femininity—and, implicitly, sexual identity.[149] This triple conflation could cause problems if the ICC assumed in any given context that biological sex and/or gender dictated a person’s sexuality, thereby overlooking potential grounds for persecution. The ICC therefore must be alert to avoid conflating “sex” and/or “gender” with “sexual orientation,” even though there are no textual clues (as there are in the differentiation of “sex” and “gender”) within the Rome Statute definition of “gender.”
Finally, some commentators fear that the fact that “gender” is defined in the Rome Statute when other equally crucial terms are not suggests that gender issues will remain sidelined within international criminal justice. According to Jocelyn Campanaro, the very fact that “gender” is defined and other key terms are not reflects a devaluation of gendered harms.[150] She is concerned that gender-based crimes will not receive equal attention as a result,[151] probably because the definition is too narrow or because the ICC will be less inclined to prosecute or convict on the basis of an opaque definition. Similarly, Brook Sari Moshan feels that the Rome Statute inappropriately qualifies
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the term “gender” and considers the definition a “failure.”[152] She believes that the definition will complicate the prosecution of gender-based crimes as it is unworkable and impractical.[153] She fears that the definition of “gender” implies that gender-based persecution is different from other forms of persecution and therefore will be perceived by the ICC’s judges as “somehow less grave.”[154]
Campanaro and Moshan’s concerns are understandable, given many failures in the past to prosecute fully, or prosecute at all, gender-based crimes.[155] However, much comfort can be found in the arguments above on the nature of the definition of “gender” and in the administrative structure of the ICC set out in the Statute. Under this structure, the Prosecutor must appoint advisers with legal expertise on sexual and gender violence[156] and must take appropriate measures to ensure the effective investigation and prosecution of crimes, taking into account whether the crimes involve gender violence.[157] These steps were specifically included to ensure that gender-based crimes are not sidelined or ignored.[158] The Prosecutor has, in fact, highlighted gender-based crimes in his statements relating to the investigation underway in the Democratic Republic of Congo.[159]
It is unfortunate that “gender” was singled out in the Rome Statute negotiations and ultimately accorded a “peculiar and circular” definition.[160] A large number of delegations wished to leave the term undefined, just as the terms “political,” “racial,” “national,” “ethnic,” “cultural,” and “religious” were left undefined in the crime against humanity of persecution, and as “age,” “race,” “colour,” “language,” “religion or belief,” “political or other opinion,” “national, ethnic, or social origin,” “wealth,” “birth,” and “other status” remain undefined in article 21(3) on the application of the law without adverse distinction. Once it became clear that the only solution was to adopt a definition, both sides in the “gender” debate would have preferred a definition that more clearly articulated their positions. As is often the case in international negotiations, states sought refuge in constructive ambiguity,[161]
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leaving much of the decision-making on the content of the definition to the ICC’s judges (and, where provided for in the Statute, the Prosecutor and Registrar).
Since the interpretation of “gender” is left with the ICC itself, there are very real concerns by many commentators that the ICC will choose a narrow and regressive reading of the “gender” definition. This could have ramifications not only for how the ICC addresses certain crimes, applicable law and victims and witnesses, but also on the theorization of “gender” in international law more generally. While there is no guarantee that the ICC will go down such a negative path, there are many clear and positive guideposts pointing the ICC in a more progressive direction. If the ICC follows the more progressive path, many of the current concerns will appear overstated. A plain reading of the Rome Statute’s text and an interpretation based on U.N. definitions of “gender” support a differentiation between “sex” and “gender,” rather than a conflation of the two terms. The ICC will likely understand “context of society” as equal to “socially constructed” and draw its list of indicators of “context of society” from existing U.N. definitions of “gender” which are broad, multifaceted, and cross-cutting. While the ICC must consider the “context of society,” it cannot defer to a misogynist or homophobic context. Additionally, the negotiation history and a plain reading of the Rome Statute’s definition of “gender” demonstrate that “sexual orientation” is not explicitly excluded from “gender.” In addition, international law is increasingly recognizing “sexual orientation” as a prohibited ground of discrimination. Finally, the administrative structure provided for in the Rome Statute directs the Prosecutor to adopt a strong focus on gender-based crimes, resulting in a thorough review of such crimes by the ICC’s judges. Therefore, while one cannot predict with certainty that the ICC will avoid the pitfalls identified by Cossman, Charlesworth, the Special Rapporteur on Violence Against Women, and others, there are strong indicators that the ICC will take a path that benefits gender justice at the ICC, and international law more generally.[162]
The criticisms of the Rome Statute’s definition of “gender” highlight the fact that the term is undertheorized in international law. The fact that the Rome Statute leaves the ICC to give content to the term “gender” creates an important opportunity for international lawyers to focus more squarely on the meaning of the term. Increased theorization (at a general level and in the
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context of the Rome Statute) can play a critical role in ensuring broad and productive interpretations of the term by the ICC. Increased theorization may mean transporting theories on the definition of “gender” from other contexts (the domestic legal context and others) and examining their applicability to international law generally, as well as to specific areas of international law such as international human rights, humanitarian, criminal, and refugee law.[163] It may also mean creating a new set of understandings, and would very likely include a great deal of fluidity. A focus on theorizing “gender” will likely lead to a number of international legal approaches, just as there are a number of ever-evolving feminist approaches in other areas.
The definition of “gender” in the Rome Statute should not automatically be replicated in other international law documents. This is easier said than done in the context of international consensus negotiations, in which an unequal power structure privileges those countries rejecting proposals (even when they are a small minority), and in which debates on “gender” are sometimes unfortunately characterized as “distractions” from the “main issues.”[164] Add in the pressures of domestic, religious, and other politics and negotiators may view the Rome Statute definition as a “quick fix” to resolve a crisis. This is what happened in the Durban Declaration and Programme of Action of the 2001 World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance.[165] While the Rome Statute’s definition is broad and flexible enough to ensure a positive and sensitive interpretation by the ICC’s Prosecutor, Registrar, and judges, its text is also spare and circular. Future documents can and should strive for a better-drafted and clearer approach, even if the text is essentially left similarly open to construction (this provides the opportunity for increased theorization of the term “gender”). To achieve this, states supportive of a sensitive and forward-looking use of the term “gender” must plan ahead, work together during negotiations, and act as a cohesive bloc. Again, this is easier prescribed than followed, as there would first need to be consensus among a group of states as to some of the basic content of “gender,” even when there is no agreement within the feminist community on the same point. However, such coordination is essential to ensure that states do not approach defining “gender” progressively in an ad-hoc manner—as if opposition to the term always comes as a surprise—but rather approach such a definition as a strategic goal.
