by Rosemary Grey
Rosemary Grey joins Beyond The Hague today with a post that questions the ‘constructive ambiguity’ of the gender language in Article 7(3) of the Rome Statute and asks whether persecution on the grounds of sexual orientation can be considered a crime under the jurisdiction of the International Criminal Court. Rose is a PhD Candidate at the School of Social Sciences, Faculty of Arts and Social Sciences, University of New South Wales. She can be reached at email@example.com and here.
The Sochi Games has focused international attention on Russia’s human rights record, particularly its laws that discriminate and sow prejudice against lesbian, gay, bisexual, transgender or intersex (LGBTI) people. UN Secretary-General Ban Ki-moon nodded at this issue in his address to the Olympic Committee on February 6, stating:
We must all raise our voices against attacks on lesbian, gay, bisexual, transgender or intersex people. We must oppose the arrests, imprisonments and discriminatory restrictions they face.
Ban’s call to action reflects the fact that in recent years, the UN has become increasingly vocal in promoting LGBTI rights. For example in 2011, the Office of the High Commissioner for Human Rights (OHCHR) published its first report on discrimination and violence on the grounds of sexual orientation and gender identity. The report documents targeted killings, rapes, and assaults of LGBTI people, and highlights decisions and general comments of treaty bodies that confirm that discrimination on the ground of sexual orientation is prohibited under international human rights law. Building on this momentum, in 2013 the Human Rights Office launched the “Free and Equal” campaign, aimed at combating discrimination against LGBTI people worldwide.
Meanwhile, discrimination against LGBTI people under domestic law continues in many states, and in some places is getting worse. Russia is not an isolated example: several States Parties to the Rome Statute are also moving backwards on LGBTI rights. For example, Uganda, which in 2004 became the first State Party to refer a situation to the ICC and in 2010 had the privilege of hosting the Rome Statute Review Conference, is in the process of enacting legislation that prescribes life imprisonment for people convicted of homosexual acts. Nigeria, another State Party, has recently enacted anti-homosexuality laws that UN High Commissioner for Human Rights Navi Pillay describes as “draconian.”
In this context, it is timely to consider what role – if any – the ICC might play in ending impunity for violence against LGBTI people. Importantly, the increasing international recognition of LGBTI rights is not just a compelling sideshow to this question about the limits of the Rome Statute; it may actually inform the Court’s interpretation of the Statute per Article 21(3), as explained below. Feminist scholars have offered thoughtful commentary on these issues in the past, and it is possible to build on that analysis in light of recent developments inside and outside the Court.
For these reasons, it is a good time to re-open question of whether persecution on the ground of sexual orientation can be prosecuted under the Rome Statute.
How is “persecution” defined in the Rome Statute?
Article 7(1)(h) of the Rome Statute recognizes as a crime against humanity:
Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3 [see below], or other grounds that are universally recognized as impermissible under international law …
While this provision does not explicitly criminalize persecution on the ground of sexual orientation, there is arguably scope to characterize such conduct as “gender” persecution, or persecution on “other grounds” (below). Like all crimes against humanity, the acts must satisfy the chapeau requirements in Article 7, meaning they must be committed as part of a “widespread or systematic attack” against a civilian population, pursuant to a “state or organizational policy.”
Article 7(1)(h) further specifies that the acts must be committed “in connection with” another crime in the ICC’s jurisdiction, in order to constitute “persecution” under the Rome Statute. This caveat was included “to avoid sweeping interpretation criminalizing all discriminatory practices.” Its effect is to limit the types of violence against LGBTI people that could potentially constitute “persecution” under Article 7(1)(h). For example, discriminatory marriage laws may not, by themselves, constitute “persecution”. This might allay the concerns of states that would not be prepared to remove all laws discriminating against LGBTI people, but might accept that targeted killings, rapes, and assaults of LGBTI people, such as those documented in the OHCHR report, constitute “persecution”.
The “gender persecution” option
Article 7(3) explains that for the purposes of the Rome Statute,
“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.
Accounts of the Rome Statute negotiations explain how this definition, which Theo Van Boven describes as “the most puzzling and bizarre language ever included in an international treaty,” came about. Previous instruments of international criminal law recognized persecution on “political, racial or religious” grounds only. Many states and NGOs believed the Rome Statute should recognize persecution on an expanded range of grounds including “gender,” referring to socially constructed ideas about men’s and women’s roles.
This proposal met fierce opposition from the Vatican and several religious states and NGOs, who were concerned that “gender” included sexual orientation. This concern is documented in accounts of the negotiations and there is a glimpse of it in the Official Records where the delegate from Azerbaijan asks, in relation to the proposed inclusion of “gender” as a ground of persecution:
Did that provision 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?
The debate over recognising “gender” as a ground of persecution merged with a debate over the use of this term in Article 21(3), specifying that the Court must apply the Rome Statute without adverse distinction on the ground of “gender”. These debates continued until the delegates eventually settled on the definition of “gender” excerpted above. Valerie Oosterveld recalls that the negotiators deliberately chose this definition because it was vague enough to satisfy both sides: a negotiating tactic known as ‘constructive ambiguity’.
