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Still a blind spot: The protection of LGBT persons during armed conflict and other situations of violence

Published online by Cambridge University Press:  03 May 2019

Alon Margalit
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Abstract

This article draws attention to the situation of LGBT persons during armed conflict. Subjected to violence and discrimination outside the context of armed conflict, the latter aggravates their vulnerability and exposure to various abuses. Despite important progress made with respect to their protection under human rights law, a similar effort is largely absent from the international humanitarian law discourse. This article accordingly highlights some of the norms and challenges pertaining to the protection of LGBT persons in time of war.

Keywords

international humanitarian lawLGBTsexual orientationgender identityarmed conflictprotectiondiscriminationnon-refoulementsexual violence
Type
Selected articles
Information
International Review of the Red Cross , Volume 100 , Issue 907-909: 150 years of humanitarian reflection , April 2018 , pp. 237 - 265
Copyright
Copyright © icrc 2019 

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Footnotes

*

The author wishes to thank Adrian Garcia, Miya Keren-Abraham, the editorial team and the anonymous reviewer for their valuable comments on an earlier draft. The author may be reached at alonmar@gmail.com.

References

1 The practice reviewed in this article concerns the treatment of LGBT persons. The term “sexual orientation” refers to a person's physical and emotional attraction towards others, while “gender identity” concerns a person's self-perceived identity, as well as its expression, which may be different from the sex assigned at birth: see United Nations (UN) Office of the High Commissioner for Human Rights (OHCHR), Report of the Independent Expert on Protection against Violence and Discrimination Based on Sexual Orientation and Gender Identity, UN Doc. A/HRC/72/172, 19 July 2017, para. 2. For further explanation of key terms and concepts, see OHCHR, Living Free and Equal, New York and Geneva, 2016, pp. 18–19, available at: www.ohchr.org/Documents/Publications/LivingFreeAndEqual.pdf (all internet references were accessed in March 2019).

2 See OHCHR, “Azerbaijan: UN Rights Experts Alarmed by Reports of Persecution of People Perceived to be Gay or Trans”, 13 October 2017, available at: www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=22230&LangID=E; Human Rights First, “Raids in Belarus, Death in Chechnya Continue Alarming Assault on LGBT Community”, 24 October 2017, available at: https://www.humanrightsfirst.org/press-release/raids-belarus-death-chechnya-continue-alarming-assault-lgbt-community; Human Rights Watch (HRW), “Egypt: Mass Arrests Amid LGBT Media Blackout”, 6 October 2017, available at: www.hrw.org/news/2017/10/06/egypt-mass-arrests-amid-lgbt-media-blackout; Georgetown Law Human Rights Institute, Uniformed Injustice: State Violence Against LGBT People in El Salvador, Washington, DC, 21 April 2017, available at: www.law.georgetown.edu/human-rights-institute/our-work/fact-finding-project/uniformed-injustice/; Owen Bowcott, “Uganda Anti-Gay Law Led to Tenfold Rise in Attacks on LGBTI People, Report Says”, The Guardian, 12 May 2014.

3 Haeyoun Park and Iaryna Mykhyalyshyn, “LGBT People Are More Likely to Be Targets of Hate Crimes than Any Other Minority Group”, The New York Times, 16 June 2016, available at: www.nytimes.com/interactive/2016/06/16/us/hate-crimes-against-lgbt.html.

4 Outright Action International, Exposing Persecution of LGBT Individuals in Iraq, 19 November 2014, available at: www.outrightinternational.org/content/exposing-persecution-lgbt-individuals-iraq.

5 Human Rights Council (HRC), Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/25/65, February 2014, paras 67, 70.

6 OHCHR, Discrimination and Violence against Individuals Based on Their Sexual Orientation and Gender Identity, UN Doc. A/HRC/29/23, 4 May 2015, para. 31; Graeme Reid, “The Double Threat for Gay Men in Syria”, Washington Post, 25 April 2014.