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The Rome Statute definition does not transform international law from understanding “gender” in one way to understanding it a different way.[166] In this sense, the definition in the Rome Statute represents a missed opportunity to remap the boundaries of international law.[167] Practically speaking, it probably was never possible to make a dramatic shift, given the dynamics of the negotiation. The result, however, is broad enough to allow the ICC to interpret the definition to reflect the approaches taken within the United Nations, including nondiscrimination on the basis of sexual orientation, and avoid regression in the law. It is also enough of an empty vessel that increased attention to the theories of “gender” by international lawyers could also have a significant and positive impact on the content of “gender” within international law.
[*] Legal Officer, United Nations, Human
Rights and Economic Law Division, Foreign Affairs Canada. Ms. Oosterveld was a member of the
Canadian delegation to the 1998 U.N. Diplomatic Conference of Plenipotentiaries on the
Establishment of the International Criminal Court [hereinafter ICC). She focused on
gender-related issues and was involved in the formal, informal, and corridor negotiations on
the definition of “gender.” Ms. Oosterveld also served on the Canadian delegation
to the subsequent ICC Preparatory Commission and the Assembly of States Parties. This
Article was written in partial fulfillment of the requirements for the degree of Doctor of
the Science of Law in the Faculty of Law, Columbia University. The views expressed in this
Article are the author’s own and are not necessarily the views of the Government of
Canada. The author would like to thank Kristen Boon, Doris Buss, and Debra Livingston for
their comments on earlier drafts.
[1]. Rome Statute of the International Criminal Court,
July 17, 1998, 37 I.L.M. 999 (1998) [hereinafter Rome Statute]. The definition is
found in article 7(3).
[2]. Brenda Cossman, Gender Performance, Sexual
Subjects and International Law, 15 Can. J.L. & Juris. 281, 283 (2002). Stephanie
Farrior has similarly described the definition as “limiting.” Stephanie Farrior,
The Rights of Women in International Human Rights Law Textbooks: Segregation,
Integration, or Omission?, 12 Colum. J. Gender & L. 587, 589 (2003).
[3]. Brook Sari Moshan, Women, War and Words: The
Gender Component in the Permanent International Criminal Court’s Definition of Crimes
Against Humanity, 22 Fordham Int’l L.J. 154, 178 (1998).
[4]. Dorean M. Koenig & Kelly D. Askin,
International Criminal Law and the International Criminal Court Statute: Crimes Against
Women, in 2 Women and International Human Rights Law 3, 20 n.73 (Kelly D. Askin
& Dorean M. Koenig eds., 2000). Askin notes that, at a roundtable discussion, Professor
Theo van Boven described the definition as “the most puzzling and bizarre language ever
included in an international treaty.”
[5]. Id. at 20; see also Rhonda Copelon,
Gender Crimes as War Crimes: Integrating Crimes Against Women into International Criminal
Law, 46 McGill L.J. 217, 236 (2000) (describing the definition as “peculiar and
circular,” albeit from a more positive point of view).
[6]. Rana Lehr-Lehnardt, One Small Step for Women:
Female-Friendly Provisions in the Rome Statute of the International Criminal Court, 16
BYU J. Pub. L. 317, 340 (2002).
[7]. Hilary Charlesworth & Christine Chinkin, The
Boundaries of International Law: A Feminist Analysis 335 (2000).
[8]. Hilary Charlesworth, Feminist Methods in
International Law, 93 Am. J. Int’l L. 379, 394 (1999) [hereinafter Charlesworth,
Feminist Methods]. See also Ruth B. Philips, Too Close to Home?:
International Criminal Law, War Crimes and Family Violence, 24 T. Jefferson L. Rev. 229,
233 n.14 (2002).
[9]. Charlesworth, Feminist Methods, supra
note 8, at 394.
[10]. Integration of the Human Rights of Women and
the Gender Perspective: Violence Against Women, Report of the Special Rapporteur on Violence
Against Women, Its Causes, and Consequences, Ms. Radhika Coomaraswamy, Submitted in
Accordance with Commission on Human Rights Resolution 2000/45, Violence Against Women
Perpetrated and/or Condoned by the State During Times of Armed Conflict
(1997–2000), U.N. ESCOR, Comm’n on Hum. Rts., 57th Sess., Agenda Item 12(a),
¶ 19, U.N. Doc. E/CN.4/2001/73 (2001) [hereinafter Report of the Special Rapporteur
on Violence Against Women].
[11]. Contemporary Forms of Slavery: Systematic
Rape, Sexual Slavery and Slavery-Like Practices During Armed Conflict, Update to the Final
Report Submitted by Ms. Gay J. McDougall, Special Rapporteur, U.N ESCOR, Comm’n on
Hum. Rts., Sub-Comm’n on the Promotion and Protection of Hum. Rts., 52d Sess., Agenda
Item 6, ¶ 26, U.N. DOC. E/CN.4/sub.2/2000/21(2000) [hereinafter Report of the Special
Rapporteur on Contemporary Forms of Slavery]. See also Barbara Bedont & Katherine
Hall Martinez, Ending Impunity for Gender Crimes Under the International Criminal
Court, 6 Brown J. World Aff. 65 (1999), available at
http://www.crlp.org/pub_art_icc.html
(last visited Feb. 16, 2005); Barbara Bedont, Gender-Specific Provisions in the Statute
of the International Criminal Court, in 1 Essays on the Rome Statute of the
International Criminal Court 183, 187 (Flavia Lattanzi & William A. Schabas eds., 1999)
[hereinafter Bedont, Gender-Specific Provisions]; Copelon, supra note
5, at 237; Machteld Boot, III. Paragraph 3:
Definition of Gender, in Commentary on the Rome Statute of the International
Criminal Court: Observers’ Notes, Article by Article 171, 172 (Otto Triffterer ed.,
1999).
