Gender(ed) Perspectives: An analysis of the ‘Gender Perspective’ in the Office of the Prosecutor of the ICC’s Policy Paper on Sexual and Gender-based Crimes

This policy brief analyses the gender perspective in the Policy Paper. In Part I, the brief discusses the contributions of the Policy Paper, particularly as it pertains to institutionalising an approach that eschews the marginalisation of sexual and gender-based crimes in light of the historical neglect of these crimes in international law. Part II turns to the content of the gender perspective. Here, it argues that the Policy Paper has made significant progress in eroding some of the more violent and exclusionary aspects of the Rome Statute’s definition of gender, including through its explicit inclusion of the social construction of gender, and its explicit reference to sexual orientation. However, it argues that despite this, the Policy Paper has not surmounted the tethering of gender to biological sex, and thus offers a limited iteration of the social construction of gender. Additionally, the treatment of both gender and assigned sex in binary ‘man versus woman’ terms precludes a genuine consideration of the construction of gender, while the treatment of assigned sex as fixed and immutable is at odds with much scientific, medical and feminist literature on the ways in which assigned sex is itself a construct. The brief thus suggests that the Policy Paper leaves many outside of its remit, while reproducing narratives about gender that are tethered to power and exclusion. Parts III and IV consider the legal and socio-political ramifications of the gender perspective as it is currently articulated.