In June 2019, the International Law Commission (ILC) officially adopted a new draft of the crimes against humanity (CAH) treaty that removed the definition of gender. This success affirmed that the rights of women, LGBTIQ persons, and other marginalized groups are protected in international law.
The Commission has now released its final report for the year, which includes the latest draft of the CAH treaty and the Commission’s legal commentary. The latest draft does not include the opaque definition of gender. While the draft treaty itself is crucial, the legal commentary serves as the official record of the Commission’s thought process and findings. This commentary is used to inform future work on the treaty and can be considered as legal interpretation on this topic for years to come.
The success of our effort is very apparent in the commentary. The Commission recognized that international law has developed since the gender definition was created in the Rome Statute, and that many international authorities and the jurisprudence of international courts and tribunals understand gender as a social construct and not biologically determined. The Commission also refers to the work of the UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity in providing a nuanced understanding of gender identity. While the Commission does not refer to sexual orientation, gender identity and expression, or sex characteristics in the draft treaty, it is still very significant that diverse expressions and constructions of gender are featured in the commentary.
We now turn our focus to the UN General Assembly’s Sixth Committee on legal issues, where governments will debate the text later this month. We will keep you updated as the treaty progresses.
Once again, we thank you for your engagement with this historic movement.
Lisa Davis | Associate Professor of Law and Co-Director of the Human Rights and Gender Justice Clinic, CUNY School of Law & Senior Legal Advisor, MADRE & Jessica Stern | Executive Director, OutRight Action International