[12]. Rome Statute, supra note
1, art. 7(3).
[13]. Id. arts. 7(1)(h), 21(3).
[14]. “Constructive ambiguity” is a term
used in diplomacy to refer to the use of ambiguous words that give comfort to those on
different sides of a debate, thereby promoting agreement.
[15]. Rome Statute, supra note 1, arts. 7(1)(h), 7(3).
[16]. Id. art. 21(3).
[17]. Id. art. 42(9).
[18]. Id. art. 54(1)(b).
[19]. Id. art. 68(1).
[20]. See Report of the International Law
Commission on the Work of its Forty-Sixth Session, U.N. GAOR, 49th Sess., Supp. No. 10,
art. 20, at 70–73, U.N. Doc. A/49/10 (1994). See also Rome Statute, supra
note 1, arts. 7(1)(b), 7(3), 21, 42(9),
54(1)(b), 68(1).
[21]. Especially the coalition of nongovernmental
organizations known as the Women’s Caucus for Gender Justice.
[22]. Report of the Preparatory Committee on the
Establishment of the International Criminal Court, Vol. II (Compilation of
Proposals), U.N. GAOR, 51st Sess., Supp. No. 22, at 11, 14, U.N. Doc. A/51/22 (1996).
See also Report of the Preparatory Committee on the Establishment of the
International Criminal Court, Vol. I (Proceedings of the Preparatory Committee
During March-April and August 1996), U.N. GAOR, 51st Sess., Supp. No. 22, at 11, U.N.
Doc. A/51/22 (1996).
[23]. In international negotiations, the use of
square brackets indicates text that has not been accepted by consensus.
[24]. Decisions Taken by the Preparatory Committee
at Its Session Held from 11 to 21 February 1997, U.N. GAOR, Preparatory Comm. on the
Establishment of an Int’l Crim. Court, 51st mtg., Annex 1, at 4, 5 n.7, U.N. Doc.
A/AC.249/1997/L.5 (1997). “Gender” was bracketed as part of the debate on whether
to include an illustrative (open-ended) list of prohibited grounds for persecution, or an
exhaustive (closed) list. Some countries supported a short illustrative list without
“gender” because additional grounds could be “read in” by the ICC’s
judges on a case-by-case basis. Certain other countries argued for an exhaustive list taken
from the Charters and Statutes of previous international criminal tribunals (which did not
include “gender”). See Darryl Robinson, Defining “Crimes Against
Humanity” at the Rome Conference, 93 Am. J. Int’l L. 43, 53–54 (1999);
e-mail from Darryl Robinson, Legal Officer, Foreign Affairs Canada, to Valerie Oosterveld,
Legal Officer, Foreign Affairs Canada (Feb. 18, 2004) (on file with author).
[25]. The United Nations High Commission for Refugees
EXCOM had issued Conclusion No. 39 (XXXVI), which recognized that states, in the exercise of
their sovereignty, are free to adopt the interpretation that women asylum-seekers who face
harsh or inhuman treatment due to their having transgressed the social mores of the society
in which they live may be considered as a “particular social group” within the
meaning of article 1(a)(2) of the Refugee Convention. Conclusion No. 39 (XXXVI) on
Refugee Women and International Protection, Executive Comm. of the United Nations High
Comm’n for Refugees, ¶¶ (b), (k), U.N. Doc. HRC/IP/2 (1985). In addition, the
UNHCR had issued Guidelines on the Protection of Refugee Women, Office of the U.N.
High Comm’r for Refugees, U.N. Doc. EC/SCP/67 (1991) and U.N. High Comm’n for
Refugees, Sexual Violence Against Refugees: Guidelines on Prevention and Response (1995).
Several countries had also recognized, through policy or legislation, that gender-based
persecution is a valid ground for claiming refugee status. See Thomas Spijkerboer,
Gender and Refugee Status 3 (2000).
[26]. Decisions Taken by the Preparatory Committee
at Its Session Held from 4 to 15 August 1997, U.N. GAOR, Preparatory Comm. on the
Establishment of an Int’l Crim. Court, Annex 2, at 16, U.N. Doc.
A/AC.249/1997/L.8/Rev.1 (1997).
[27]. Id. art. 43(2).
[28]. Id. art. 43(3).
[29]. At this time, no state questioned (at least
publicly) the use of the term “gender” in these provisions.
[30]. Decisions Taken by the Preparatory Committee
at Its Session Held 1 to 12 December 1997, U.N. GAOR, Preparatory Comm. on the
Establishment of an Int’l Crim. Court, Annex 2, at 14 n.11, U.N.
Doc.A/AC.249/1997/L.9/Rev.1 (1997).
[31]. Report of the Preparatory Committee on the
Establishment of an International Criminal Court (Draft Statute and Draft Final
Act), U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an
Int’l Crim. Court, Rome, Italy, June 15–17, 1998, at art. 20(3), U.N. Doc.
A/CONF.183/2/Add.1 (1998) [hereinafter 1998 Draft Statute Report of the Preparatory
Committee]. However, certain conservative states asked, in corridor discussions, why
this article did not refer to non-discrimination on the basis of sex.
[32]. Id. art. 43(9).
[33]. Report of the Preparatory Committee on the
Establishment of the International Criminal Court, Vol. II (Compilation of
Proposals), supra note 22.
[34]. 1998 Draft Statute Report of the Preparatory
Committee, supra note 31, art. 43(9).
For a description of opposition to these references, see Cate Steains, Gender
Issues, in The International Criminal Court: The Making of the Rome
Statute—Issues, Negotiations, Results 357, 377–80 (Roy S. Lee ed., 1999).
[35]. 1998 Draft Statute Report of the Preparatory
Committee, supra note 31, art. 45(2).
