Note: Embracing Ambiguity and Adopting Propriety: Using Comparative Law To Explore Avenues for Protecting the LGBT Population Under Article 7 of the Rome Statute of the International Criminal Court

By Charles Barrera Moore. Full text here.

The International Criminal Court (ICC) was initially lauded for expanding the scope of crimes considered to violate international norms; however, as inclusive as the Rome Statute of the International Criminal Court has been for gender-based crimes, the ICC has yet to extend the same benefits to the lesbian, gay, bisexual, and transgendered (LGBT) community. Part of this reality stems from the ambiguity found in the definition of “gender” in the Rome Statute, a definition that leaves open the question of whether or not the LGBT community is protected. While the debate surrounding the definition of “gender” to be included in the Rome Statute attempted to balance seemingly irreconcilable viewpoints, its language provides sufficient vagueness to allow for the protection of members of the LGBT community.

This Note argues that this ambiguity can be utilized to resolve this threshold issue. Additionally, practices from international human rights courts indicate that there is an emerging willingness by courts to protect this vulnerable group. Specifically, the European Court of Human rights and the Inter-American Commission on Human Rights have both found that LGBT individuals are protected under their guiding treaties. While the ICC and these international human rights courts operate differently, their roles overlap such that the ICC is compelled, both by principle and the Rome Statute, to consider these courts’ treatment of LGBT rights. These two elements, the text of the Rome Statute and the treatment of LGBT individuals by human rights courts, work together to affirmatively establish that the LGBT community should be considered to fall within the bounds of the Rome Statute’s definition of “gender.” Because of these developments in the international community and the text of the Rome Statute, the Office of the Prosecutor (OTP) of the International Criminal Court should adopt an explicit policy stating as much. OTP has made signals that it considers the definition of “gender” to be expansive, but only once it has taken this step will it be empowered to bring cases involving persecution of the LGBT community.