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New Draft of 'Crimes Against Humanity' Treaty Affirms Protection for Women and LGBTIQ Persons. The Fight Wasn’t Easy—and It Isn’t Over Yet

Whether the treaty makes its way into law or not, one thing is clear: History will remember that all of us working together can make a difference, because all of us, not some of us, have rights that must be protected

Earlier this month, the International Law Commission (ILC) formally recommended a final draft of the new crimes against humanity (CAH) treaty for adoption by states—a treaty that promises to bring justice to victims of atrocities. (Photo: MADRE)

Earlier this month, the International Law Commission (ILC) formally recommended a final draft of the new crimes against humanity (CAH) treaty for adoption by states—a treaty that promises to bring justice to victims of atrocities. (Photo: MADRE) 

When it comes to the letter of the law, a few words can mean the difference between having your rights protected – or not.

Earlier this month, the International Law Commission (ILC) formally recommended a final draft of the new crimes against humanity (CAH) treaty for adoption by states—a treaty that promises to bring justice to victims of atrocities.

Previous drafts of the treaty adopted a 20-year-old definition of gender that isn’t explicit on whether it includes LGBTIQ persons, and more broadly, women and men persecuted for not following oppressive dress codes or gendered roles prescribed by the perpetrators who abuse them.

There’s a long history to this gender definition, how it came about, how it has come to be interpreted, and how we’ve ultimately settled the inclusion debate through advancements over the last twenty years of international law: You cannot persecute someone because of their gender, including when it is based on sexual orientation, gender identity or sex characteristics.

The final draft removed this outdated definition -- but getting the treaty to this point wasn’t easy. It took immensely coordinated campaigning from MADRE, OutRight Action International and the Human Rights and Gender Justice Clinic at CUNY Law School.

The last twenty years of international law seemed to have settled thedebate. The bottom line: You cannot persecute someone because of their gender, including when it is based on sexual orientation, gender identity or sex characteristics.

There’s never a justification for persecution. But not everyone agrees with international law. Fundamentalists who promulgate fear justify discrimination against women and LGBTIQ people by arguing that gender should be defined as male and female, conflating the term with sex and reinforcing a false binary. Their argument is that giving equal rights to women and LGBTIQ people destroys “feminine values.” Their primary fear is that women will break out of “traditional roles”, such as mothers and caretakers, and instead seek an education or join the workforce. (Seems they believe that woman can’t do both). They try to erase LGBTIQ rights from the history books altogether since their very existence is inconvenient to their rigid gender narrative. Such distorted prescriptions also have consequences for men.

Last year, the International Law Commission (ILC), the body charged with the drafting, opened the new treaty to UN, state, and civil society comments. At first, our request to remove the outdated definition of gender was met with a chilly response from treaty supporters. The pushback was simple: the more changes to the language, the more risk that states won’t adopt the treaty. Reasoning like this has consistently led to the de-prioritization of gender concerns in conflict, from sexual and reproductive health care to LGBTIQ-tailored responses.

Can civil society organizations make a difference in treaty negotiations?

Just ask Ray Acheson. She led the advocacy coalition on the Arms Trade Treaty and managed to secure a legally binding provision on gender-based violence. As Ray tells it, “At the beginning, we were getting questions [from governments] like, ‘What does gender-based violence have to do with the arms trade? I don’t get the connection.’ By the end, we had a hundred states saying that it had to be in the treaty and it had to be legally binding.”

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MADRE, OutRight and CUNY Law followed suit and organized a world-wide campaign that called for the outdated definition of gender to be removed or revised in the new treaty.

Time was against us. We had one year to rally states, UN agencies, and civil society organizations to make submissions. We spent the first six months organizing experts’ briefings in New York and London to work out our legal arguments on gender, sexual slavery, and other key components in the treaty.

Ultimately, we were able to pull together seven briefings with key receive feedback on our recommendations and legal reasoning developed from the experts’ workshops. The first briefing was held with members of the International Law Commission, the second two with states, and the last four—each on a different subject—with civil society groups from around the world. We also distributed a toolkit in four languages to ensure that there was broad civil society input for the ILC on the gender language and other key provisions in the draft treaty.

CUNY Law School then compiled feedback from the workshops, briefings and consultations, for a submission to the ILC that offered a holistic legal analysis and recommendation to either remove or revise the gender definition in the draft CAH treaty. We then circulated the arguments and recommendations in five languages as a sign-on letter.

Nineteen out of 33 declared that the rights of women and LGBTIQ people are protected under international criminal law and that the pending treaty must reflect this principle. No state spoke against gender rights.

An astounding twenty-four UN Special Rapporteurs and other experts signed onto another submission that also echoed our legal reasoning. About 600 organizations and academics representing over 100 countries signed our open letter.

At least nine other civil society submissions also answered our call, including from 60 human rights organizations in Africa led by the Southern Africa Litigation Center, twelve transgender rights groups, two intersex groups, and Human Rights Watch.

The final result: the ILC formally adopted the draft treaty with the recommendation to remove the definition from the draft convention, citing to our arguments.

But the campaign isn’t over. The ILC will hand off the crimes against humanity draft treaty to the UN General Assembly this autumn, where states will debate its language and decide its fate.

Whether the treaty makes its way into law or not, one thing is clear: History will remember that all of us working together can make a difference, because all of us, not some of us, have rights that must be protected.

Lisa Davis

Lisa Davis is a Legal Advisor for MADRE and an Associate Professor of Law for CUNY Law School.

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