This was done through a cross reference to article 37(8).
[36]. Id. The provisions accepted by consensus
were articles 20(3) on applicable law and 68(3) on measures the Court shall take with
respect to victims. The bracketed provisions were the Crimes Against Humanity article,
article 37(8)(e) on gender balance among judges and judicial qualifications, article 43(9)
on a Prosecutor-appointed gender adviser, article 54(4)(e) on Prosecutorial investigations,
and article 68(2) on measures the Prosecutor shall take with respect to victims.
[37]. Agreement was reached in the informal
negotiations of the Working Group on Composition and Administration of the Court on June 29,
1998. Valerie Oosterveld, Member of the Canadian Delegation to the 1998 U.N. Diplomatic
Conference of Plenipotentiaries on the Establishment of the International Criminal Court,
Notes From Informals of the Working Group on Composition and Administration of the Court,
June 29, 1998 (on file with author). The provision was adopted by the Committee of the Whole
and sent to the Drafting Committee on July 4, 1998. Recommendations of the Coordinator:
Part 4, Composition and Administration of the Court, U.N. Diplomatic Conference of
Plenipotentiaries on the Establishment of an Int’l Crim. Court, Rome, Italy, June
15–17, 1998, U.N. Doc. A/CONF.183/C.1/L.45 (1998).
[38]. In initial public discussions of the issue, the
delegate from Syria stated that the paragraph providing for judges with expertise “on
issues related to sexual and gender violence” was unacceptable: “he knew of no
specialty called ‘gender violence.’” Summary Record of the 14th
Meeting, U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an
Int’l Crim. Court, Comm. of the Whole, 14th mtg., Agenda Item 11, ¶ 46, U.N. Doc.
A/CONF.183/C.1/SR.14 (1998) [hereinafter Comm. of the Whole, Summary Record of the 14th
Meeting]. Iran argued that reference to “gender balance” could give rise to
difficulties of understanding and interpretation, and that the reference to judicial
expertise in sexual and gender violence might be expanded, for example to include expertise
in the crime of torture. Summary Record of the 15th Meeting, U.N. Diplomatic
Conference of Plenipotentiaries on the Establishment of an Int’l Crim. Court, Comm. of
the Whole, 15th mtg., Agenda Item 11, ¶ 11, U.N. Doc. A/CONF.183/ C.1/SR.15 (1998)
[hereinafter Comm. of the Whole, Summary Record of the 15th Meeting]. Some states
opposed to the use of “gender” expressed concern in corridor discussions that
their judges would not be considered to have expertise in gender-based violence because such
violence was traditionally dealt with outside of the criminal justice system. Countries from
all regions also spoke publicly in favor of retaining the references to “gender
balance” or judicial expertise in sexual and gender violence. See Comm. of the
Whole, Summary Record of the 14th Meeting, supra (for comments from the United
States, Nigeria, Colombia, New Zealand, Sweden, Afghanistan, Senegal); Comm. of the Whole,
Summary Record of the 15th Meeting, supra (for comments from Oman, Canada,
Australia, Thailand, Libya, Brunei Darussalam, Iraq, Burundi, Ghana, Costa Rica, and
Finland).
[39]. See Steains, supra note
34, at 381 n.80 for a list of countries that
spoke in favor. For those that called for deletion, see id. at 381 n.81.
[40]. For example, a paper prepared by the David M.
Kennedy Center for International Studies stated:
some groups espouse the vague concept of “gender sensitivity” as a litmus test in the judicial selection process. While consideration of the needs of women and children in the judicial selection process is appropriate, use of the undefined (and readily expansive) concept of “gender sensitivity” is problematic, and could be used by some special interest groups to undermine traditional moral, cultural and religious values.
David M. Kennedy Center for International Studies, Impartiality in
the Election of Judges, at
http://www.worldfamilypolicycenter.org/wfpc/About_the_WFPC/papers/icc_report.html#AppH1
(last visited Jan. 12, 2005). In an untitled paper, REAL Women of Canada argued that the
word “gender” is used by special interest groups to capture the idea that men and
women’s roles are socially constructed, and that the term can be used to establish or
advance “rights” based on sexual conduct or sexual orientation: “On n’a
jamais défini le mot ‘gender’ précisément [The word
‘gender’ was never precisely defined].” (on file with author).
[41]. Beijing Declaration and Platform for Action
in 1 Report of the Fourth World Conference on Women, Beijing, 4–15 September 1995,
U.N. Doc. A/CONF.177/20/REV.1, U.N. Sales No. 96.IV.13 (1996) [hereinafter Beijing
Platform for Action].
[42]. In fact, since the meaning here related to
biological sex, it made sense to change it for terminological clarity, despite the Beijing
Platform for Action’s language of gender balance. Charlesworth makes “a plea for
greater terminological awareness,” so “gender” is not used where
“sex” is the appropriate term, and vice-versa. See Hilary Charlesworth,
The Gender of International Law, Proceedings of the Ninety-Third Annual Meeting of the
American Society of International Law, 93 Am. Soc’y Int’l L. Proc. 206 (1999)
[hereinafter Charlesworth, Proceedings].
[43]. Rome Statute, supra note
1, art. 36(8).
[44]. This was done by flagging the term with a
footnote stating that “gender” “refers to male or female.” Article 5,
Crimes Within the Jurisdiction of the Court, U.N. Diplomatic Conference of
Plenipotentiaries on the Establishment of an Int’l Crim. Court, Rome, Italy, June
15–17, 1998, at 2 n.2, U.N. Doc. A/CONF.183/C.1/L.44 (1998). This was not an
agreed-upon definition; it was simply a placeholder for later debate. Dissenting states were
concerned that their male nationals could be charged with crimes against humanity because of
traditional gender-based practices and criminalization of homosexuality. For example,
Azerbaijan asked if the persecution provision could “imply that a conviction by a
national court for homosexual acts might be regarded as persecution and thus fall within the
jurisdiction of the Court as a crime against humanity?” Summary Record of the 25th
Meeting, U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an
Int’l Crim. Court, Comm. of the Whole, 25th mtg., Agenda Item 11, ¶ 61, U.N. Doc.
