Judicial failings: How the ICC has let down LGBTQ+ Africans, and what it can do to change

The Long Read

Illustration credit: Rosie Bromiley

There is fierce debate around the International Criminal Court’s (ICC) effectiveness as a tool for justice in Africa. Prominent African scholars and politicians have criticized the court for its alleged anti-African bias and “focus on criminalizing the perpetrators of violence”[1] rather than political reform. One topic often overlooked in debates around the ICC’s effectiveness is the widespread persecution of LGBT people in Africa. The court’s founding treaty does not classify LGBT people as a protected group, and its antiquated definition of gender excludes trans and other gender-non-conforming people from justice. The ICC’s blind spot on violence targeting LGBT people renders it an ineffective tool (at present) to seek justice for persecuted LGBT people in Africa. However, with reform, the ICC has the potential to contribute positively to norms around legal protection of LGBT Africans. Reforms could include the formal classification of LGBT people as a protected group, increased training of legal investigators to detect and respond to LGBT-related crimes in a culturally appropriate way, and through greater leadership from the office of the Prosecutor.


The ICC was founded in 2002, with the mandate to prosecute “the most serious crimes of concern to the international community as a whole”, including “genocide, crimes against humanity, war crimes, [and] the crime of aggression”.[2] The ICC, as it is commonly known, has jurisdiction over the aforementioned crimes committed within the borders of, or by nationals of the 123 states who have ratified the court’s founding treaty, the Rome Statute. The ICC operates under the philosophy of complementarity; this means that the ICC “prosecutes cases only when States… are unwilling or unable to do so genuinely”[3]. The ICC conducts preliminary investigations (including interviews with victims) to collect evidence of crimes before issuing arrest warrants and then proceeding to the trial stage. If the accused is found guilty by the ICC’s three Trial judges, they are sentenced to imprisonment, and victims may be compensated through reparations.

The Rome Statute fails to include sexual orientation as grounds on which crimes against humanity occurs, and includes an antiquated definition of gender; its equation of gender and biological sex[4] excludes trans and other gender-non-confroming people from justice. This blind spot is significant, considering the contestation of LGBT identity in Africa; transgender people are legally unrecognized in 51 out of 54 African countries, and homosexuality is illegal in 33 out of 54, carrying the death penalty in Mauritania, Somalia, Sudan, and a number of states in Nigeria.[5]

The depiction of a battle between Western imperial immorality and traditional African religious morality by religious and political leaders is common: LGBT identities are deemed un-Christian, un-Islamic[6], and even “un-African”, a colonial import. However, LGBT people have been present throughout Africa’s history, experiencing varying levels of tolerance and acceptance, and often holding important spiritual roles.[7] Ironically, claims that LGBT identities are inherently un-African mobilize the colonial narratives the same leaders claim to denounce. These colonial tropes are mobilized by leaders who wish to protect their own interests; the eradication of a foreign “abnormality” condemned by God can be an effective distraction from accusations of government corruption, or a failing economy.

African men were depicted in Europe during the colonial period as carnal and masculine: the “primitive man”, “close to nature, ruled by instincts, and culturally unsophisticated”[8] whose sexual life centered around procreation and was thus exclusively heterosexual.[9] Colonial anthropologists often ignored or underplayed the presence of homosexuality in their writings on Africa[10], contributing to the ahistorical perception that homosexuality is inherintly un-African.

An invented “African tradition” emerged out of the colonial period that was far from the truth, characterized by “new rigities, immobilizations and ethnic identifications”[11] legitimized by European claims that they were rooted in tradition. Criticisms of Western imperial influence regarding LGBT issues are not unlike those regarding the ICC itself; the ICC too has been used as a political tool by African leaders, fueled by accusations of being anti-African.[12]

            There was much debate prior to the creation of the ICC around the inclusion of LGBT issues in the Rome Statute. Article 7(1)(h) of the Rome Statute lists grounds on which crimes against humanity may be committed: “political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court”[13]. Regarding the Rome Statute’s definition of gender, Article 7(3) states that “For the purpose of the Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above.”[14]

The Rome Statute’s description of protected groups and collectivities excludes LGBT people from justice, in spite of their status as a persecuted group in a number of countries party to the Rome Statute. The equation of gender and sex by the Rome Statute is factually incorrect, with many scientific organizations and international NGOs now highlighting distinctions between the terms; for example, the World Health Organization defines “sex” as being “biologically determined”, and “gender” as “largely socially constructed”[15]. The Rome Statute’s definition of gender completely excludes transgender, non-binary, and other gender-nonconforming people from legal recognition.


