With the launch of its policy paper on gender persecution, the International Criminal Court (ICC)’s Office of the Prosecutor provided a tool to hold accountable the perpetrators of gender-based violence, including against lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) people.
The International Criminal Court (ICC) is mandated to investigate and prosecute genocide, war crimes, crimes against humanity, and the crime of aggression. The Rome Statute, which governs the ICC, describes crimes against humanity as including “persecution,” defined as the “intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity,” including on the basis of gender.
The Rome Statute further defines gender as “the two sexes, male and female, within the context of society.” This definition of gender has been a source of confusion. On the one hand, it refers to a binary of “male and female.” On the other hand, it refers to the social context surrounding gender, implying that gender is more than just two sexes.
In its new policy paper, the ICC’s Office of the Prosecutor (OTP) clarifies the meaning of gender under international criminal law, unequivocally stating that gender is socially constructed. The OTP writes that gender “refers to sex characteristics and social constructs and criteria used to define maleness and femaleness, including roles, behaviors, activities and attributes.” Social constructs used to define gender include “sexual orientation, gender identity, and gender expression.”
The policy paper on gender persecution is an important step forward for holding perpetrators accountable when they commit violence against people due to their perceived sexual orientation, gender identity or expression, or sex characteristics. It also allows for a deeper understanding of why LGBTIQ people are targeted for violent crimes. By acknowledging that gender is constructed, it is possible to see that perpetrators use violence against LGBTIQ people as punishment for transgressing gender norms. Determining whether a crime amounts to gender persecution involves examining the perpetrator’s intent, which may “overlap with or exacerbate existing social constructs or criteria used to define gender, or may represent an effort to impose new ones.” The OTP identifies numerous countries, including Afghanistan, Colombia and Yemen, where gender persecution targeting LGBTIQ people may have taken place.
The ICC’s gender persecution policy paper is a groundbreaking step for gender justice under international criminal law. Recognition of LGBTIQ people’s human rights requires accountability. Gender persecution is all too common, but the policy paper sends an important message that it cannot persist with impunity.