If you haven’t heard about the new treaty on crimes against humanity that the United Nations has in the works, you’re not alone. Most haven’t.
What you should know is that if this treaty goes forward for adoption in its current draft form, only some – not all – people will be protected from crimes against humanity like massacres, rape, torture and persecution. This is because the treaty adopts an outdated definition of gender that some states will inevitably use to shirk their responsibility for addressing gender-based crimes.
We need this treaty, first of all, because it could help bring such atrocities to light and perpetrators to justice. The only permanent court in existence for prosecuting such crimes, the International Criminal Court (ICC), doesn’t have a mechanism for interstate cooperation, and few states have crimes against humanity incorporated into their domestic legislation.
The problem is that the draft treaty adopts the definition of gender from the Rome Statute, which established the ICC, stating: “it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society.”
On its own, the definition does not make clear who is protected. While it’s understood to be inclusive of all gendered crimes that meet the threshold of persecution, there has never been a successful prosecution at the ICC. Not surprisingly, no other mechanism has adopted this opaque definition.
To understand how this definition of gender came about we have to go back about 20 years. During the 1990s, women’s rights advocates rallied for the term “gender” instead of “sex” to be listed alongside race, ethnicity, religion and other protected groups from persecution. A small, socially conservative opposition objected, fearing the term “gender” would more broadly affirm LGBTI rights as human rights. They also wanted to limit the scope of women’s rights.