The limited definition of gender included in the Rome Statute was arrived at through a compromise between feminist groups and conservative religious groups (including “the Vatican, Arab League states, and [North American] conservative organizations”[16]). Feminist groups lobbied for gender to be included in a way that acknowledged the differences between biological sex and the socially constructed nature of gender.[17] Meanwhile, the religious conservative groups listed above lobbied against the inclusion of gender in the Rome Statute altogether, and against an inclusive definition of gender in the case that it was included, on the grounds that it could be utilized to protect LGBT rights.[18]

Ultimately, a compromise was reached in which gender was included, but equated to sex to avoid the Article being used to safeguard LGBT rights.[19] The fact that a compromise definition was needed to appease influential interest groups signifies that LGBT identities are contested, and in need of an international legal framework of protection, which the Rome Statute fails to provide at present.

Some scholars argue that the definition’s ambiguity renders it flexible to an interpretation that could be used to prosecute crimes targeting LGBT people, either through its classifications of “gender” or “other grounds that are universally recognized”.[20] They contend that since the definition of gender “refers to the two sexes, male and female, within the context of society[21], that if LGBT people are recognized in the context of society they can be included under the “gender” category.

There are two flaws with this argument: first, sexual orientation and gender identity are two distinct facets of identity. Even if the “context of society” recognized non-cisgender identities, that is irrelevant to persecution regarding sexual orientation. Second, “the context of society” begs the question of what society is being referred to; the global society, or that in which the crime takes place? There is no global consensus on LGBT identities, and the mass persecution of LGBT people tends to occur in societies where LGBT identities are largely unrecognized. In neither case is the “context of society” argument applicable.

The other argument, that LGBT persecution could be tried under the “other grounds that are universally recognized” classification, is equally flawed. The Rome Statute does not designate any criteria for “universally recognized”, leaving a high burden of proof for universal recognition.[22] LGBT rights are not a jus cogens norm (“a norm accepted and recognized by the international community of States as a whole”[23]), and therefore do not meet the burden of proof of “universal recognition” needed to be granted protection under this category.

Thus, despite claims from some scholars that the ambiguity of the Rome Statute’s language allows for the classification of LGBT people as a protected group, it in fact creates pathways to justice that are unviable and likely unwinnable, as they are dependent on the interpretations of both the Office of the Prosecutor (OTP) and the judges aligning with a particular reading of an ambiguous piece of legislation.


So, how could the Rome Statute be amended to better seek justice for LGBT Africans? First, Article 7(1)(h) could be amended to read as “political, racial, national, ethnic, cultural, religious, or on the basis of sexual orientation, biological sex, and gender identity as defined in paragraph 3”. Then, Article 7(3) could read as “For the purpose of the Statute, it is understood that the term “gender identity” refers to the “personal conception of oneself as male or female… both or neither, distinct from one’s biological sex at birth”. Amending Article 7 to explicitly mention sexual orientation, biological sex, and gender identity as distinct categories broadens the jurisdiction of the Rome Statute and removes any ambiguity regarding LGBT issues.

The June 2014 Policy Paper on Sexual and Gender-Based Crimes released by the Office of the Prosecutor suggests that reform on LGBT issues is not entirely unlikely. The Policy Paper’s clarification of the Rome Statute definition of gender contradicts the definition it seeks to clarify; it says that the Rome Statute “acknowledges the social construction of gender” when it actually defines gender in terms of biological sex rather than social construction. This lack of clarity could easily be addressed through updating Article 7 to a definition more in line with the one presented in the Policy Paper.

The Policy Paper also briefly discusses sexual orientation as a factor leading to “discrimination and social inequality”, signalling an openness from the Office of the Prosecutor for dialogue regarding LGBT issues. Additionally, it is important to take into account that a number of years have passed since the Rome Statute was written, and that while there is no international consensus on LGBT rights, the international community has generally moved towards tolerance of LGBT people since the late 1990’s.

However, even if the Rome Statute’s language is amended to include the LGBT community as a protected group, there is no guarantee that the Office of the Prosecutor will choose to investigate crimes related to the persecution of LGBT people. Fatou Bensouda, the Chief Prosecutor of the ICC, is not an outspoken advocate for LGBT rights; she served as the Attorney General and Minister of Justice of the Gambia[24], where homosexuality is illegal[25]. In addition, Bensouda served as the Chief Legal Advisor to Gambian President Jammeh[26], known for his violent homophobic rhetoric. He is infamously quoted as promising to “fight these vermins called homosexuals or gays the same way we are fighting malaria-causing mosquitoes, if not more aggressively”[27].

Bensouda’s personal views and possible career aspirations (particularly in her home country) must be evaluated when deducing the likelihood of her using her influence as Chief Prosecutor to prosecute perpetrators of anti-LGBT violence, particularly given the ICC’s limited budget. With her positionality as an African woman, Bensouda has a unique opportunity to be a voice for change in Africa, through demonstrating that anti-LGBT persecution will not be ignored on the international stage.