The Court is yet to rule on whether persecution on the ground of “gender,” as defined in the Rome Statute, includes persecution on the ground of sexual orientation. Some scholars doubt that “gender” persecution includes persecution on the ground of sexual orientation;  some are certain it does not. However, others argue it does. For example, Barbara Bedont argues:
Contrary to the wishes of some delegations that opposed the term ‘gender,’ the term may include sexual orientation … For example, in most if not all societies, the role of women is primarily based on their ascribed functions as wives and mothers. Women that diverge from this stereotype often suffer discrimination. This would constitute persecution on the grounds of gender.
Oosterveld considers it at least arguable that “gender” persecution includes persecution on the ground of sexual orientation, for three reasons. First, the Statute does not expressly say otherwise. Second, it is “dubious” to argue that an ambiguity should be resolved in favour of discrimination. And third, she sees the concepts of gender and sexual orientation as inextricably linked, particularly in the context of persecution, as homosexuals are often targeted as punishment for defying traditionally defined concepts of masculinity and femininity.
A difficulty in this “gender persecution” argument is that Article 22(2) of the Rome Statute states that:
The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.
Thus, in order to successfully characterize persecution on the ground of sexual orientation as “gender” persecution, the Prosecutor would have to persuade the Court that this complies with a strict construction of Article 7(1)(h). The Prosecutor would also need to stress that persecution on the ground of sexual orientation is not analogous to “gender” persecution; rather, it is “gender” persecution, in the sense of being based on ideas about what it means to be “male and female, within the context of society.”
An evolving definition of “gender”
It has also been argued that if “gender” persecution does not already include persecution on the ground of sexual orientation, in time that might change. This is because Article 21(3) of the Rome Statute mandates that the Court’s interpretation and application the Statue must be:
consistent with internationally recognized human rights and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.
With this provision in mind, in 1999 Bedont argued that as the emerging prohibition on discrimination on the ground of sexual orientation under international human rights law grew stronger, the ICC would eventually be required to interpret “gender” in article 7(1)(h) to include sexual orientation. From that perspective, it is significant that several treaty bodies have now confirmed that discrimination on the basis of sexual orientation is prohibited under international human rights law. For example, it constitutes discrimination on the basis of “other status” per Article 26 of ICCPR and Article 2(2) of ICESCR.
In other cases where Article 21(3) has been applied, the ICC has looked at international and regional human rights treaties – and other courts’ interpretations of those treaties – to determine what constitutes “internationally recognized human rights.”  Using that same method, the Court could refer to decisions of treaty bodies to find that the right against discrimination on the basis of sexual orientation is an “internationally recognized human right.”
Importantly, the Court has already acknowledged that Article 21(3) prohibits discrimination on the grounds of sexual orientation. In the Lubanga reparations decision, Trial Chamber I stated:
Under Article 21(3) of the Statute, reparations shall be granted to victims without adverse distinction on the grounds of gender, age, race, … sexual orientation, national, ethnic or social origin, wealth, birth or other status.
The Chamber did not explain why Article 21(3) requires that reparations be granted without adverse distinction on the ground of sexual orientation. It referred only to principle 25 of the UN Basic Principles on Reparations, which states that the application of those principles must be “consistent with international human rights law” and be “without any discrimination of any kind or on any ground, without exception.” Presumably, the Chamber drew on this principle to conclude that reparations must be granted without adverse distinction on the ground of sexual orientation because sexual orientation counts as “gender” or “other grounds” in Article 21(3), or because the right against discrimination on the basis of sexual orientation is an “internationally recognized human rights” for the purposes of that Article. Further clarity from the Chamber on this issue would be useful.
In any case, the finding that Article 21(3) prohibits adverse distinction on the basis of sexual orientation arguably supports a broad interpretation of “gender” in Article 7(1)(h) which includes sexual orientation. That is because an interpretation of “gender” persecution that excludes persecution on the ground of sexual orientation would impact adversely on LGBTI people.
Alternatively, the finding that Article 21(3) prohibits adverse distinction on the basis of sexual orientation suggests that persecution on the ground of sexual orientation could count as persecution on “other grounds” per Article 7(1)(h). However, there are some additional difficulties with running this argument, as explained below.
The Office of the Prosecutor’s new gender policy
If the ICC Office of the Prosecutor thinks that persecution on the ground of sexual orientation counts as “gender” persecution, it does not say so directly in its new draft Policy Paper on Sexual and Gender Based Crimes, released in February 2014. In relation to the definition of “gender,” the draft policy notes that:
The drafters of the Statute decided to refer to gender‚ “within the context of society”, which acknowledges the social construction of gender roles and norms attributed to men and women, which the Office will apply and interpret in accordance with internationally recognised human rights pursuant to article 21(3).
The only reference to sexual orientation in the draft policy comes in the footnote to a comment explaining that Article 21(3) obliges the Office to understand how the intersection of sex, gender, race and other identities may give rise to multiple forms of discriminations and social inequality. The footnote refers to recent efforts by the UN to put an end to violence and discrimination on the basis of sexual orientation or gender identity. It is not clear how the Office sees these efforts by the UN as fitting into its own charging strategy.
