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“Once You See, You Can’t Unsee” - Lisa Davis on Fighting Gender Persecution

Trigger Warning: The following article focuses on the prevention and prosecution of gender persecution. It contains references to sexual assault, violence, and gender-based oppression.

Change a word and change the world. In 1998, a coalition of activists successfully advocated to replace the word “sex” with “gender” in relation to persecution in the Rome Statute, which established the International Criminal Court (ICC). In doing so, they helped transform the future of gender justice and open up the protections of international criminal law to anyone targeted for discrimination because of their gender.

Twenty-six years later, the legacy of that victory lives on in Lisa Davis. At the City University of New York School of Law’s Human Rights and Gender Justice Clinic (the Clinic), they studied under Rhonda Copelon, who led the coalition that drove the change to the Rome Statute. Today, they build upon Copelon’s legacy in many roles. Davis is a professor of law and the Clinic’s co-director, and they served as the first special advisor to the ICC on gender persecution.

In May 2023, Davis spearheaded a convening of experts at the Bellagio Center focused on establishing a shared understanding of gender persecution and creating the tools to prevent it, while ensuring that survivors are protected and able to participate in the process of seeking justice.

How is your work helping to address gender persecution?

In establishing gender persecution as an international crime, the Rome Statute defines gender as the two sexes, male and female, within the context of society. This opaque definition led to uncertainty over who was included as victims – such as LGBTQI+ people – and how the statute covered acts that regulate or punish those who are perceived to transgress “accepted” forms of gender expression. Partly because of this problem with the definition, there has been a dearth of prosecutions of gender persecution under international criminal law, despite being on the books for decades.

After I started teaching, I began asking, “Why haven’t we done anything on this?” I wrote, advocated, and talked to ICC member states, looking at what it means legally. In 2021, the ICC Prosecutor appointed me as special advisor on gender persecution. He asked me to write a policy paper which could clarify what this charge means, how we charge it, and how it legally includes LGBTQI+ victims. Today, our first cases are moving, including the Al Hassan case, the first ICC case to bring gender persecution charges.

In May 2023, the Clinic partnered with the ICC Office of the Prosecutor to bring together human rights and international criminal law experts to discuss principles on gender persecution, prevention, protection, and survivor participation. The attendees also thought it was critical to encourage treaty bodies to come out with comments on gender persecution, and persecution in other intersecting forms, which could signal that these types of persecution needed to be recognized by their member states and within the ICC.

The goal is to gather input on the principles, from grassroots advocates who are working in and on the frontlines of conflict or post-conflict settings, as well as UN experts, academics, advocates, and states. This input can be used for treaty bodies as well. With support from The Rockefeller Foundation’s Uncommon Collaborations program, MADRE is hosting five regional convenings, along with a series of virtual trainings and workshops to reach as many civil-society actors as possible.

  • The greatest goal is to raise awareness and visibility of gender-based crimes. People have to see them, to see those victims, because they have existed probably in every conflict throughout time.
    Lisa Davis
    City University of New York School of Law Human Rights and Gender Justice Clinic

What breakthroughs need to happen to make meaningful progress in preventing and addressing gender persecution?

The greatest goal is to raise awareness and visibility of gender-based crimes. People have to see them, to see those victims, because they have existed probably in every conflict throughout time. People have to see and understand why they were targeted, because it’s the most basic question that must be answered to build sustainable peace.

Gender discrimination is so normalized, so internalized, that we don’t recognize it. It’s around us all the time, everywhere. We are so used to making gender crimes invisible, against women and LGBTQI+ people in particular, that it is second nature.

But if they are seen, that could start the momentum towards redress, reparations, and equality after conflict. It would be that sea-change moment we need to move towards equality and sustainable peace. Just like understanding religious persecution triggered freedom-of-religion protections, the same thing would happen with persecution based on gender. When you see thousands of victims and understand why they were targeted, you can’t help but say, “They have rights at the peace process table, because they’re victims. They have a right to special protections because they’re a minority group.”

What keeps you up at night about achieving these goals? What makes you optimistic?

It’s the same answer for both, which is the survivors of gender-based crimes. I came back from a trip to Europe in January where I spoke with LGBTQI+ refugees who escaped persecution in Afghanistan. They had horrific stories. They talked about being given official documents that in essence said, “You’re queer or perceived as queer, so you’re going to go to jail. You’re going to be raped for it. You’re going to be tortured for it. Your friends are going to be killed for it.” Very public and official, yet we never read about it in the newspaper or on social media.

This invisibility of victims is frustrating. That’s what keeps me up at night. How long will it take to be able to get redress? How many have to suffer until we see them?

But the survivors also keep me optimistic. They are resilient and strong, and they want their stories told. They deserve to be heard and acknowledged. We owe it to them to do that, because all of us have rights.

When gender persecution is brought into the light, when we clearly see and hear those who have been harmed, we are forced to acknowledge its existence and our own roles in fighting it. “Once you see it, you can’t unsee it,” Davis says. “If you open people’s eyes, you can open their hearts and minds.”

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