The interpretation of gender at the International Criminal Court - An examination of article 7(3) of the Rome Statute and the crime against humanity of gender persecution
(2023) JURM02 20231Department of Law
Faculty of Law
- Abstract
- The adoption of the Rome Statute of the International Criminal Court identified for the first time in international criminal law the crime against humanity of persecution on gender grounds. The inclusion was however not uncontested, and especially the term gender was a source of debate during the negotiation process. Because of diverging national positions on what the term gender meant, it was decided that it would be defined in the Rome Statute. The peculiar definition has ever since been questioned by scholars, by some understood to only refer to biological sex, by others to also include socially constructed roles of men and women. The understanding of gender is an essential part of the limits and possibilities of gender persecution, to... (More)
- The adoption of the Rome Statute of the International Criminal Court identified for the first time in international criminal law the crime against humanity of persecution on gender grounds. The inclusion was however not uncontested, and especially the term gender was a source of debate during the negotiation process. Because of diverging national positions on what the term gender meant, it was decided that it would be defined in the Rome Statute. The peculiar definition has ever since been questioned by scholars, by some understood to only refer to biological sex, by others to also include socially constructed roles of men and women. The understanding of gender is an essential part of the limits and possibilities of gender persecution, to which the Court is yet to present a judgement. With a lack of clarity regarding the term gender, this thesis sets out to provide with an interpretation of the term as well as examine the act of gender persecution.
This thesis uses the method of treaty interpretation contained in the Vienna Convention on the Law of Treaties to define the term gender. It examines the object and purpose of the Rome Statute, the conventional meaning of gender and the limits imposed by the principle of legality. In conclusion, the thesis holds that the definition of gender in the Rome Statute should not be restricted to biological sex, but to also include social constructs relating to males and females. This interpretation is confirmed by recourse to preparatory work of the Rome Statute as well as other relevant circumstances at the time of the adoption of the instrument. Finally, this is an interpretation that is consistent with human rights.
The second part of the thesis examines the crime against humanity of gender persecution and presents the elements that constitute the act. In addition, it describes the three cases that include charges on gender persecution to this date confirmed by the Pre-Trial Chamber. The aim of the chapter is to contribute to the conclusion if these cases may help to advance the understanding of gender as defined in the Rome Statute.
Finally, the thesis holds that an interpretation of gender in the Rome Statute allows for an inclusion of social construct which is supported by the reasoning in the three cases on gender persecution. However, the trials do not confirm if transgression of gender norms falls within the act of gender persecution nor within the term gender. (Less)
Please use this url to cite or link to this publication:
http://lup.lub.lu.se/student-papers/record/9116783
- author
- Tauvon, Kajsa LU
- supervisor
-
- Anna Nilsson LU
- organization
- course
- JURM02 20231
- year
- 2023
- type
- H3 - Professional qualifications (4 Years - )
- subject
- keywords
- Public international law, international criminal law
- language
- English
- id
- 9116783
- date added to LUP
- 2023-06-22 13:01:18
- date last changed
- 2023-06-22 13:01:18
@misc{9116783,
abstract = {{The adoption of the Rome Statute of the International Criminal Court identified for the first time in international criminal law the crime against humanity of persecution on gender grounds. The inclusion was however not uncontested, and especially the term gender was a source of debate during the negotiation process. Because of diverging national positions on what the term gender meant, it was decided that it would be defined in the Rome Statute. The peculiar definition has ever since been questioned by scholars, by some understood to only refer to biological sex, by others to also include socially constructed roles of men and women. The understanding of gender is an essential part of the limits and possibilities of gender persecution, to which the Court is yet to present a judgement. With a lack of clarity regarding the term gender, this thesis sets out to provide with an interpretation of the term as well as examine the act of gender persecution.
This thesis uses the method of treaty interpretation contained in the Vienna Convention on the Law of Treaties to define the term gender. It examines the object and purpose of the Rome Statute, the conventional meaning of gender and the limits imposed by the principle of legality. In conclusion, the thesis holds that the definition of gender in the Rome Statute should not be restricted to biological sex, but to also include social constructs relating to males and females. This interpretation is confirmed by recourse to preparatory work of the Rome Statute as well as other relevant circumstances at the time of the adoption of the instrument. Finally, this is an interpretation that is consistent with human rights.
The second part of the thesis examines the crime against humanity of gender persecution and presents the elements that constitute the act. In addition, it describes the three cases that include charges on gender persecution to this date confirmed by the Pre-Trial Chamber. The aim of the chapter is to contribute to the conclusion if these cases may help to advance the understanding of gender as defined in the Rome Statute.
Finally, the thesis holds that an interpretation of gender in the Rome Statute allows for an inclusion of social construct which is supported by the reasoning in the three cases on gender persecution. However, the trials do not confirm if transgression of gender norms falls within the act of gender persecution nor within the term gender.}},
author = {{Tauvon, Kajsa}},
language = {{eng}},
note = {{Student Paper}},
title = {{The interpretation of gender at the International Criminal Court - An examination of article 7(3) of the Rome Statute and the crime against humanity of gender persecution}},
year = {{2023}},
}