As flagged above, there may be scope to characterize persecution on the grounds of sexual orientation as persecution on “other grounds,” per Article 7(1)(h) of the Rome Statute. The difficulty here is that Article 7(1)(h) requires those “other grounds” to be “universally recognized as impermissible under international law” – a very high threshold to satisfy. The drafters reportedly intended the phrase “universally recognised” to mean “widely recognised,” rather than recognised by all States, without exception.  Even so, in a world where consensual same-sex conduct is criminalised in 76 States and is subject to the death penalty in at least five, and where there is no international treaty expressly prohibiting persecution on the grounds of sexual orientation, it would be an uphill battle to argue that persecution on the grounds of sexual orientation is “widely recognised” as impermissible under international law.
A final option would be to prosecute violence directed at LGBTI people using other crimes in Article 7 of the Rome Statute, for example murder or rape, without bringing any charges of “persecution.” Evidence that the victims were targeted because of their sexual orientation could help establish a context for these other crimes. Such evidence could also be useful in proving the chapeu elements of crimes against humanity, if it indicated that the crimes were not isolated events but were part of a “widespread or systematic attack,” pursuant to a “state or organizational policy” of violence against LGBTI people. This “policy” may include a deliberate failure by authorities to take action, if such inaction was aimed at encouraging the attack. Thus, a deliberate failure by state authorities to investigate or prosecute reported murders, “corrective rapes” or assaults of LGBTI people may potentially count as a “policy,” if the purpose of that inaction was to encourage the violence to continue.
It is not impossible to prosecute persecution on the grounds of sexual orientation using the Rome Statute, however there are some significant legal obstacles (not to mention political obstacles, which have not been the focus of discussion here). However, the increasing international recognition of LGBTI rights outside the Court might help to remove some of these obstacles. This puts the ICC in a stronger position to end impunity for crimes that should (to quote the Rome Statute preamble) “deeply shock the conscience of humanity.”
*Thanks to Sally Shrubb for her input.
 E.g. Oosterveld, Valerie. “The Definition of Gender in the Rome Statute of the International Criminal Court: A Step Forward or Back for International Criminal Justice.” Harvard Human Rights Journal 18 (2005): 55-84; Bedont, Barbara. “Gender-Specific Provisions in the Statute of the International Criminal Court.” In Essays on the Rome Statute (Vol. 1), edited by Favlia Lattanzi and William Schabas. 183-210. Ripa di Fagnano Alto: il Sirente, 1999, pp. 187-188.
 Von Hebel, Herman, and Darryl Robinson. “Crimes within the Jurisdiction of the Court.” In The International Criminal Court: The Making of the Rome Statute, edited by Roy S Lee. 79-126. The Hague: Kluwer Law International, 1999, p. 101 (emphasis added).
 Oosteveld supra note 2, p. 57; see also Von Hebel and Robinson supra note 4, p. 101, footnote 71; Oosterveld, Valerie. “Prosecuting Gender-Based Persecution as an International Crime” in Anne-Marie de Brouwer, Charlotte Ku, Renée Romkens and Larissa van den Herik (eds.), Sexual Violence as an International Crime: Interdisciplinary Approaches (Antwerp: Intersentia, 2012) 57-78, p.67.
 Bedont supra note 2, p. 187-188. See also Copelon, Rhonda. “Gender Crimes as War Crimes: Integrating Crimes against Women into International Criminal Law.” McGill Law Journal 46, no. 1 (2000): 217-40. p.237.
 Young v. Australia, Communication No. 941/2000, CCPR/C/78/D/941/2000 [10.4]. The Committee explained that distinctions on the grounds of sexual orientation which are not based on “reasonable and objective criteria” are prohibited under the Covenant [10.4]. See also X v Colombia, Communication No. 1361/2005,CCPR/C/89/D/1361/2005 [7.2].
 For example in the situation in the DRC, the Appeals Chamber referred to the Article 14 of the ICCPR to interpret Article 82 of the Rome Statute: ICC-01/04-168 . In the Lubanga trial judgment, Judge Odio Benito referred to articles in the Convention on the Rights of the Child, The ILO Convention on Worst Forms of Child Labour; the Optional Protocol to the Convention on the Rights of the Children involvement of children in armed conflict, and African Charter of Human Rights, to interpret Article 8(2)(b)(xxvi) of the Rome Statute: ICC-01/04-01/06-2842 Judge Odio Benito’s separate dissenting opinion, -. In the Lubanga decision on victim participation, Trial Chamber I referred to the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, and the Convention on the Rights of the Child to define the term “victim” in relevant provisions of the Rome Statute and Rules of Procedure and Evidence: ICC-01/04-01/06-1119 -. In the Bemba arrest warrant decision, Pre-Trial Chamber II referred to the European Court of Human Rights’ interpretation of article 5(1)(c) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the Inter-American Court of Human Rights’ interpretation of Article 7 of the American Convention on Human Right, to interpret the “reasonable grounds to believe” standard in Article 58(1)(a) of the Rome Statute: ICC-01/05-01/08-14-tENG .