7 Reports of the UN Secretary-General, Conflict-Related Sexual Violence, UN Doc. S/2015/203, 23 March 2015, para. 61, and UN Doc. S/2016/361, 20 April 2016, para. 69; Michelle Nichols, “Gay Men Tell UN Security Council of Being Islamic State Targets”, Reuters, 25 August 2015.

8 G. Reid, above note 6; Heartland Alliance International, No Place for People Like You: An Analysis of the Needs, Vulnerabilities, and Experiences of LGBT Syrian Refugees in Lebanon, Chicago, IL, December 2014, p. 15, available at: www.heartlandalliance.org/wp-content/uploads/sites/13/2016/02/no-place-for-people-like-you_hai_2014.pdf.

9 Outright Action International, “Timeline of Publicized Executions for ‘Indecent Behavior’ by Islamic State Militias”, 2 April 2016, available at: www.outrightinternational.org/dontturnaway/timeline; OHCHR, above note 6, para. 29; Office of the United Nations Assistance Mission for Iraq and OHCHR, The Protection of Civilians in the Armed Conflict in Iraq: 1 November 2015–30 September 2016, December 2016, p. 10.

10 Report of the UN Secretary-General, 2015, above note 7, paras 6, 82–83.

11 Ibid., paras 14, 23; Sivakumaran, Sandesh, “Sexual Violence against Men in Armed Conflict”, European Journal of International Law, Vol. 18, No. 2, 2007CrossRefGoogle Scholar (discussing sexual violence against men in a number of conflicts, including in the former Yugoslavia).

12 Anuj Chopra, “Taliban Use Child Sex Slaves to Kill Afghan Police”, AFP, 19 June 2016, available at: www.yahoo.com/news/taliban-child-sex-slaves-kill-afghan-police-031230996.html.

13 Lewis, Dustin, “Unrecognized Victims: Sexual Violence against Men in Conflict Settings under International Law”, Wisconsin International Law Journal, Vol. 27, No. 1, 2009, pp. 7–9Google Scholar; S. Sivakumaran, above note 11, pp. 270–272; Jamil Santos, “Duterte's Claim that 40% of NPA Rebels Are Gay ‘Most Unbelievable’, Says Joma”, GMA News, 26 February 2019, available at: www.gmanetwork.com/news/news/nation/686188/duterte-s-claim-that-40-of-npa-rebels-are-gay-most-unbelievable-says-joma/story/.

14 Simon West, “Colombia's LGBTQ Community: Victims of Armed Conflict”, NBC News, 7 September 2016, available at: www.nbcnews.com/feature/nbc-out/colombia-s-lgbt-population-victims-armed-conflict-n643861; Michael K. Lavers, “Colombian LGBT Groups Endorse Peace Deal”, Washington Blade, 27 August 2017, available at: www.washingtonblade.com/2016/08/27/colombian-lgbt-groups-endorse-peace-deal; Rael Mora, “Peru: LGBT Community Targeted During Armed Conflict”, Telesur, 21 November 2014, available at: www.telesurenglish.net/news/Peru-LGBT-Community-Targeted-During-Armed-Conflict-20141121-0038.html.

15 Iraqueer et al., Dying to Be Free: LGBT Human Rights Violations in Iraq, 2015, p. 4, available at: www.law.cuny.edu/academics/clinics/hrgj/publications/ICCPR-Iraq-Shadow-Report-LGBT-ENG.pdf; HRW, Audacity in Adversity: LGBT Activism in the Middle East and North Africa, 2018, pp. 17–18, available at: www.hrw.org/sites/default/files/report_pdf/lgbt_mena0418_web_0.pdf; Inter-American Commission on Human Rights (IACHR), Violence against LGBTI Persons in the Americas, 12 November 2015, pp. 166–167, para. 296; IACHR, Truth, Justice and Reparation, 2013, pp. 406–408. Interestingly, the November 2016 Peace Agreement in Colombia recognizes that LGBT groups are among “the most vulnerable populations” who were victimized during the armed conflict, stressing the need to ensure their protection.

