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Introduction
The 21st century was coveted to be the era of equality, freedom and liberty. Sadly, that is not our reality. Two decades in, discrimination based on gender remains rampant and violence based on sexual orientation continues. In recent past, women’s rights movements have seen great success world over. However, the LGBTQIA+ movement is still catching on, especially since a huge chunk of this community remains closeted due to fear of violence, persecution, torture as well as the stigma and judgement.
Against this backdrop, we examine the challenges the LGBTQIA+ community faces in situations of armed conflict. In some regimes even those who are ‘believed’ to be members of this community are tortured, punished and brutally killed. Even in peace time, circumstances are not in their favor, but in situations of armed conflict where violence can go unchecked, they are exposed to additional threats.
If testimonials from Syria and Iraq are to be believed, men and women accused of being homosexuals are thrown off high-rise buildings. Many are also sold off to armed groups by their friends, family members, neighbors, etc. However, this is not all. The LGBTQIA+ community falls victim to all kinds of sexual violence, ranging from rape to forced vaginal and anal examinations as well as forced stripping. These crimes are perpetrated by the Government as well as the Armed Groups.
It is not difficult to imagine the fear this violence must instill in those who are open members of this community and especially those who are still struggling with their sexuality. Most of the individuals from such communities have to suppress their true identities in fear of such violence. As a consequence, members of the LGBTQIA+ community suffer from mental, emotional as well as physical trauma.
Protection under International Humanitarian Law (IHL)
In circumstances as grave as these, it becomes pertinent to discuss how their rights can be protected. Human rights agencies around the world have put great effort in this direction. Various treaty bodies like the Committee Against Torture (CAT), Committee on Economic, Social and Cultural Rights (CESCR), Committee on the Elimination of Discrimination against Women (CEDAW) etc., have time and again stressed that discrimination based on gender identity and sexual orientation is strictly prohibited and that all human beings irrespective of their gender, need to be treated humanely.
The applicability of IHL with reference to protection of the LGBTQIA+ community is contingent upon two factors:
There has to be a link between the presumed gender identity/ sexual orientation and the abuse
The act of violence should have adequate nexus to the armed conflict.
IHL provides special protection to different groups of people depending on their vulnerabilities and although the LGBTQIA+ community has not been mentioned in any of the instruments of IHL, it is inferred that they are included based on the principles of humane treatment as well as the prohibition on adverse distinction of any kind. It can be gathered from an ICRC Commentary on the Geneva Convention that Article 13 of the Geneva Convention IV covers the entire population of places in conflict, without any adverse distinction based on nationality, race, religion or political opinion. This list in not exhaustive and gender identity as well as sexual orientation can be read into it.
The Geneva Convention requires that in cases where any LGBTQIA+ person has been treated in breach of IHL, the concerned State is to investigate and proceed to prosecute those responsible. It is noteworthy that under IHL, the State will not only be answerable for the actions of its armed forces but also for their failure to prevent, investigate and prosecute. The Rome Statute states that the International Criminal Court can prosecute rape as well as other forms of violence as ‘war crimes’. Similarly, under the International Criminal Tribunal of Rwanda (ICTR) & the International Criminal Tribunal of the former Yugoslavia (ICTY), rulings wherein acts of rape committed in the midst of armed conflict were deemed to be war crimes were punished accordingly.
Ill-treatment in detention being a grave concern, IHL imposes upon all, the requirement of treating all detainees humanely. Any inhuman penalties, brutalities and punishments are banned under IHL, especially those targeted at any specific medical condition that the individuals may have. Here, we can take example of the Israeli Prison Service’s policy directive which deals with handling of detainees belonging to the LGBTQIA+ community. The directive states that all such detainees are supposed to be kept separately for five days and then based on their stage of transition transferred to the male or female wing, depending on their choice. It also states that such individuals should be given a choice between having a male or female guard perform a search on their body.
