We Need to Talk about the ICC's Trans-Exclusionism
By Neiha Lasharie
The International Criminal Court (ICC) is an international organ of great importance and potential. It is a complex project of international criminal law (ICL), which itself resides at the center of politics, international human rights, and criminal justice more broadly. ICL (and, by extension, the ICC) simultaneously seeks liberation from and is held hostage by its constituent parts. Proponents of international law who envision its role as a progressive trailblazer are reminded of the sour reality that it is constrained by the proclivities of states – traditionally considered the primary agents in international law.[1] International law is thus developed by the slow buildup of lowest-common-denominator definitions and progress.
ICL is primarily engaged with individual criminal responsibility for crimes of gravity such that they are said to offend the collective moral conscience of the world. The actors involved in governing and progressing ICL are a diverse dramatis personae representing legal systems - and, importantly, criminal justice systems - of different stripes. With the exception of (chief) prosecutors, the most influential actors within ICL are the judges that preside over both ad hoc tribunals and the ICC, as their decisions can alter the course of international norms and have very real consequences for the individuals on trial. Majority opinions for international courts shape and define the contours of international criminal law - sometimes within its stipulations and sometimes, controversially, without.
This judicial activism, while discomfiting to many commentators of ICL, has played an important role in expanding the scope of what crimes are "grave" enough to warrant individual criminal liability at an international level. For example, Prosecutor v. Kunerac at the International Criminal Tribunal for the former Yugoslavia (ICTY) broadened the definition of slavery in international criminal law to include sexual slavery. The ICTY also saw the Trial Chamber presiding over Prosecutor v. Furundzija widen the scope of war crimes to encompass rape, which was previously only charged as a crime against humanity. While commentators have expressed concern that these two cases enable judicial lawmaking on the part of ICL judges, there is no question that, from a normative standpoint, these were crucial developments.
Judges have also seemed to engage in creative interpretation through the reinterpretation of tenets of an international court or tribunal's own statute. State parties to the Rome Statute could make amendments as needed, but this is a deeply political and slow process. With this in mind, proponents of international criminal law and its potential must make a value judgment: when do normative considerations have to take precedence over strictly legal principles?
It is more important that ICL promote true justice than that it be procedurally principled. As the foremost organ within ICL, the ICC should be held to a high standard, where it a) can seek justice for, and b) protect at the outset all victims of international crimes - including transgender, non-binary, and other individuals with non-cisgender identities.
Article 7(3) of the Rome Statute (dealing with crimes against humanity) defines gender as "...the two sexes, male and female, within the context of society." It goes on to provide that, "[the] term "gender" does not indicate any meaning different from the above."
This definitional constraint is emphasized in a number of places in the Rome Statute. Article 21(3) underscores the need for the ICC to be aligned with international human rights law, "...without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3." Admittedly, the same paragraph also protects against adverse distinction on the basis of "any other status" - but the preclusion of trans and non-cisgender identities from coming under the umbrella of gender has problematic implications, which undermines a wealth of legitimate gender expressions.
Article 54(1)(b) vests the Prosecutor with the responsibility to "Take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses, including age, gender as defined in article 7, paragraph 3, [...] and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children." Similarly, Article 68(1) states that the ICC "shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses," with regard to relevant factors such as "gender as defined in article 7, paragraph 3, [...] and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children."
Understandably, the ICC seeks to protect victims of gender-based violence from being revictimized or retraumatized. However, in conceiving of gender so narrowly, the ICC precludes innumerable individuals who are at increased risk of being victims to gender-based violence. This is particularly true in societies where being trans or non-binary is demonized and unprotected.
If the ICC seeks to uphold the tenets of international human rights law, how can it justify the exclusion of particularly high-risk populations from explicit procedural protections, let alone justice? As of writing, there has not been a case where gender-based violence against trans and non-binary individuals has been elevated to the ICC. Regardless, the ICC need not wait for such a case to come up in order to reconsider the definition of gender.
Of course, there are political barriers to widening this definition, which was likely itself the result of compromise. But ICL's history of creative interpretation for progressive ends will serve it well here. A quick aside in a majority opinion that conceives of gender in a more abstract, inclusive manner will go a long way in serving an expressive function that may then be cited in future ICC and non-ICC proceedings. But it will go an even longer way in signaling to transgender and non-cisgender communities that they have equal standing in international law, and protections under international criminal justice. Furthermore, the ICC, and international law more broadly, needs to shirk the perception that it is beholden to Western, Eurocentric interests. Deviating from colonially exported conceptions of gender would be a powerful move.
International law must stand up for individuals even where - and especially where - their own states do not. International criminal law is no exception. It must therefore be uniquely aggressive in bringing perpetrators of gender-based violence against all requisite vulnerable populations to justice. Judges can and should play a trailblazing role in this.
[1] Jurist and scholar Emmanuelle Jouannet notes that the international law project was built on the back of the Westphalian model and was imagined to be, commensurately, an “inter-state legal order.” She notes that there are several arguments for whether, when, and to what extent the international law model evolved beyond the primacy of states.
Neiha Lasharie (she/her) is a second-year MALD candidate at The Fletcher School, specializing primarily in public international law with a Third World perspective, as well as international negotiation and conflict resolution. She is a member of the Content team for the 2020 Decolonizing International Relations Conference at Fletcher. For more of her writing, see her website.
“International Criminal Court, The Hague” by jbdodane is licensed under CC BY-ND 2.0.
