The global transgender population and the International Criminal Court.

• Author: Kritz, Brian

1. INTRODUCTION

   Recognition of the rights of lesbian, gay, and bisexual (LGB) persons has received considerable global attention in recent years. A landmark United Nations Resolution on human rights, sexual orientation and gender identity in June 2011, (2) a major policy address in December 2011 by then-Secretary of State Hillary Clinton, (3) the 2013 Inaugural Address of President Barack Obama, (4) a progressive court ruling in Colombia, (5) and a reversal of discriminatory national legislation in Malawi (6) all bode well for the continued expansion of the protection and promotion of the global LGB community.

   While the global transgender community receives frequent mention as the "T" under the umbrella of so-called LGBT rights, the international call for increased prevention of rights abuses against transgender persons, promotion of transgender rights, and protection of transgender communities pales in comparison to the similar call for the global LGB population.

   A conspicuous example of this divergence between LGB rights and transgender rights is Secretary of State Clinton's December 2011 address on human rights. While Secretary Clinton mentioned the rights of LGBT persons at many points in her speech commemorating International Human Rights Day, she never spoke of the rights of transgender persons as a standalone, always linking transgender persons to a discussion of one or more of the LGB group. (7) In comparison, she mentioned gay persons and issues alone on over fifteen occasions. (8) In the arguably seminal moment in her speech, she stated that "gay rights are human rights, and human rights are gay rights," leaving transgender persons conspicuously absent. (9) While working for the United States Agency for International Development as a Democracy Fellow and Senior Rule of Law and Human Rights Advisor in December 2011,1 heard from colleagues that an initial draft of this sentence included "transgender," but "transgender" was stricken from the final draft of the speech, leaving transgender rights outside of the "most tweetable" moment of her speech. As illustrated by this example, the sheer volume of publically available discourse on sexual identity rights lags well behind the dialogue on LGB rights.

   Yet transgender persons are, like LGB persons, the victims of considerable violence, discrimination, and persecution in many countries across the globe. As just one example of crimes against transgender persons, in March 2012, up to seventy young Iraqi males who identified as "emo" were murdered in and around Baghdad, due to their decision to wear tight-fitting, androgynous, and effete clothing, nose rings, studded leather belts and bracelets, and dyed hair, and due to their presumed links to effeminacy and homosexuality. Ali Hili, a gay Iraqi activist based in London, called the killings "a clear war on sexual minorities on Iraq." (10) Similarly, transgender persons in Latin America, Russia, and dozens of other countries suffer from endemic hostility, persecution, and mass violence. (11) A macro look at the numbers of transgender persons murdered in recent years is even more sobering. The March 2013 update of the Trans Murder Monitoring Project finds 1,123 reported killings of trans people in fifty-seven countries worldwide from January 1, 2008 to December 31, 2012. (12) The update also shows a significant rise in reported killings of trans people over the last five years. (13) "In 2008, 148 cases were reported, in 2009, 217 cases, in 2010, 229 cases, in 2011, 262 cases, and in 2012, 267 cases." (14)

   Throughout the latter half of the 20th century and the first decade and a half of the 21st century, commonly dubbed "the age of human rights" by legal scholars, international criminal law has been at the vanguard in expanding legal protections for vulnerable populations, both attempting to protect those in need of protection and punishing those malefactors who have violated the basic rights of others. (15) Whether it be the Nuremberg and Tokyo Trials after World War II, the Eichmann Trial in Israel in 1961, the cases arising in the International Criminal Tribunal for the Former Yugoslavia (ICTY) or the International Criminal Tribunal for Rwanda (ICTR) in the 1990s, law has provided a so-called "engine for justice" for those previously victimized, each successive case reaching farther than its predecessors to protect more persons and more groups from international mass atrocity crimes.