A/CONF.183/C.1/SR.25 (2002).
[45]. Rome Statute, supra note
1, art. 21(3), formerly 20(3), during the
negotiations. While the definition of “gender” was debated in this forum, debates
on retaining or deleting the term still took place in negotiations on other articles.
See Steains, supra note 34, at
386–89.
[46]. 1998 Draft Statute Report of the Preparatory
Committee, supra note 31, art.
20(3).
[47]. Steains, supra note
34, at 372.
[48]. For example, on July 11 and 13, 1998,
Australia, Belgium, Canada, Chile, Colombia, Costa Rica, Finland, France, Greece, Italy,
Kenya, Mexico, Mozambique, Netherlands, New Zealand, Norway, Samoa, Senegal, Slovenia, South
Africa, and the United States argued in favor of retaining the term “gender,”
while Bahrain, Brunei, Egypt, Guatemala, Iran, Kuwait, Libya, Oman, Qatar, Saudi Arabia,
Sudan, Syria, Turkey, United Arab Emirates, Venezuela, and Yemen called for the elimination
of the term “gender.” Valerie Oosterveld, Member of the Canadian Delegation to the
1998 U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of the
International Criminal Court, Notes From Working Group on Applicable Law, July 11, 13, 1998
(on file with author).
[49]. Steains, supra note
34, at 372. The concern that the term might also
recognize women’s human rights not recognized domestically was also implicit in some
statements.
[50]. This argument, which is commonly made at the
United Nations with respect to the term “gender,” was also made in Rome.
Oosterveld, supra note 48.
[51]. For example, a position paper prepared by the
David M. Kennedy Center for International Studies raises several concerns:
If “gender,” as used in the ICC Draft Statute, in fact means something beyond “male” and “female,” the ICC will drastically restructure societies throughout the world. The possibilities include everything from hiring quotas to sexual orientation to abortion—hardly an appropriate agenda for a “criminal” court. The ICC was never intended, nor should it be used, to redefine and regulate all ‘socially constructed roles’ that exist throughout the globe. Remember: in the Arabic and French texts, the word gender is never used; instead the Arabic and French texts refer to “the two sexes.”
David M. Kennedy Center for International Studies, What’s the
Argument for “Gender Justice?” (unpublished position paper, undated) (on file with
author).
[52]. Report of the Fourth World Conference on Women,
Beijing, 4–15 September 1995, Addendum, Annex IV, U.N. Doc.
A/CONF.177/20/Rev.1, U.N. Sales No. 96.IV.13 (1996) [hereinafter Beijing Conference
Addendum]. This statement notes that a contact group was formed to examine the meaning of
the word “gender” and concluded “(1) the word ‘gender’ had been
commonly used and understood in its ordinary, generally accepted usage in numerous other
United Nations forums and conferences; (2) there was no indication that any new meaning or
connotation of the term, different from accepted prior usage, was intended in the Platform
for Action” and reaffirmed “that the word ‘gender’ as used in the
Platform for Action was intended to be interpreted and understood as it was in ordinary,
generally accepted usage.” Id.
[53]. Oosterveld, supra note
48. Several delegates referred to the Beijing
solution as a “non-definition.” Id.
[54]. On July 13, 1998, the Chair of the Working
Group asked Canada and Chile to try to find a solution with a small group of opposing
countries. This led to a series of informal meetings—among supportive states, among
opposing states, and between the two groups, in corridors and on the side of other
negotiations—outside the context of the Working Group. These are referred to in
diplomatic parlance as “informal informals.” Id.
[55]. Id.; see also Valerie Oosterveld,
Member of the Canadian Delegation to the 1998 U.N. Diplomatic Conference of
Plenipotentiaries on the Establishment of the International Criminal Court, Notes From
Informal Informal Discussions, July 13–14, 1998 (on file with author) [hereinafter
Author’s Notes From Informal Informal Discussions]; Summary Record of the 28th
Meeting, U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an
Int’l Crim. Court, Comm. of the Whole, 28th mtg., Agenda Item 11, ¶ 13, U.N. Doc.
A/CONF.183/C.1/SR.28 (1998) (statement of Kuwait to the Committee of the Whole on July 28,
1998).
[56]. The ICC negotiations followed United Nations
practice and worked by consensus. In consensus negotiations, those who oppose something are
usually in the better position to make gains toward their position (by remaining
intransigent), and those who support retention of something are forced to make proposals and
concessions in order to keep at least some of their ideas in the document, even if they
represent the majority of views. As a result, the negotiation process creates strong
pressures favoring “constructive ambiguity” over complexity, and the inherent
complexity of the definition of “gender” was reduced to two ideas: who was
covered, and in what context? See supra note 14 and accompanying text.
[57]. Author’s Notes From Informal Informal
Discussions, supra note 55; Steains,
supra note 34, at 374 n.52.
[58]. Author’s Notes From Informal Informal
Discussions, supra note 55. As an
explanation of why they insisted on the reference to “two” sexes, some state
representatives indicated that they feared that there might be five or more genders. This
refers to the “five genders” theory of the Christian Right, who believe that the
goal of certain feminist activists is to give members of the human family five genders from
which to choose (male, female, homosexual, lesbian, or transgendered) instead of two (male
or female). Doris E. Buss, Finding the Homosexual in Women’s Rights: The Christian
Right in International Politics, 6 Int’l Feminist J. Pol. 257, 569 (2004). This
also refers to the “herm” (hermaphrodites), “ferm” (female
hermaphrodites), and “merm” (male pseudo hermaphrodites) argument used by
conservative organizations in the Beijing Conference negotiations as a reason for
“demanding assurance that only two sexes would be recognized.” Sally Baden &
Anne Marie Goetz, Who Needs [Sex] When You Can Have [Gender]? Conflicting Discourses on
Gender at Beijing, in Feminist Visions of Development: Gender Analysis and Policy
19, 30 (Cecile Jackson & Ruth Pearson eds., 1998). These arguments were made in corridor
discussions and in “informal informal” negotiations.
