Constructive Ambiguity and the Meaning of “Gender” for the International Criminal Court

Abstract

The 1998 negotiations surrounding the inclusion of the term “gender” in the International Criminal Court's (ICC) Rome Statute were polarized, resolved only by resorting to constructive ambiguity: indefinite language used to resolve disparate points of view. Resorting to constructive ambiguity in defining the term permitted its retention in the Statute – widely viewed as a positive outcome – but it also led to continuing dissention about the actual meaning of that definition. A number of feminist commentators have critiqued the definition as narrow without deeply or strategically engaging with it, and conservative commentators have used these critiques as “evidence” that the definition must be narrow. The ICC itself has largely refrained from interpreting the term, with the exception of the Prosecutor in a 2014 draft policy document, while the Holy See has attempted to impose in other international fora its exclusionary understanding of the ICC's definition. This article begins with an overview of the Rome Statute discussions on “gender.” It then analyzes responses to this definition since 1998, illustrating that the use of constructive ambiguity has led to continuing contestation rather than certainty. It concludes by considering the usefulness of resorting to constructive ambiguity to define highly-contested terms.