   With the force of almost seventy years of "the age of human rights" as an accelerant, one would hope that international criminal law would provide the global transgender and intersex communities with the type of basic protection needed by such vulnerable populations. However, international criminal law fails mightily to provide such relief. While international criminal law, as represented by protective aegis of the permanent International Criminal Court (ICC), declares its intention to "guarantee lasting respect for and the enforcement of international justice," and to protect men, women, and children from mass atrocity, it fails to live up to its declared ideals. (16) The ICC cannot pursue a case of genocide in the event of a targeted (17) mass atrocity against transgender and intersex persons and may not even be able to protect transgender and intersex persons from crimes against humanity in the case of such a targeted (18) attack, based on a confluence of the prevalence of transgenderism and intersexuality and the vagaries of "crimes against humanity law." This article concludes that the State Parties to the Rome Statute of the ICC have effectively left transgender and intersex persons unprotected in the case of a targeted attack against their numbers, effectively giving perpetrators of targeted violence against such groups a sense of impunity that their actions cannot be addressed by international criminal law.

   This article proceeds in eight Parts. Part II begins with a discussion of what is meant by the term "transgender," both within and outside the discipline of law. This section includes the ongoing definitional debate over the term "transgender" and the scope of those considered to be transgender, establishing a working definition for purposes of the legal analysis set forth in Parts IV-VII of this article. Similarly, Part II will define and discuss the term "intersex."

   Part III addresses the available demographics of the global transgender and intersex communities, while also discussing the challenges of identifying the scope of the communities, writ large, both in the developed and developing world. Examining the demographics of the transgender and intersex communities is necessary to understand exactly how many transgender persons are in danger of suffering violence worldwide, and to address a number of questions as to whether these global communities can be properly protected from crimes against humanity.

   Part IV introduces the issue of the scope of jurisdiction of the Rome Statute, and its potential application to address violence against transgender and intersex populations.

   Part V discusses whether transgender and/or intersex persons can benefit from the protections of the genocide provisions of Article 6 of the Rome Statute. Through an examination of the Rome Statute and its legal forefather, the 1948 Convention for the Prevention of the Crime of Genocide, the travaux preparatoires of both instruments, and the rulings of the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the Former Yugoslavia (ICTY), and the ICC in the case of Prosecutor v. Bashir, it will be concluded that transgender and intersex persons are not among the groups protected from genocide under Article 6.

   Part VI describes the unique predicament of the global transgender community with regard to protection from crimes against humanity under Article 7 of the Rome Statute. Due to the unique and expansive definition of "transgender," and the limited numbers of transgender persons, this article concludes that it would be difficult to satisfy the requirement for prosecution under Article 7--in other words, it is unlikely that there could be a widespread or systematic enough attack against a transgender civilian population to demonstrate the commission of crimes against humanity in the case of a targeted attack against their limited numbers. Similarly, the even fewer numbers of intersex persons present quite a challenge for a prosecution under Article 7.

   Part VII highlights that Article 7 also may not protect transgender or intersex populations from the crime of persecution. For while it is a crime against humanity to persecute a group based on gender, "gender" is then defined as "the two sexes, male and female," and the definition specifically excludes any other meaning. Therefore, as many transgender persons identify neither as male or female--instead describing themselves as "agender," "androgyne," "polygender," or "genderqueer"--they are arguably excluded from protection under Article 7. (19) Similarly, intersex persons, who are born with chromosomes, hormones, genitalia, and/or other sex characteristics that are not exclusively male or female, as defined by the medical establishment in society, are considered to be outside the binary male /female dyad seemingly required by Article 7, and are therefore potentially left unprotected by its auspices.

   Part VIII is a discussion of the real-world implications of the global transgender and intersex communities having been left out of the protective and preventative sphere of the ICC, and a caution that international criminal law cannot live up to the principles set forth in the Preamble to the Rome Statute unless this vulnerable population can be protected under its auspices.

   II(A). THE MEANING OF TRANSGENDER

   The meaning of the term "transgender" has been addressed by multiple disciplines and entities on both the international and national level...