[59]. Author’s Notes From Informal Informal
Discussions, supra note 55; Steains,
supra note 34, at 374 n.53.
[60]. Steains, supra note
34, at 374.
[61]. Beijing Conference Addendum, supra note
52, at 164. The term “dubious
interpretation” refers to the Holy See’s opposition to sexuality that is not
innate. Doris E. Buss, The Vatican and the Beijing Conference on Women, 7 Soc. &
Legal Studies 339, 348–49 (1998). The Holy See’s position was most recently
articulated in the Letter to the Bishops of the Catholic Church on the Collaboration of
Men and Women in the Church and in the World (Holy See, Vatican), July 31, 2004, at 2,
available at
http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20040731_collaboration_en.html.
[62]. Diane Otto, Lesbians? Not in My Country:
Sexual Orientation and the Beijing World Conference on Women, 20 Alternative L.J. 288,
89–290 (1995); Buss, supra note 61,
at 354. Conservative NGOs characterized “gender” as a “profoundly elastic
term, encapsulating a broad feminist rights strategy that includes abortion.” Doris
Buss & Didi Herman, Globalizing Family Values: the Christian Right in International
Politics 113 (2003) (citing Austin Ruse, Feminists at U.N.: Seek Redefinition of
Universal Human Rights, NewsMax.com, Nov. 13, 1998, at
http://www.newsmax.com/articles/?a=1998/11/13/63434).
Buss and Herman point out that these groups fear that the term “gender” challenges
an essential “woman-ness” or “man-ness,” which leads to the erasure of
“the two” sexes, with homosexuality as the inevitable outcome. Id. at
64.
[63]. This resulted in a footnote stating: “The
statement on the commonly understood meaning of the term ‘gender,’ presented at
the Fourth World Conference on Women by the President of the Conference, is reproduced in
Annex V to the present report.” Report of the United Nations Conference on Human
Settlements, U.N. Conference on Human Settlements, Istanbul, Turkey, June 3–14,
1996, Annex I, ¶ 46, U.N. Doc. A/CONF.165/14 (Aug. 7, 1996), available at
http://www.unhabitat.org/unchs/english/hagenda/ch-3d.htm
(last visited Feb. 13, 2005) [hereinafter Istanbul Declaration].
[64]. For example, note the Vienna Declaration and
Programme of Action, World Conference on Human Rights, June 14–25, 1993,
¶¶ 18, 38, 42, U.N. Doc. A/CONF.157/23 (1993). Another example is the Copenhagen
Declaration on Social Development and Programme of Action of the World Summit for Social
Development, in Report of the World Summit for Social Development, World
Summit for Social Development, Copenhagen, Denmark, Mar. 6–12, 1995, Commitments 5, 6,
8, ¶¶ 7, 16, 20, 22, 27, 28, 29, 30, 36, 45, 47, 53, 56, 70, 73, 74, 77, 83, 91,
U.N. Doc. A/CONF.166/9 (1995). One exception to this trend was the 2001 Durban Declaration
and Programme of Action, in Report of the World Conference Against Racism, Racial
Discrimination, Xenophobia and Related Intolerance, World Conference Against Racism,
Racial Discrimination, Xenophobia and Related Intolerance, Durban, S. Afr., Aug.
31–Sept. 8, 2001, at 5, 75, n.1, U.N. Doc. A/CONF.189/12 (2002) [hereinafter Durban
Declaration and Programme of Action], in which the Rome Statute definition of
“gender” was included.
[65]. For examples of such statements from the
General Assembly, see Comprehensive Implementation of and Follow-Up to the Vienna
Declaration and Programme of Action, U.N. ESCOR, Comm’n on Hum. Rts., 54th Sess.,
58th mtg., U.N. Doc. E/CN.4/RES/1998/78 (1998); Elimination of Domestic Violence Against
Women, G.A. Res. 58/147, U.N. GAOR, 58th Sess., Agenda Item 110, U.N. Doc. A/RES/58/147
(2004); Implementation of the Nairobi Forward-Looking Strategies for the Advancement of
Women, G.A. Res. 48/108, U.N. GAOR, 48th Sess., Agenda Item 111, U.N. Doc. A/RES/48/108
(1994); Rights of the Child, U.N. ESCOR, Comm’n on Hum. Rts., 55th Sess., 60th
mtg., U.N. Doc. E/CN.4/RES/1999/80 (1999); Strengthening of the Coordination of Emergency
Humanitarian Assistance of the United Nations, U.N. ESCOR, Substantive Sess. of 2004,
Agenda Item 5, U.N. Doc. E/2004/L.35 (2004); Women in Development, G.A. Res. 52/195,
U.N. GAOR, 52d Sess., Agenda Item 50, U.N. Doc. A/RES/52/195 (1998).
[66]. Beijing Conference Addendum, supra note
52, Annex IV.
[67]. Istanbul Declaration, supra note
63, ¶ 46.
[68]. Report of the Expert Group Meeting on the
Development of Guidelines for the Integration of Gender Perspectives into United Nations
Human Rights Activities and Programmes, U.N. ESCOR, Comm’n on Hum. Rts., 52d Sess.,
Agenda Items 9, 21, ¶ 13, U.N. Doc. E/CN.4/1996/105 (1995) [hereinafter 1995 Report
of the Expert Group Meeting].
[69]. Integrating the Human Rights of Women
Throughout the United Nations System: Report of the Secretary-General, U.N. ESCOR, 53d
Sess., ¶ 10, U.N. Doc. E/CN.4/1997/40 (1996) [hereinafter 1996 Report of the
Secretary-General]. Similarly, a study submitted by the Secretary-General in 2002
defined “gender” as referring to “the socially constructed roles as ascribed
to women and men, as opposed to biological and physical characteristics.” Report of
the Secretary-General on Women, Peace, and Security, U.N. SCOR, at 4, U.N. Doc.
S/2002/1154 (2002).
