Invisible crimes, visible rights? The human rights path to justice for sexual minorities in international criminal law

Abstract

This study explores the extent to which international criminal law (ICL), as codified in the Rome Statute of the International Criminal Court (ICC), can be used to prosecute persecution intentionally committed against sexual minorities. Although international human rights law (IHRL) has extended its protection to this group, the Rome Statute lacks equivalent protection. In addressing this gap, existing scholarship and ICC Office of the Prosecutor (OTP) policy papers tend to adopt narrow interpretations of ‘gender’ under Article 7(1)(h), shaped by the Statue’s binary definition of ‘gender’ under Article 7(3) and the perpetrator’s imposed gender expectations. This study asks whether persecution based on sexual orientation can be addressed under the existing ‘gender’ or ‘other’ non-discrimination grounds through Article 21(3)’s lex superior human rights lens. Using doctrinal legal analysis, comparative legal references, and interdisciplinary insights from sociology and victimology, the study argues that Article 21(3) enables a more inclusive and legally coherent interpretation of the Statute. This framework is tested against the ICC OTP’s 2025 arrest warrant applications in the Afghanistan situation – the first to explicitly include persecution of sexual minorities. The study concludes that an interpretation grounded in Article 21(3) offers a viable, human rights-based path to justice for sexual minorities within the current legal framework, without requiring formal amendment of the Statute. Keywords: International Criminal Law, Rome Statute, Sexual Minorities, Sexual Orientation, Gender, Crimes Against Humanity, Persecution, Article 21(3), Human Rights