Criminalising LGBT persons under national criminal law and Article 7(1)(h) and (3) of the ICC Statute

Bohlander, Michael

doi:10.1111/1758-5899.12136

Criminalising LGBT persons under national criminal law and Article 7(1)(h) and (3) of the ICC Statute

Bohlander, Michael

Authors

Professor Michael Bohlander michael.bohlander@durham.ac.uk
Professor

Abstract

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.

Citation

Bohlander, M. (2014). Criminalising LGBT persons under national criminal law and Article 7(1)(h) and (3) of the ICC Statute. Global Policy, 5(4), 401-414. https://doi.org/10.1111/1758-5899.12136

Journal Article Type	Article
Acceptance Date	Feb 18, 2014
Online Publication Date	Jun 29, 2014
Publication Date	Nov 6, 2014
Deposit Date	Feb 15, 2014
Publicly Available Date	Jun 29, 2016
Journal	Global Policy
Print ISSN	1758-5880
Electronic ISSN	1758-5899
Publisher	Durham University
Peer Reviewed	Peer Reviewed
Volume	5
Issue	4
Pages	401-414
DOI	https://doi.org/10.1111/1758-5899.12136

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Copyright Statement
This is the peer reviewed version of the following article: Bohlander, M. (2014), Criminalising LGBT Persons Under National Criminal Law and Article 7(1)(h) and (3) of the ICC Statute. Global Policy, 5 (4): 401–414 which has been published in final form at http://dx.doi.org/10.1111/1758-5899.12136. This article may be used for non-commercial purposes in accordance With Wiley Terms and Conditions for self-archiving.