[70]. Guidelines on International Protection:
Gender-Related Persecution Within the Context of Article 1A(2) of the 1951 Convention and/or
its 1967 Protocol Relating to the Status of Refugees, U.N. High Comm’r for
Refugees, at 1, U.N. Doc. HCR/GIP/02/01 (2002) [hereinafter UNHCR Guidelines on
International Protection] (“These Guidelines are meant to provide legal interpretive
guidance for governments, legal practitioners, decision-makers and the judiciary as well as
UNHCR staff carrying out refugee status determination in the field.”).
[71]. Id. ¶ 3.
[72]. Review of Reports, Studies and Other
Documentation for the Preparatory Comm. and the World Conference, World Conference
Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance, Geneva,
Switzerland, July 30–Aug. 10, 2001, ¶ 10, U.N. Doc. A/CONF.189/PC.3/5 (2001)
[hereinafter Review of Reports].
[73]. World Bank, Engendering Development Through
Gender Equality in Rights, Resources and Voice, A World Bank Policy Research Report 2
(2001), available at
http://www.wds.worldbank.org/servlet/WDS_IBank_Servlet?pcont=details&eid=000094946_01020805393496
(last visited Feb. 13, 2005).
[74]. OSAGI, Gender Mainstreaming, Concepts and
Definitions, at
http://www.un.org/womenwatch/osagi/conceptsandefinitions.htm
(last visited Feb. 13, 2005). This definition is also used by the U.N. Mission in the
Democratic Republic of Congo (“MONUC”). MONUC, at
http://www.monuc.org/gender/equality.aspx
(last visited Feb. 13, 2005).
[75]. See WHO, Gender and Reproductive
Rights, Glossary, at
http://www.who.int/reproductive-health/gender/glossary.html
(last visited Feb. 13, 2005).
[76]. See U.N. Environment Programme,
Project Formulation, Approval, Monitoring and Evaluation Manual, at ch. 13.1,
available at http://www.unep.org/Project_Manual/13.1.asp
(last visited Feb. 13, 2005).
[77]. See U.N. Development Fund for Women and
the United Nations Inter-Agency Project on Human Trafficking in the Mekong Sub-Region,
Trafficking in Persons: A Gender and Rights Perspective, Briefing Kit, Sheet 4,
at http://www.unifem-eseasia.org/resources/others/traffkit.pdf
(last visited Feb. 13, 2005).
[78]. See UNDP, Guide to Developing a UNDP
Country Gender Briefing Kit, at
http://www.undp.org/gender/docs/UNDP_Gender_Briefing_Kit.pdf
(last visited Feb. 13, 2005). The UNDP has also defined “gender” as referring to
the “comparative or differential roles, responsibilities and opportunities for women
and men in a given society.” UNDP, Gender Mainstreaming Manual and Information
Pack, at http://www.undp.org/gender/docs/GM_INFOPACK/GMGlossary1.doc
(last visited Feb. 13, 2005).
[79]. See ILO and South-East Asia and the
Pacific Multidisciplinary Advisory Team (“SEAPAT”), Online Gender Learning
Information Module, Unit 1, at
http://www.ilo.org/public/english/region/asro/mdtmanila/training/homepage/mainmenu.htm
(last visited Feb. 13, 2005).
[80]. U.N. Division for the Advancement of
Women, The Role of Men and Boys in Achieving Gender Equality, Report of the Expert Group
Meeting, at 14, n.2, U.N. Doc. EGM/MEN-BOYS-GE/2003/REPORT (2004), available at
http://www.un.org/womenwatch/daw/egm/men-boys2003/reports/Finalreport.pdf
[hereinafter 2003 Expert Group Meeting].
[81]. Baden & Goetz, supra note
58, at 29 (citing Laura Nicholson,
Interpreting Gender, 29 Signs 79 (1994)).
[82]. 1995 Report of the Expert Group Meeting,
supra note 68, ¶ 13. This definition
defines “gender” from the point of view of women, but most U.N. definitions define
“gender” as it applies to both men and women (sometimes also explicitly mentioning
girls and boys). “Gender” should always be defined as applying to both women and
men, in order not to conflate “gender” with “women” and therefore
substantially narrow the definition of “gender.”
[83]. 1996 Report of the Secretary-General,
supra note 69, ¶ 10.
[84]. OSAGI, supra note
74.
[85]. 2003 Expert Group Meeting, supra
note 80, at 14 n.4 (referring to gender norms as
“[s]ocial and cultural expectations”); U.N. Environment Programme, supra
note 76 (noting that “gender” roles
“change from one place and culture and across time”); Review of Reports,
supra note 72, ¶ 10 (stating that
“gender” depends on socio-economic, political, and cultural context); UNHCR
Guidelines on International Protection, supra note
70, ¶ 3 (referring to “socially or
culturally constructed and defined identities, status, roles and responsibilities”);
ILO and SEAPAT, supra note 79 (noting
that social differences between men and women vary widely within and across cultures and
treating “gender” as a “socio-economic variable for analysing roles,
responsibilities, constraints, opportunities, and needs of men and women”); WHO,
supra note 75 (referring to
“economic, social and cultural attributes and opportunities associated with being male
and female in a particular point in time”).
[86]. Review of Reports, supra note
72, ¶ 10; OSAGI, supra note
74. The World Bank definition approaches the
multi-dimensional nature of “gender” in a slightly different manner: “Like
race, ethnicity and class, gender is a social category that largely establishes one’s
life chances, shaping one’s participation in society and in the economy. Some societies
do not experience racial or ethnic divides, but all societies experience gender
asymmetries—differences and disparities—to varying degrees,” World Bank,
supra note 73, at 24.
[87]. 1995 Report of the Expert Group Meeting,
supra note 68, ¶ 13; 1996 Report
of the Secretary-General, supra note 69, ¶ 10; 2003 Expert Group Meeting,
supra note 80, at 14, n.4; UNDP,
supra note 78, at 17; U.N. Environment
Programme, supra note 76; ILO and SEAPAT,
supra note 79; OSAGI, supra note
74; WHO, supra note
75; World Bank, supra note
73, at 24.
