During the negotiations around the International Criminal Court's (ICC) Statute (ICCS) there was a fierce debate about the use and definition of the term ‘gender’ in its Article 7(3), with a sizeable number of states opposing the use of the term as a synonym for sexual orientation, which could have included lesbian, gay, bisexual and transgender persons (LGBT). This paper is going to argue that the drafting compromise was ultimately an exercise in moral failure for the sake of the political feasibility, cementing one of the most glaring instances of discrimination, and that it is high time to correct that error, especially in the context of the rising tide of state-sponsored homophobia that can be noticed in certain countries whose politics have drifted to the (far) right. It will examine whether the existing international criminal law does allow for the characterisation of domestic criminalisation as a crime against humanity, with or without the invocation of the term gender, and how to take the debate forward.
Recognition of the state-sponsored criminalisation of LGBT persons as a crime against humanity per se.
Amend Article 7 of the ICCS to include sexual orientation as part of the term ‘gender’.
By way of positive feedback from the international level and through the ICC’s complementarity principle, influence a global change in domestic legislation in LGBT cases towards decriminalisation.
Encourage a move towards a principled creation of international criminal law rules and a departure from diplomatic comity.