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The LGBT+ community is exposed to extreme levels of violence and receives little to no protection under domestic laws against the same. The killing, torture, criminalization, discrimination and detention of persons belonging to the LGBT+ community as a result of their real or perceived gender identity or sexual orientation has been highlighted in the first ever report of the United Nations. This report details a multitude of human rights' violations of the community. The risk of occurrence of such violations are especially heightened during situations of armed conflict. For instance, in 2014, the Islamic State declared a war on the LGBT+ community in Iraq and released several videos in which those suspected to be or identified as homosexuals were executed. It has further been highlighted that the then Iraqi Government did not fulfill its fundamental obligation of protecting the human rights of LGBT+ persons. Additionally, the security forces were either non-responsive to the violations of the rights of the community, or actively participated in the same. In this context, it is important to emphasize that a well-known war tactic reported to have been used in at least 25 conflicts is the perpetration of sexual violence against men. The perpetrator of a male-male sexual violence generally resorts to labeling the victim as ‘homosexual’ or ‘feminine’. In addition to the physical harm, there is potential psychological and emotional harm to the victim. This is because destructive stereotypes associated with gender identities and sexual orientation are such that attributes of homosexuality and femininity are perceived as weaknesses.
However, such extreme violence and discrimination by the armed forces against the LGBT+ community is also perplexing, considering that the basic goals of armed forces are not directly threatened by this community, unlike groups based on ethnic or religious identity. Within this frame of reference, it must be highlighted that States which support and legitimize the use of violence are more probable to be confronted with terrorism or armed conflict. This takes place due to a spillover process, wherein the State’s action of using violence is modeled by groups in their own interactions when such violence by the State gains popular support. Violence can be legitimized by States in two ways: either they actively participate in violence or they allow violence to go unpunished. Therefore, non-State actors can be expected to target the LGBT+ community if the State engages in similar practices.
Consensual same-sex relationships have been criminalized in at least 76 countries, exposing millions to the risk of being arrested, persecuted, imprisoned and in at least 5 countries, killed. Article 520 of Syria’s Penal Code 1949 criminalizes “unnatural sexual intercourse”, which has been made punishable with imprisonment up to three years. Syria, among many other countries, witnessed targeting of men and women on suspicion of their sexual orientation and reports suggest that those suspected to belong to the LGBT community were subjected to rape, torture and kidnapping by non-State armed groups.
Social Cleansing: A Reprehensible Practice against Minorities
Violence against LGBT+ persons has also been recognized as a method of ‘social cleansing’. It has been noted that ‘cleansing’ is exercised when those who are perceived to be dissenting from acceptable social norms are subjected to violence. For instance, in Colombia, reports have highlighted that armed forces often engaged in ‘corrective rape’ of lesbians and trans women. The practice of social cleansing of ‘disposables’ was extensive in Colombia during the war- ‘disposables’ referring to criminals, prostitutes, the homeless, sexual minorities and so on. In the early 1990's, in Colombia, sexual minorities faced extreme acts of atrocities carried out by several social cleansing squads. Social cleansing of gender and sexual minorities was excessively and frequently carried out by the United Self-Defense Forces of Colombia, who killed these minorities as a result of their social unacceptability.
Legal Protection of Sexual Minorities: Laudable Intention, Lackluster Implementation
Discrimination on grounds of sexual orientation and gender identity have been explicitly or implicitly prohibited by various international treaties, including Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and Office of the High Commissioner for Human Rights (OHCHR). It has been established that discriminating against sexual minorities is illegal, and international human rights laws guarantee the right to equality and non-discrimination to all persons, irrespective of their sex, sexual orientation and gender identity. The General Assembly has highlighted that it is the duty of the government to guarantee to all persons under its jurisdiction the right to life. It called upon governments to conduct investigations into killings which were driven by discriminatory reasons, including sexual orientation. Additionally, States were instructed by the General Assembly to have zero tolerance for such killings, whether committed by police, paramilitary groups or security forces. Currently, the rights of LGBT persons are not explicitly protected under international humanitarian law (IHL). However, IHL brings within its ambit all persons adversely impacted by armed conflicts; specifically, those not actively involved in hostilities. For example, Article 16 of the Third Geneva Convention prohibits adverse distinction between prisoners of war based on sex, religion, etc., and “any other distinction founded on similar criteria”. It is suggested that this phrase includes within its ambit sexual orientation and gender identity, which can be derived from the ground of “sex”. Further, there are certain vulnerable groups which are granted special protection under IHL, such as women, children, the elderly and so on. It has, therefore, been noted that LGBT persons shall be protected under IHL by virtue of – firstly, not being actively engaged in hostilities; and secondly, belonging to a group whose vulnerability increases in situations of armed conflicts.
Conclusion
While sexual minorities are protected under international laws, the goal of equal treatment of all cannot be achieved without the conformity of domestic laws with standards established by international laws and treaties. The role played by states in the protection of sexual minorities is the most significant of all, and hence, states must recognize their obligation towards the LGBT community and enforce or modify laws accordingly. The fight against discriminatory and cruel treatment of sexual minorities begins within the states, when states establish that such treatment is illegal and shall not go unpunished.
This article has been authored by Aditi Behura, a third year student of National Law University, Delhi.