[88]. UNHCR Guidelines on International
Protection, supra note 70, ¶ 3
(stating that “[g]ender is not static or innate but acquires socially and culturally
constructed meaning over time”).
[89]. 2003 Expert Group Meeting, supra
note 80, at 14 n.4.
[90]. World Bank, supra note
73, at 24.
[91]. The examples above have focused on the United
Nations. Other multilateral institutions have also adopted definitions of
“gender,” such as the Organization for Economic Cooperation and Development:
“The term gender refers to the economic, social, political, and cultural
attributes and opportunities associated with being male and female . . . . The nature of
gender definitions (what it means to be male or female) and patterns of inequality vary
among cultures and change over time.” Organization for Economic Cooperation and
Development, Development Assistance Comm., DAC Guidelines for Gender Equality and
Women’s Empowerment in Development Co-operation 12–13 (1999), available at
http://www.oecd.org/dataoecd/56/46/28313843.pdf
(last visited Feb. 13, 2005).
[92]. Charlesworth, Feminist Methods,
supra note 8, at 394; Charlesworth,
Proceedings, supra note 42, at
207.
[93]. Charlesworth, Feminist Methods,
supra note 8, at 394.
[94]. Charlesworth & Chinkin, supra note
7, at 335. Charlesworth has also said that the
result of such elision between “sex” and “gender” is a diminishing of
the radical potential of both sexing and gendering international law. Charlesworth,
Proceedings, supra note 42, at
207.
[95]. Charlesworth & Chinkin, supra note
7, at 3.
[96]. Cossman, supra note
2, at 283.
[97]. Id. at 284.
[98]. Philips, supra note
8, at 234 n.14.
[99]. In that case, the Tribunal examined the
patriarchal nature of the Bosnian Muslim society in Srebrenica, and found that the Bosnian
Serb forces were aware that destruction of a sizable number of men would “inevitably
result in the physical disappearance of the Bosnian Muslim population at Srebrenica”
because these men would be officially listed as missing and their spouses would be unable to
remarry (having fidelity to a missing husband) and consequently, would not have new
children, Prosecutor v. Radislav Krstic, Case No. IT-98-33-T, Trial Chamber, ¶ 93
nn.193 & 196, ¶ 595 (Aug. 2, 2001). “The physical destruction of the men
therefore had severe procreative implications for the community.” Prosecutor v.
Radislav Krstic, Case No. IT-98-33-A, Appeals Chamber, ¶ 30 (Apr. 19, 2004). While
Krstic was a case considering the crime of genocide, if “gender” was no
more than “sex” under the ICC’s crimes against humanity, then similar factual
circumstances might result in the ICC overlooking that the surviving women were victims of
persecution as much as the dead men were, because a socio-cultural analysis is key to
exposing this fact.
[100]. See supra note
58 and accompanying text.
[101]. Under the Rome Statute, the ICC is required
to apply applicable treaties and the principles and rules of international law, including
those on treaty interpretation. Rome Statute, supra note
1, art. 21. Following this approach, the ICC may
examine the preparatory work of the Rome Statute and the circumstances of its conclusion, if
an interpretation “in good faith in accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in light of its object and purpose” still
leaves the meaning “ambiguous or obscure.” Vienna Convention on the Law of
Treaties, opened for signature May 23, 1969, arts. 31, 32, Hein’s No. KAV 2424,
1155 U.N.T.S. 331. It is highly likely that the ICC will need to consider the preparatory
work in order to fully understand and interpret the definition of “gender.”
[102]. Rome Statute, supra note
1, art. 21(1)(b).
[103]. See Hilary Charlesworth, Not
Waving but Drowning: Gender Mainstreaming and Human Rights in the United Nations, in
this Volume.
[104]. See 1995 Expert Group Meeting,
supra note 68, ¶ 13; 1996 Report
of the Secretary-General, supra note 69, ¶ 10; Review of Reports,
supra note 72, ¶ 10; UNHCR
Guidelines on International Protection, supra note
70, art. I, ¶ 3; World Bank, supra
note 73, at 24.
[105]. Judith Butler, Gender Trouble: Feminism and
the Subversion of Identity 7 (1990).
[106]. See Cossman, supra note 2, at
284. By subversive possibilities, she means its ability to trouble and challenge the
inevitability of the relationship between gender and sex, and the interpretations that flow
from a delinking of these constructs that might “disrupt and fragment the dominant
cultural narrative.” See id. at 282–83. Charlesworth and Chinkin
raise a related point: “If we attend to the constitutive role of the law and society in
forming the ‘naturally’ sexed person, the concepts of ‘sex’ and
‘biological difference’ can be seen to have constructed, contingent and political
elements,” with the major difference between “sex” and “gender”
being “their focus on different elements of dichotomies such as body/mind and
nature/culture.” Charlesworth & Chinkin, supra note
7, at 3–4.
[107]. Cossman, supra note
2, at 284.
[108]. Report of the Special Rapporteur on
Violence Against Women, supra note 10, ¶ 19.
[109]. Copelon, supra note
5, at 236–37; Bedont & Hall Martinez,
supra note 11, at 3; Boot, supra
note 11, at 172.
[110]. Report of the Special Rapporteur on
Contemporary Forms of Slavery, supra note 11, ¶ 26.
[111]. 1995 Report of the Expert Group
Meeting, supra note 68, ¶ 10;
Review of Reports, supra note 72,
¶ 10; OSAGI, supra note 74; UNDP,
supra note 78, at 17; World Bank,
supra note 73, at 24.
[112]. 1995 Report of the Expert Group
Meeting, supra note 68, ¶
13.
[113]. U.N. Environment Programme, supra
note 76.
[114]. ILO and SEAPAT, supra note
79.
[115]. Steains, supra note
34, at 374.
Eventually, the language “within the context of society” was settled upon, with delegations on both sides of the issue satisfied that there was sufficient flexibility as well as precision inherent in the sentence. This effectively leaves the term open for the future Court to interpret and apply to the circumstances before it, as appropriate . . . . At the same time, the reference to “within the context of society” satisfied those delegations that wanted the definition to encapsulate the broader