16 IACHR, Violence against LGBTI Persons in the Americas, above note 15, p. 159, para. 279, and p. 186, para. 345.

17 Ibid., pp. 109, 194. In these cases, the individuals concerned were raped because of their actual or perceived sexual orientation or gender identity, with the perverse intention of “correcting” the individual's sexual orientation or making them behave according to what is considered in conformity with their assigned biological sex.

18 Kate Bond and Anastasia Vlasova, Gay and Displaced on the Frontlines of Ukraine's Conflict, UN Office of the High Commissioner for Refugees (UNHCR), Donetsk, 15 September 2017, available at: www.unhcr.org/news/stories/2017/9/597ef1fc4/gay-displaced-frontlines-ukraines-conflict.html?query=LGBT; Justice for Peace in Donbas Coalition, LGBT Representatives in Donetsk Region Leave Their Homes Because of Persecution, 22 January 2016, available at: www.jfp.org.ua/rights/porushennia/violation_categories/henderno-obumovlene-nasylstvo/rights_violations/lbti-persecution-yenakiyevo?locale=en.

19 HRW, Country Profiles: Sexual Orientation and Gender Identity, 23 June 2017, available at: www.hrw.org/news/2017/06/23/human-rights-watch-country-profiles-sexual-orientation-and-gender-identity (referring to an April 2016 killing of LGBT persons by Al-Qaeda in the Indian Subcontinent).

20 Report of the UN Secretary-General, 2015, above note 7, paras 20, 30; IACHR, Violence against LGBTI Persons in the Americas, above note 15, paras 29, 296, 360; Outright Action International, When Coming Out is a Death Sentence: Persecution of LGBT Iraqis, November 2014, available at: www.outrightinternational.org/sites/default/files/ComingOutDeathSentence_Iraq_0.pdf. According to Human Rights Watch, dozens of men were abducted and killed during 2009 by Ahl Al-Haq and Mahdi militias as part of this “social cleansing” campaign; see HRW, “They Want Us Exterminated”: Murder, Torture, Sexual Orientation and Gender in Iraq, August 2009, available at: www.hrw.org/report/2009/08/17/they-want-us-exterminated/murder-torture-sexual-orientation-and-gender-iraq.

21 G. Reid, above note 6; Heartland Alliance International, above note 8, pp. 21–22. For the risks faced by LGBT refugees in camps and urban settings, see Women's Refugee Commission, Mean Streets: Identifying and Responding to Urban Refugees’ Risks of Gender-Based Violence, February 2016, p. 69, available at: www.womensrefugeecommission.org/gbv/resources/1272-mean-streets; UNHCR, Protecting Persons with Diverse Sexual Orientations and Gender Identities, December 2015, p. 28.

22 Nita Bhalla, “UN Moves LGBT+ Refugees to Safe Houses after Kenya Camp Attacks”, Reuters, 13 December 2018.

23 E.g., Iraqueer et al., above note 15; OHCHR, above note 6, para. 76.

24 Interestingly, outside the context of armed conflict, a survey conducted in the European Union in 2013 found that over a quarter of LGBT respondents were violently attacked or threatened in the preceding five years. This figure increases to more than one third (35%) for trans respondents, who appear to be the most victimized among LGBT persons. The survey further shows that most cases are not reported to law enforcement authorities as the victims assume the authorities will ignore the complaint, or they fear homophobic or transphobic reactions from the police. European Union Agency for Fundamental Rights, Professionally Speaking: Challenges to Achieving Equality for LGBT People, Luxemburg, March 2016, pp. 48–49, available at: www.fra.europa.eu/en/publication/2016/professional-views-lgbt-equality.

25 E.g., Committee Against Torture (CAT), General Comment No. 2, “Implementation of Article 2 by States Parties”, UN Doc CAT/C/GC/2, 24 January 2008, and General Comment No. 3, “Implementation of Article 14 by States Parties”, UN Doc. CAT/C/GC/2, 13 December 2012; Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 20, “Non-discrimination in Economic, Social and Cultural Rights (Art. 2)”, UN Doc. E/C.12/GC/202, July 2009; Committee on the Elimination of Discrimination against Women (CEDAW), “General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of the Convention”, UN Doc. CEDAW/C/GC/28, 16 December 2010.