Furthermore, the question of what happens to victims of violence targeting LGBT people after a case has concluded at the ICC must be answered. Literature discussing reparations at the ICC more broadly is also applicable to discussions surrounding crimes targeting LGBT people; scholars Andrea Durbach and Louise Chappel argue that reparations at the ICC ought to be transformative rather than restitutive, as a restitutive approach returns victims to their pre-conflict state, which in turn can exacerbate post-conflict tensions and disrupt the process of seeking justice.[28] The prosecution of a single leader or group of leaders for violence against LGBT people will have little impact on victims if there exists a culture where violence against LGBT people has popular support, as another leader or group of leaders may resume persecution where the last left off. Of course, the prosecution of the individual is necessary and often an important part of the healing process for victims, but it must be accompanied by further change. It is unclear how the ICC could do this through its current reparations model.

As a major international organization, the ICC does have a role in the “[dissemination of] global cultural norms and ideas”[29][30] around LGBT rights, but the organization’s own contestation limits its ability to promote those norms at present. The ICC is still a relatively new organization seeking legitimacy; however, by building the protection of LGBT people into its legislation today, the ICC will be better equipped to promote the acceptance of LGBT people in the future once its role in the international community is less contested.

Additionally, improved training of the ICC’s legal investigators is needed to encourage the investigation of LGBT-related crimes, whether as stand-alone crimes against humanity or as a facet of another crime.[31] Adding more LGBT people to a team of investigators does not necessarily result in better investigation of anti-LGBT persecution; the ability to recognize violence targeting LGBT people and respond appropriately is not necessarily innate, but can be improved through training for people of all sexual orientations and gender identities.[32]

Investigators ought to be trained by local LGBT organizations on how to approach sensitive topics when conducting interviews in a way that is culturally appropriate, and that protects the safety and wellbeing of both the interviewer and interviewee. Additionally, increased training on how to detect sexual crimes, and how to interview victims of sexual violence with care and dignity is also important, considering the frequency with which anti-LGBT violence is accompanied by or commited through sexual violence (eg. forced anal examinations). A combination of training on detecting anti-LGBT violence and sexual violence would likely increase the number of crimes detected by ICC investigators, strenghtening cases and rendering them more likely to continue to the trial stage.


Due to the high-profile debates around the ICC’s utility as a tool for justice in Africa more broadly, the effective adjudication of LGBT persecution is pivotal for the ICC to build its influence and legitimacy. Homophobia and transphobia are rampant in Africa, built on religious conservatism and distorted ideas of pre-colonial African culture inherited from colonial depictions of the “primitive man”.

It is unacceptable that the legislation governing the world’s highest court whose raison d’être is to seek justice for victims of systematic violence excludes a minority group that is so widely persecuted. The Rome Statute must be amended to include LGBT people as a protected group, and to update its current antiquated definition of gender born out of a compromise between feminist and conservative groups.

ICC investigators ought to be trained more comprehensively on how to detect and approach LGBT-related crimes in a culturally sensitive way. As a relatively new institution that has been subject to harsh criticism from a number of African figures, the ICC is currently fighting to maintain its legitimacy as a legal institution. As the ICC’s legitimacy grows over time, it will have greater opportunities to create positive norms around the human rights of LGBT Africans, and to prosecute the crimes of leaders who violate them.


[1] Thabo Mbeki and Mahmood Mamdani, “Courts Can’t End Civil Wars,” The New York Times, February 5, 2014, https://www.nytimes.com/2014/02/06/opinion/courts-cant-end-civil-wars.html)

[2] Rome Statute of the International Criminal Court, Article (5), Jul. 17, 1998, 2187 U.N.T.S. 90

[3] “How the Court Works,” International Criminal Court, accessed June 16, 2020, https://www.icc-cpi.int/about/how-the-court-works).

[4] Rome Statute of the International Criminal Court, Article (7)(3), Jul. 17, 1998, 2187 U.N.T.S. 90

[5]“Which Countries Criminalise Homosexuality?,” Out Life, December 2019, https://www.outlife.org.uk/which-countries-criminalise-homosexuality?gclid=CjwKCAjwguzzBRBiEiwAgU0FT9bYTIvmnBUoyOE5AQDoN5Cn_VpoGZHRwWJS8P9Wus96BzAgAmuU3RoCGyMQAvD_BwE)

[6] Michael Bohlander, “Criminalising LGBT Persons Under National Criminal Law and Article 7(1)(h) and (3) of the ICC Statute,” Global Policy 5, no. 4 (June 2014), https://doi.org/10.1111/1758-5899.12136, p.402.

