The Rome Statute of the International Criminal Court (2002), under Article 7(3) provides that the definition of gender in the Rome Statute shall be taken to mean; the two sexes, male and female, within the context of the society.^[2] This provision has elicited many criticisms amongst experts, conservatives and liberals alike. These criticisms include the claim that the provision may cause a heteronormative interpretation of gender in international law. However, there are others who are of the school of thought that the provision cannot be considered narrow due to its acknowledgment of social norms and the presence of other safeguards in the Rome statute. In this paper, I will first provide the history of drafting of Article 7(3), and later on analyse the alleged binary nature of the same provision, and demonstrate that as much as these fears are valid, they are still quelled by the Rome Statute.

The earliest draft of the Rome Statute of 1994 did not make any reference to the word ‘gender’.^[3] The term was first proposed in 1996, when suggestions were made to add it to the criteria of judges’ qualifications.^[4] In particular, various groups including non-governmental organisations suggested that there should be gender inclusivity, in the elections of judges.^[5] A year later, in 1997 participants in the preparatory committees proposed the inclusion of gender among the grounds that the crime against humanity of persecution may apply.^[6] Additionally there were proposals of its addition in the provision on applicable laws of the International Criminal Court (ICC), where the  mandated interpretation was to be done in adherence to internationally recognised rights including on non-discrimination, under the basis of gender.^[7]

However, this progress was not to remain the same. In the 1998 negotiations of the Preparatory Committee of the Draft Articles on the Establishment of the ICC, there was an amendment made to remove the mention of the word ‘gender’ in the provision of elections of judges, in order for it to state that ‘the membership of the Court should demonstrate, a fair representation of females and males.^[8]

Additionally, there were numerous calls for the removal of the term in the provision on applicable laws and on the grounds of persecution. With regards, applicable law, the conservative states were worried that the inclusion of gender would protect the rights of sexual minorities, a group whose rights were not recognised in some states. On the other hand, liberal states and parties supported the inclusion of the term.^[9] Noting the hiccup caused by the polarity of the views, the Chair of the Working Group on Applicable Laws, thus suggested that the definition of gender be derived from the 1995 World Conference on women that defined gender as a term that was to be understood in its ordinary and general usage.^[10] However, the parties that supported the inclusion of the term ‘gender’, did not accept this definition because of its vagueness.^[11]

At the end, due to lack of consensus, the parties embarked on ‘agree-to-disagree’ discussions, with the pro-gender side settling for the terms ‘male and female’ instead of ‘gender’, but on  the condition that the socially constructed roles of these two sexes were recognised.^[12] As a consequence, the phrase, ‘in the context of the society’ was proposed to be included as part of the definition of gender, and was accepted by both those who proposed the term ‘gender’, and those who opposed it.^[13] There was also an addition of the phrase, "The term 'gender' does not indicate any meaning different from the above." ^[14] This final addition was championed by those who opposed the term ‘gender’, with the intention of wanting to prevent other definitions from being used.

In 1998, the Rome Statute was adopted in Rome, and it came into force in 2002. Article 7(3) of  the adopted 1998 Rome Statute, which is still the current definition, then reads, ‘For the purpose of this Statute, it is understood that the term "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.’

Oosterveld in her article analyses the four main criticisms that have arisen out of this final definition of gender under Article 7(3), two of which I will focus on. First, that it would lead to the conflation of gender and sex, and, Second, that it would mean the exclusion of sexual orientation from the context of gender.^[15]

In the first criticism, she highlighted the possibility of the Article 7(3) definition, leading to what Kristen and Westbrook describe as biological determination of gender.^[16] This is where gender is seen as being limited to two sexes, male and female, thereby leaving out other genders, such as those who identify as trans persons, as was the issue in the Littleton case.^[17] The biological determination of gender is also referred to as an essentialist social construction of sexualities, by Charles Ngwena, who discussed it in the context of Africa.^[18] As argued by Oosterveld, the danger of a biological determination of gender is that the ICC may fail to appreciate the role that social constructions attached to what being female and male plays in cases before the ICC.^[19] This will, therefore, mean that the protective measures undertaken towards witnesses and victims will be devoid of the sense of the social considerations needed to humanise witnesses and victims before the ICC.^[20]