26 Universal Declaration of Human Rights (adopted and proclaimed by UNGA Res. 217A(III) of 10 December 1948), Preamble.

27 Human Rights Committee, X. v. Sweden, Communication No. 1833/2008, 1 November 2011; CAT, General Comment No. 2, above note 25, paras 21–22.

28 OHCHR, Ending Violence and other Human Rights Violations Based on Sexual Orientation and Gender Identity: A Joint Dialogue of the African Commission on Human and Peoples’ Rights, Inter-American Commission on Human Rights and United Nations, Pretoria, 2016, pp. 12–13, 29, available at: www.ohchr.org/Documents/Issues/Discrimination/Endingviolence_ACHPR_IACHR_UN_SOGI_dialogue_EN.pdf.

29 Human Rights Committee, Toonen v. Australia, Communication No. 488/1992, 31 March 1994, and G. v. Australia, Communication No. 2172/2012, 28 June 2017 (noting that the prohibition against discrimination encompasses discrimination on the basis of gender identity, and highlighting the protection of the transgender complainant from arbitrary interference with her privacy and family life); Human Rights Committee, Concluding Observations: Ethiopia, UN Doc. CCPR/C/ETH/CO/1, 2011, para. 12, and General Comment No. 35, “Article 9 (Liberty and Security of Person)”, UN Doc. CCPR/C/GC/35, 16 December 2014; CESCR, Concluding Observations: Kyrgyzstan, UN Doc. E/C.12/ETH/CO/1-3, 2012, para. 8; CEDAW, Concluding Observations: Uganda, UN Doc. CEDAW/C/UGA/CO/7, 2010, paras 43–44; OHCHR, Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/2003/8, 2002, paras 68–70, 76.

30 UNGA Res. 71/198, 19 December 2016, para. 6; HRC, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on a Gender-Sensitive Approach to Arbitrary Killings, UN Doc. A/HRC/35/23, June 2017, paras 45, 47–48.

31 Human Rights Committee, X. v. Sweden, above note 27; CAT, J. K. v. Canada, Communication No. 562/2013, 25 November 2015; Human Rights Committee, General Comment No. 36, “Article 6 (Right to Life)”, UN Doc. CCPR/C/GC/36, 30 October 2018, paras 30, 36.

32 E.g., ECtHR, Identoba and Others v. Georgia, Appl. No. 73235/12, 12 May 2015; ECtHR, Karner v. Austria, Appl. No. 40016/98, 24 July 2003. For a comprehensive overview, see Paul Johnson, “The Council of Europe and the European Court of Human Rights” in Andreas R. Ziegler (ed.), International LGBTI Law: Sexual Orientation and Gender Identity Law from an International-Comparative Perspective, forthcoming.

33 ECtHR, Identoba, above note 32; ECtHR, Alekseyev v. Russia, Appl. No. 4916/07, 21 October 2010; ECtHR, M. C. and A. C. v. Romania, Appl. No. 12060/12, 12 April 2016.

34 ECtHR, Dudgeon v. United Kingdom, Appl. No. 7525/76, 23 September 1981.

35 ECtHR, Vallianatos and Others v. Greece, Appl. No. 29381/09, 7 November 2013; ECtHR, Oliari and Others v. Italy, Appl. No. 18766/11, 21 July 2015. The Court observed that the European Convention does not grant a right to same-sex marriage, but only access to “registered partnership” or “civil union”. See also Council of Europe, Parliamentary Assembly Res. 1728, 2010.

36 E.g., AG/RES. 2435 (XXXVIII-O/08), 3 June 2008; AG/RES. 2887 (XLVI-O/16), 14 June 2016, sec. xix.

37 Available at: www.oas.org/en/sla/dil/inter_american_treaties_A-69_discrimination_intolerance.asp (not yet entered into force).