[7] Busangokwakhe Dlamini, “Homosexuality in the African Context,” Empowering Women for Gender Equity 20 (2006): p.131, https://www.tandfonline.com/doi/pdf/10.1080/10130950.2006.9674706?needAccess=true)

[8] Dlamini, “Homosexuality in the African Context,” p.132.

[9] Dlamini, “Homosexuality in the African Context,” p.132.

[10] Dlamini, “Homosexuality in the African Context,” p.133.

[11] Terrence Ranger, “The Invention of Tradition in Colonial Africa,” in The Invention of Tradition (Cambridge: Cambridge University Press, 1983), pp.249-250.

[12] Ruth Maclean, “Zuma Pulls South Africa out of ICC,” The Times (The Times, October 12, 2015), https://www.thetimes.co.uk/article/zuma-pulls-south-africa-out-of-icc-ccch2vng3jg).

[13] Rome Statute of the International Criminal Court, Article (7)(1)(h), Jul. 17, 1998, 2187 U.N.T.S. 90

[14] Rome Statute of the International Criminal Court, Article (7)(3), Jul. 17, 1998, 2187 U.N.T.S. 90

[15] “Gender and Genetics,” World Health Organization, accessed March 26, 2020, https://www.who.int/genomics/gender/en/)

[16] Charles Barrera Moore, “‘Embracing Ambiguity and Adopting Propriety: Using Comparative Law to Explore Avenues for Protecting the LGBT Population under Article 7 of the Rome Statute of the International Criminal Court,” Minnesota Law Review 101, no. 3 (February 2017), p.1300.

[17] Barrera Moore, “‘Embracing Ambiguity and Adopting Propriety” p.1301.

[18] Barrera Moore, “‘Embracing Ambiguity and Adopting Propriety” p.1301.

[19] Barrera Moore, “‘Embracing Ambiguity and Adopting Propriety” p.1301.

[20] Barrera Moore, “‘Embracing Ambiguity and Adopting Propriety” p.1304.

[21] Rome Statute of the International Criminal Court, Article (7)(1)(h), Jul. 17, 1998, 2187 U.N.T.S. 90

[22] Charles Barrera Moore, “‘Embracing Ambiguity and Adopting Propriety: Using Comparative Law to Explore Avenues for Protecting the LGBT Population under Article 7 of the Rome Statute of the International Criminal Court,” Minnesota Law Review 101, no. 3 (February 2017), p.1306.

[23] Vienna Convention on the Law of Treaties art. 53, May 23, 1969, K.A.V. 2424.

[24] “Ms Fatou Bensouda – Who’s Who,” International Criminal Court, accessed March 26, 2020, https://www.icc-cpi.int/about/otp/who-s-who/pages/fatou-bensouda.aspx)

[25] “Which Countries Criminalise Homosexuality?,” Out Life, December 2019, https://www.outlife.org.uk/which-countries-criminalise-homosexuality?gclid=CjwKCAjwguzzBRBiEiwAgU0FT9bYTIvmnBUoyOE5AQDoN5Cn_VpoGZHRwWJS8P9Wus96BzAgAmuU3RoCGyMQAvD_BwE)

[26] “Ms Fatou Bensouda – Who’s Who,” International Criminal Court, accessed March 26, 2020, https://www.icc-cpi.int/about/otp/who-s-who/pages/fatou-bensouda.aspx)

[27]David Lewis, “Gambia’s Jammeh Calls Gays ‘Vermin’, Says to Fight like Mosquitoes,” Reuters, February 6, 2014, https://www.reuters.com/article/us-gambia-homosexuality/gambias-jammeh-calls-gays-vermin-says-to-fight-like-mosquitoes-idUSBREA1H1S820140218)

[28] Durbach, Andrea, and Louise Chappell, “Leaving Behind the Age of Impunity.” International Feminist Journal of Politics 16, no. 4 (March 2014): p.548. https://doi.org/10.1080/14616742.2014.941251

[29] Louisa Lisle Hay Roberts, “The Globalization of the Acceptance of Homosexuality: Mass Opinion and National Policy” (dissertation, 2017), p.78.

[30] John W Meyer et al., “World Society and the Nation‐State,” The American Journal of Sociology 103, no. 1 (July 1997): p.162.

[31] Gallagher, Maryann E., Deepa Prakash, and Zoe Li, “Engendering Justice: Women and the Prosecution of Sexual Violence in International Criminal Courts.” International Feminist Journal of Politics (2019), p.18. https://doi.org/10.1080/14616742.2019.1666025.

[32] Gallagher, Prakash, and Li, Engendering Justice: Women and the Prosecution of Sexual Violence in International Criminal Courts.” International Feminist Journal of Politics (2019), p.5.