Nevertheless, as she recognised, this fear is dispelled by the fact that the ICC does not view gender as biologically determined but rather biologically founded.^[21] This is because of the addition of the phrase,’ in the context of society.’ This phrase acknowledged the role that social norms and roles play in the determination of gender. Therefore, the Court is less likely to only view gender in the context of sex. Noting the nature of the agreements that sought to incorporate both ideological sides, I am in agreement with this sentiment, especially in consideration of the tone of the policy of the ICC on gender crimes, where the ICC, reiterates that social orientation is one of the grounds, upon which an individual may be discriminated against.^[22]

On the other criticism, that Article 7(3) would  lead to the exclusion of sexual orientation from the context of gender in international law, scholars have argued that the definition of gender as a term that ‘refers to the two sexes, male and female’, is likely to cause the exclusion of sexual orientation from the context of gender.^[23] The binary nature of this definition has been argued to be as a result of conservative states such as the Holy See, who wanted to ensure a subversion of gender and the non-recognition of other  gender identities.^[24] Nevertheless, the absence of this recognition has not prevented the ICC from recognising the intersectional nature of gender issues, in particular how gender discrimination intersects with discrimination based on sexual orientation.^[25] This is seen in the Lubanga case, where the Pre-Trial Chamber of the ICC, noted that reparations shall be granted to victims without distinction on the basis of race,  gender, religion or belief, political or other opinion, sexual orientation, or any other status.^[26]

Additionally, Article 21(3) of the Rome Statute mandates the application of ICC laws in line with internationally recognised rights including the right to non-discrimination on the basis of sexual orientation.^[27]

Therefore, despite the seemingly binary nature of the definition of gender under Article 7(3) of the Rome Statute, the provision has not fostered the principles of heteronormativity due to the flexibility that has been provided by the terms, ‘in the context of the society’, and the Article 21 (3) of the Rome Statute requirement to interpret ICC laws in line with internationally recognized rights. Moreover, the non-binary nature of the definition is seen through ICC cases and policy documents that have acknowledged the existence of other genders apart from males and females.

^[*] Final Year Law Student at Kabarak Law School, passionate about international criminal justice, gender and serves as current coordinator of the Avid Readers’ Forum.

^[2] Article 7(3) Rome Statute of the International Criminal Court.

^[3] Valerie Oosterveld, ‘The definition of "Gender" in the Rome Statute of the International Criminal Court: A step forward or back for international criminal justice?’ 18, Harvard Human Rights Journal, 2005, 71.

^[4] Report of the Preparatory Committee on the Establishment of the International Criminal Court, Vol. II (Compilation of Proposals), U.N. GAOR, 51st Sess, Supp. No. 22, at 11, 14, U.N. Doc. A/51/22 (1996).

^[5] Report of the Preparatory Committee on the Establishment of the International Criminal Court, Vol. II (Compilation of Proposals), U.N. GAOR, 51st Sess., Supp. No. 22, at 11, 14, U.N. Doc. A/51/22 (1996).

^[6]Decisions Taken by the Preparatory Committee at Its Session Held from 11 to 21 February 1997, U.N. GAOR, Preparatory Comm. on the Establishment of an Int'l Crim. Court, 51st mtg., Annex 1, at 4, 5 n.7, U.N. Doc. A/AC.249/1997/L.5 (1997); Other inclusions of the word gender were in the provisions  on the Court’s duty to provide protective measures to witnesses and the provisions on the prosecution’s duty to protect, among others, gender victims, during the prosecution and investigation of crimes, see  Decisions Taken by the Preparatory Committee at Its Session Held from 4 to 15 August 1997, U.N. GAOR, Preparatory Comm. on the Establishment of an Int'l Crim. Court, Annex 2, at 16, U.N. Doc. A/AC.249/1997/L.8/Rev.1 (1997).

^[7] Decisions Taken by the Preparatory Committee at Its Session Held from 11 to 21 February 1997, U.N. GAOR, Preparatory Comm. on the Establishment of an Int'l Crim. Court, 51st mtg., Annex 1, at 4, 5 n.7, U.N. Doc. A/AC.249/1997/L.5 (1997); Other inclusions of the word gender were in the provisions  on the Court’s duty to provide protective measures to witnesses and the provisions on the prosecution’s duty to protect, among others, gender victims, during the prosecution and investigation of crimes, see  Decisions Taken by the Preparatory Committee at Its Session Held from 4 to 15 August 1997, U.N. GAOR, Preparatory Comm. on the Establishment of an Int'l Crim. Court, Annex 2, at 16, U.N. Doc. A/AC.249/1997/L.8/Rev.1 (1997).