38 IACtHR, Atala Riffo and Daughters v. Chile, Judgment, 24 February 2012, para. 91. See also, recently, the Court's advisory opinion recognizing the right to rectify public records and identity documents in accordance with the person's self-perceived gender identity, as well as the equal rights of same-sex couples, including their right to marry: IACtHR, Advisory Opinion OC-24/17 on Gender Identity, and Equality and Non-Discrimination of Same-Sex Couples, 24 November 2017.

39 OAS, “Rights of Lesbian, Gay, Bisexual, Trans and Intersex Persons”, available at: www.oas.org/en/iachr/lgtbi/.

40 Available at: www.achpr.org/instruments/economic-social-cultural/. For a detailed overview, see OHCHR, above note 28, p. 20.

41 ACHPR Res. 275, “Protection against Violence and other Human Rights Violations against Persons on the Basis of Their Real or Imputed Sexual Orientation or Gender Identity”, 2014, available at: www.achpr.org/sessions/55th/resolutions/275/.

42 UNGA Res. 57/214, 25 February 2003, para. 6.

43 Ibid. See also UNGA Res. 59/197, 10 March 2005; UNGA Res. 61/173, 1 March 2007; UNGA Res. 64/182, 16 March 2009; UNGA Res. 65/208, 30 March 2011; UNGA Res. 67/168, 15 March 2013; UNGA Res. 69/182, 30 January 2015.

44 UNSC Res. 2106, 24 June 2013.

45 HRC Res. 17/19, 17 June 2011; HRC Res. 27/32, 26 September 2014.

46 HRC Res. 32/2, 30 June 2016. The issue was also addressed by the Council's Special Procedures: see OHCHR, above note 28, p. 19. For example, the Special Rapporteur on violence against women, its causes and consequences pointed out that sexual orientation is a contributory factor to the risk of violence against women: Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences: Mission to India, UN Doc. A/HRC/26/38/Add.1, 1 April 2014, para. 19.

47 Joint UN Statement on Ending Violence and Discrimination against LGBTI People, 2015, available at: www.ohchr.org/EN/Issues/Discrimination/Pages/JointLGBTIstatement.aspx.

48 Remarks by the UN Secretary-General at High-level Side Event of the LGBT Core Group, 21 September 2016, available at: www.un.org/sg/en/content/sg/statement/2016-09-21/secretary-generals-remarks-high-level-side-event-lgbt-core-group.

49 The Yogyakarta Principles were updated in 2017. Available at: www.yogyakartaprinciples.org.

50 Same-sex sexual activity is currently criminalized in seventy States. In eleven States, the offence carries the death penalty. See International Lesbian, Gay, Bisexual, Trans and Intersex Association and Lucas Ramon Mendos, State-Sponsored Homophobia 2019, Geneva, March 2019, available at: https://ilga.org/downloads/ILGA_State_Sponsored_Homophobia_2019.pdf.

51 E.g., HRW, above note 15; HRC, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on His Mission to the Gambia, UN Doc. A/HRC/29/37/Add.2, May 2015, paras 78–79. See also Jeremy Sharon, “200 Leading Rabbis Call Gays ‘Perverts’, Oppose Gay Surrogacy”, Jerusalem Post, 25 July 2018.

52 HRC Res. 32/2, 30 June 2016.

53 Ibid.

54 Ibid.

55 International Covenant on Civil and Political Rights (ICCPR), 999 UNTS 171, 16 December 1966, Art. 18(3).

56 Human Rights Committee, General Comment No. 22, “Art. 18 (Freedom of Thought, Conscience or Religion)”, UN Doc. CCPR/C/21/Rev.1/Add.4, 27 September 1993, paras 5, 7, 9.

57 E.g., ECtHR, Lustig-Prean and Beckett v. UK, Appl. No. 31417/96, 27 September 1999, para. 90; Joint UN Statement, above note 47; cf. Human Rights Committee, General Comment No. 28, “Article 3 (The Equality of Rights between Men and Women)”, UN Doc. CCPR/C/21/Rev.1/Add.10, 29 May 2000, para. 5 (“States parties should ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women's right to equality before the law and to equal enjoyment of all Covenant rights”).

