On hope, unintended consequences, and risks: Shedding the Rome Statute’s definition of ‘gender’ in the Crimes Against Humanity Convention

Abstract

In the past twenty-five years, the 1998 Rome Statute’s definition of ‘gender’ has been scrutinized in academic circles, in policies and practice of the International Criminal Court (ICC), and more recently in the United Nations headquarters in New York, where states have committed to negotiating a convention to prevent and punish crimes against humanity. However, these ‘gender’ conversations in The Hague and New York have moved in divergent directions. In the ICC, the prevailing view is that the Rome Statute defines ‘gender’ in social terms. In New York, views are mixed: some states recognize that it accommodates a social conception of gender, others seem convinced that it conflates ‘gender’ with ‘biological sex’. This article seeks to bring these two legal processes into conversation; to correct an enduring misperception that the Rome Statute defines ‘gender’ in biological terms; and to sound a cautionary note about how that definition is represented in the Crimes Against Humanity Convention’s travaux préparatoires. Particular attention is paid to the ICC’s 2024 Al Hassan judgment, being the ICC’s first trial judgment on gender-based persecution, and 2025 Afghanistan arrest warrants, which include the Court’s first charges for gender-based persecution against LGBTIQ+ people.