A vital measure of protection is provided via the principle of non-refoulement, which concerns itself with the transfer of detainees from one state to another. It imposes prohibition on the transfer of an individual in any circumstance where stands any risk or irreparable harm, like the risk of subjection to torture, by the State receiving or one to which the individual maybe sent later. Fear of persecution is also a ground under the principle. According to Geneva Convention IV, such fear may be based on differences in political views and religious beliefs, too. As in some states, being a part of the LGBTQIA+ community is seen as against the value system of the state and even the religion that they prescribe to. There is also threat of persecution to such individuals as their way of life can be seen as a challenge to the existing social values and norms.
Although these principles exist, ensuring their compliance is a feat not easily achieved. Thus, it becomes necessary to put effort in the direction of repealing the anti-LGBTQIA+ laws in these states. This step could go a long way in protecting the community. However, there is the issue of how the Occupying Power is supposed to repeal such a socially sensitive law in time of turmoil. Although the Law of Occupations imposes many limitations upon introducing changes, certain exceptions do exist. The Occupying Power can introduce any change necessary for the safety of its Armed Forces and where the change is to the benefit of the local population, as well as their security.
In its commentaries the International Committee of Red Cross states that Article 64 of Geneva Convention IV ensures that an Occupying Power can suspend or repeal any law which poses ‘an obstacle to the application of the present Convention’. The commentaries include civil as well as penal law under the ambit of the Occupying Power’s legislative authority, whereas the section only mentions penal laws. One may argue that introducing such drastic changes may cause unrest in the local population and further endanger the LGBTQIA+ community. However, on the other hand one may also argue that if an Occupying Power is to repeal such a Law, they will be more likely to ensure its compliance and hence, the LGBTQIA+ community maybe better protected.
Ground Reality
Members of the LGBTQIA+ community are protected under IHL, just as other communities are. However, upon a closer look, one does realize that these protections however stringent they maybe in words, are not enough. If the Occupying Power, the Government and the local population do not accept it, there are few ways to bring compliance. More so, even if a regime is serious about upholding the tenets of IHL, it is next to impossible to keep an eye on the compliance during situations of armed conflict, because the machinery of the State is most likely broken.
The LGBTQIA+ community continues to face human rights violations around the world, their rights continue to be violated as their torture continues. It is unfortunate that in addition to these traumas, they face a plethora of other challenges, especially in unstable and oppressive regimes. Most people spend their entire lives closeted, in fear of violence, torture & persecution. This fear is not limited to times of unrest but lives with them throughout their lives. Their treatment and condition remain deplorable no matter the circumstance.
One of the biggest roadblocks in affecting real change is the deep-seated negative sentiment which prevails across the world against this community. This already negative environment can become increasingly hostile in times of armed conflict. These sentiments can be slowly turned favorable by raising awareness, spreading reliable information, educating all concerned parties, but this is a long process and will take time, time which the LGBTQIA+ community does not have because even though the LGBTQIA+ movement has received a lot of support in countries like USA, Australia, Sweden, Netherlands, New Zealand etc., there still exist conservative countries like Iran, Saudi Arabia, Pakistan etc., where millions of LGBTQIA+ individuals live in constant fear of their repressive regimes. Sadly, we find ourselves coming across news which shows liberation and change but we forget that in conservative countries with lack of freedom of press, there exist millions of untold stories of inexplicable violence and torture. This is why their situation is time sensitive and requires immediate response.
Conclusion
Despite the existence of a broad legal framework, the treatment of the LGBTQIA+ community is deplorable, the horrors they face during armed conflict are unimaginable. Ultimately, we hit the age-old dilemma of the realm of law, we can legislate as much as we like, but as long as the benefit does not reach the ones who need it, these laws remain nothing but dead letter.
In this environment, the concept of repealing anti-LGBTQIA+ laws is the best course of action, for short term security of the community. It is surely not an easy course but it is the only one which may reap real benefits for the safety of the community. Of course, stringent measures can be adopted to ensure total compliance, but such a system cannot function forever. A real change will only reflect when awareness is spread, people are educated and reliable facts are shared with them. Only when we systematically uproot the foundation of discrimination will the LGBTQIA+ community be truly safe.
This article has been authored by Vipasha Singh, a final year student of National Law Institute University, Bhopal.