The International Criminal Court (ICC) is a permanent international court established to investigate, prosecute and try individuals accused of committing the most serious crimes of concern to the international community, namely the crime of genocide, crimes against humanity, war crimes and the crime of aggression.

Established through the adoption of the Rome Statute in 1998, the ICC began operating in 2002. One hundred and twenty three states are parties to the Statute, including all the countries of South America, nearly all of Europe, most countries in the Asia-Pacific area and approximately half of Africa.

But the court’s jurisdiction has not been met without controversy.

Since its inception, the Rome Statute has developed as one of the first international treaties to extensively address sexual and gender-based violence as a crime against humanity, war crime and, in some cases, genocide. The mass atrocities in Cambodia and Rwanda brought the issue to the international stage with, what has been widely considered, disappointing results for victims.

The ICC handed down its first conviction for rape as a war crime and as a crime against humanity in March 2016 against former Congolese rebel militia leader Jean-Pierre Bemba. His conviction was eventually overturned.

In 2019, the court successfully held Bosco Ntaganda, a Congolese warlord, guilty of sexual and gender-based crimes.

Human rights groups continue to campaign for violators of human rights on the basis of sexual orientation to be held criminally liable to the ICC.

Criminalisation of the LGBT+ community

Although the Rome Statute is the first international instrument to expressly include sexual and gender-based crimes, there have been no successful LGBT+ persecution prosecutions at the ICC. Criticism has been made of the ICC’s inaction amid the backdrop of domestic legislation criminalising LGBT people. The 2014 Anti-Homosexuality Act in Uganda, the declaration of ‘LGBT- free zones’ in Poland and the so-called ‘gay propaganda bill’ in Russia (having removed its signature from the Rome Statute on 16 November 2016) constitute current controversial examples of anti-LGBT laws. Many of these have resulted in serious, occasionally fatal, consequences for members of the LGBT community.

Sixty-eight United Nations member states criminalise consensual same-sex sexual contact and nine states expressly criminalise the gender identity or gender expression of transgender people. Thirty-one member states have legal barriers to the freedoms of expression of LGBT+ people.

Numerous issues make up the wider risk posed to the LGBT community in the context of international conflict. A primary argument posed is the vacuum caused by domestic criminal law taking precedent over the ICC’s jurisdiction. Yet the legal persecution in the form of the criminalisation of LGBT+ people breaches a state’s obligations under international law, including the obligation to protect individual privacy and to guarantee non-discrimination. The prohibition on inhumane and degrading treatment is absolute. Laws that criminalise homosexuality permit severe mistreatment of LGBT people by state and non-state actors alike.

Legislative ambiguities

However, the issues are more than simply the domestic criminalisation of LGBT people. They can also be attributed to the wording of the Rome Statute and its interpretation of what constitutes sexual and gender-based violence. The lack of clarity as to when a violent act can be classified as fundamentally sexual leaves ambiguity as to when a persecution can be sought on that basis. An example of this is the ICC’s Kenyatta case, where charges were withdrawn against the Deputy Prime Minister of Kenya in 2014 (now Kenyan President).

The Statute sets out the acts identified as crimes against humanity including the ‘persecution against any identifiable group or collectively on political, racial, national, ethnic, cultural, religious, gender […] or other grounds that are universally recognized as impermissible under international law’. Some members, when adopting the provisions of the Rome Statute, have explicitly included sexual orientation as a protected ground, but the Statute does not specifically list sexual orientation or gender identity as a protected category. Additionally, the Statute’s classification of gender as solely male and female fails to consider those who identify as non-binary or gender fluid.

Do governments accurately reflect the issue?

Attacks against the LGBT community can be undertaken by private mobs (where governments can’t or won’t prevent them) or by the government themselves. In Kenya in 2010, for example, a group of approximately 200 people attacked gay and bisexual men and transgender women who worked as peer educators at an HIV clinic after rumours of a gay wedding were circulated, according to Human Rights Watch. But when members of society are marginalised within their own countries, attacks are likely to go underreported or not be reported at all.

The ICC has jurisdiction to prosecute under its Article 17 powers if the local government is either ‘unwilling or unable genuinely to carry out the investigation or prosecution’. But in order to avoid accusations or liability a state may attempt to deny the existence of LGBT people among its population to begin with, ‘negating’ the need for any protection.

Learning from other courts

The ICC is admittedly in its formative years, and precedents are being set such as the case of Ntaganda in 2019. An argument can be made for the ICC to look towards human rights courts who have encountered issues concerning the LGBT community in order to address gaps in its framework. As with the ICC’s analysis of gender inequality and sexual violence in the context of international conflict and its successful prosecution of cases as a result, development of the Rome Statute must reflect the same for the LGBT community.

One of the ICC’s original objectives was to ‘progress the case law of international criminal prosecutions to develop a more effective framework for international humanitarian and human rights law’. Although some headway has been made acknowledging sexual and gender-based violence (especially against women and girls) within the Statute, and this has resulted in successful prosecutions, the same cannot be said for the protection of LGBT people.

An inability to investigate and therefore a failure to prosecute crimes against the LGBT community through a lack of legislative definition will inevitably cause delays and unnecessary suffering to victims.