58 Statement by UN Secretary-General Ban Ki-Moon, 10 December 2010, available at: www.un.org/press/en/2010/sgsm13311.doc.htm.

59 E.g., Geneva Convention (III) relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (GC III), Art. 14; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (GC IV), Arts 14, 16, 89, 132; Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I), Arts 70, 76–77; Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study), Rules 134–135, 138.

60 International Court of Justice (ICJ), Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, para. 25; Human Rights Committee, General Comment No. 31, “The Nature of the General Legal Obligation Imposed on States Parties to the Covenant”, UN Doc. CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 11.

61 See, for example, ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, para. 106.

62 E.g., Andrew Clapham, “Human Rights Obligations for Non-State-Actors: Where Are We Now?”, in Fannie Lafontaine and François Larocque (eds), Doing Peace the Rights Way: Essays in International Law and Relations in Honour of Louise Arbour, forthcoming 2019, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2641390; Marco Sassòli, “Two Fascinating Questions: Are All Subjects of a Legal Order Bound by the Same Customary Law and Can Armed Groups Exist in the Absence of Armed Conflict? Book Discussion”, EJIL: Talk!, 4 November 2016, available at: www.ejiltalk.org/book-discussion-daragh-murrays-human-rights-obligations-of-non-state-armed-groups-3/; Geneva Academy, Human Rights Obligations of Armed Non-State Actors: An Exploration of the Practice of the UN Human Rights Council, December 2016, available at: www.geneva-academy.ch/joomlatools-files/docman-files/InBrief7_web.pdf.

63 ICRC, Commentary on the Second Geneva Convention: Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 2nd ed., 2017 (ICRC Commentary on GC II), para. 526 (Art. 3).

64 See subsection “Obligation to Respect and Ensure Respect for the Geneva Conventions” below. Article 1 common to the four Geneva Conventions; ICRC Commentary on GC II, above note 63, paras 165–205 (Art. 1); ICRC Customary Law Study, above note 59, Rule 139.

65 GC III, Art. 126; GC IV, Art. 76; ICRC Customary Law Study, above note 59, Rule 124. In non-international armed conflicts, the ICRC may offer its services to the parties to the conflict: see Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, 8 June 1977 (entered into force 7 December 1978) (AP II), Art. 18(1).

66 E.g., GC I, Art. 50; GC II, Art. 51; GC III, Art. 130; GC IV, Art. 147; AP I, Arts 11, 85; ICRC Customary Law Study, above note 59, Rule 156.

67 AP I, Art. 86(2). For war crimes specifically, see ICRC Customary Law Study, above note 59, Rules 151–153; Rome Statute of the International Criminal Court, 2187 UNTS 90, 17 July 1998 (entered into force 1 July 2002), Arts 8, 28.

68 GC IV, Art. 146; ICRC Customary Law Study, above note 59, Rule 157.

69 See, generally, Henckaerts, Jean-Marie, “Study on Customary IHL: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict”, International Review of the Red Cross, Vol. 87, No. 857, 2005, pp. 177–178CrossRefGoogle Scholar.

70 Gaggioli, Gloria, “Sexual Violence in Armed Conflicts: A Violation of International Humanitarian Law and Human Rights Law”, International Review of the Red Cross, Vol. 96, No. 894, 2014, pp. 514–517CrossRefGoogle Scholar.

71 Cf. International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Tadić, Case No. IT-94-1-T, Judgment (Trial Chamber), 7 May 1997, paras 572–573 (“The only question, to be determined in the circumstances of each individual case, is whether the offences were closely related to the armed conflict as a whole”); ICTY, Prosecutor v. Kunarac, Case No. IT-96-23&23/1 (Appeals Chamber), 12 June 2002, para. 58; but see International Criminal Tribunal for Rwanda, Prosecutor v. Kayishema, Case No. ICTR-95-1-T, Judgment (Trial Chamber), 21 May 1999, paras 599–604, 623 (noting that the fact that the alleged crimes were committed during armed conflict is insufficient, and requiring a direct link between these crimes and the armed conflict).