^[8] Valerie Oosterveld, ‘The definition of "Gender" in the Rome Statute of the International Criminal Court: A step forward or back for international criminal justice?’ 18, Harvard Human Rights Journal, 2005, 62.

^[9] Report of the Preparatory Committee on the Establishment of an International Criminal Court (Draft Stat ute and Draft Final Act), U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an Int'l Crim. Court, Rome, Italy, June 15-17, 1998, at art. 20(3), U.N. Doc. A/CONE 183/2/Add. 1 (1998).

^[10] Report of the Fourth World Conference on Women, Beijing, 4-15 September 1995, Addendum, Annex IV, U.N. Doc. A/CONF.177/20/Rev.1, U.N. Sales No. 96.IV.13 (1996), 218.

^[11] Report of the Fourth World Conference on Women, Beijing, 4-15 September 1995, Addendum, Annex IV, U.N. Doc. A/CONF.177/20/Rev.1, U.N. Sales No. 96.IV.13 (1996), 218.

^[12]Valerie Oosterveld, Member of the Canadian Delegation to the 1998 U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of the International Criminal Court, Notes From Informal Informal Discussions, July 13-14, 1998; Valerie Oosterveld, ‘The definition of "Gender" in the Rome Statute of the International Criminal Court: A step forward or back for international criminal justice?’ 18, Harvard Human Rights Journal, 2005, 64.

^[13]Valerie Oosterveld, Member of the Canadian Delegation to the 1998 U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of the International Criminal Court, Notes From Informal Informal Discussions, July 13-14, 1998.

^[14] Report of the Preparatory Committee on the Establishment of an International Criminal Court (Draft Stat ute and Draft Final Act), U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an Int'l Crim. Court, Rome, Italy, June 15-17, 1998, at art. 20(3), U.N. Doc. A/CONE 183/2/Add. 1 (1998).

^[15] The Definition of "Gender" in the Rome Statute of the International Criminal Court: A Step Forward or Back for International Criminal Justice? Valerie Oosterveld*, Harvard Human Rights Journal / Vol. 18, 71.

^[16] Laurel Westbrook and Kristen Schilt Source, ‘Doing gender, determining Gender: Transgender people, gender panics, and the maintenance of the sex/gender/sexuality system’  28, Gender and Society, ( 2014),

^[17]Littleton v Prange, (1999) 99-1214 (Texas 1)

^[18]Charles Ngwena, What is Africanness? Contesting nativism in race, culture and sexualities, Pretoria University Law Press, 2018, 224.

^[19]Valerie Oosterveld, ‘The definition of "Gender" in the Rome Statute of the International Criminal Court: A step forward or back for international criminal justice?’ 18, Harvard Human Rights Journal, 2005, 62.

^[20] Rome Statute of the International Criminal Court, Article 68.

^[21]Integrating the Human Rights of Women Throughout the United Nations System, Report of the Secretary General, U.N. ESCOR, 53d Session,10, U.N. Doc. E/CN.4/1997/40 (1996).

^[22]Policy Paper on Sexual and Gender-Based Crimes (June 2014),16; The Policy on the Crime of Gender Persecution (December 2022), 4.

^[23] Valerie Oosterveld, ‘The definition of "Gender" in the Rome Statute of the International Criminal Court: A step forward or back for international criminal justice?’ 18, Harvard Human Rights Journal, 2005, 76.

^[24] Hilary Charlesworth, ‘The Gender of International Law’ 93, Cambridge University Press, on behalf of  American Society of International Law, (1999).

^[25]Rome Statute of the International Criminal Court, Article 21 (3); Policy Paper on Sexual and Gender-Based Crimes (June 2014), 16.

^[26]Prosecutor v. Thomas Lubanga Dyilo, Decision establishing the principles and procedures to be applied to reparations, ICC-01/04-01/06-2904, para 191.

^[27]Rome Statute of the International Criminal Court, Article 21 (3); Policy Paper on Sexual and Gender-Based Crimes (June 2014), 16.