72 Cf. Report of the UN Secretary-General, 2015, above note 7, para. 2 (defining conflict-related sexual violence).

73 ICRC Commentary on GC II, above note 63, para. 569 (Art. 3); International Criminal Court, Prosecutor v. Bosco Ntaganda, Case No. ICC-01/04-02/06-1962, Judgment (Appeals Chamber), 1 June 2017. But see Kevin Jon Heller, “ICC Appeals Chamber Says a War Crime Does Not Have to Violate IHL”, Opinio Juris, 15 June 2017, available at: www.opiniojuris.org/2017/06/15/icc-appeals-chamber-holds-a-war-crime-does-not-have-to-violate-ihl/.

74 See above note 59.

75 Common Art. 3; GC IV, Art. 27; AP I, Art. 75; AP II, Art. 4; ICRC Customary Law Study, above note 59, Rule 87.

76 GC III, Arts 13–14; GC IV, Art. 27.

77 ICRC Commentary on GC II, above note 63, para. 575 (Art. 3).

78 GC III, Art. 16; GC IV, Art. 27; AP I, Arts 9, 75; AP II, Art. 2; ICRC Customary Law Study, above note 59, Rule 88.

79 ICRC Commentary on GC II, above note 63, paras 591–592 (Art. 3).

80 Cf. Human Rights Committee, Toonen, above note 29, para. 8.7; CESCR, above note 25, para. 32.

81 See ICRC Commentary on GC II, above note 63, paras 595–598 (Art. 3).

82 E.g., Hague Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land, 205 CTS 277, 1907 (entered into force 27 January 1910) (Hague Regulations), Art. 46; GC IV, Art. 27; AP I, Art. 75(1); AP II, Art. 4.

83 ICCPR, Preamble and Arts 2(1), 4, 6, 26.

84 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, para. 218; Jean Pictet (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. 4: Geneva Convention relative to the Protection of Civilian Persons in Time of War, Geneva, 1958 (ICRC Commentary on GC IV), p. 204 (“The obligation to grant protected persons humane treatment is in truth the ‘leitmotiv’ of the four Geneva Conventions”).

85 Outright Action International, above note 20, p. 10; Iraqueer et al., above note 15; OHCHR, above note 6, para. 76; Nick Duffy, “Russian Police Won't Protect Gay People from Violent Threats”, Pink News, 19 September 2018, available at: www.pinknews.co.uk/2018/09/19/russia-police-homophobic-hate-speech/.

86 Common Art. 1; ICRC Customary Law Study, above note 59, pp. 495–498 (Rule 139).

87 ICRC Commentary on GC II, above note 63, para. 167 (Art. 1).

88 On commanders’ responsibility to suppress IHL violations, see AP I, Arts 86(2), 87; ICRC Customary Law Study, above note 59, Rule 153.

89 E.g., GC IV, Art. 146; ICRC Customary Law Study, above note 59, Rule 158.

90 ICRC Commentary on GC II, above note 63, para. 172 (Art. 1). See also Human Rights Committee, above note 60, para. 8.

91 ICRC Commentary on GC II, above note 63, para. 142 (Art. 1); ICRC Customary Law Study, above note 59, pp. 511–513 (Rule 144).

92 E.g., Hagar Shezaf and Jonathan Jacobson, “Revealed: Israel's Cyber-Spy Industry Helps World Dictators Hunt Dissidents and Gays”, Haaretz, 20 October 2018; Nico Lang, “The Danger of Tinder's LGBT-friendly Upgrade: How the Dating App Could Be Used to Target Trans Users”, Salon, 18 November 2016, available at: www.salon.com/2016/11/17/the-danger-of-tinders-lgbt-friendly-upgrade-how-the-dating-app-could-be-used-to-target-trans-users/ (describing the exploitation of dating apps by security forces in order to identify LGBT users and their exact location).

93 ICRC Commentary on GC II, above note 63, paras 142, 176, 182, 189 (Art. 1).

94 E.g., Outright Action International, “U.S.-Africa Trade Summit Must Not Ignore Cost of Denying LGBT Human Rights”, 29 July 2014, available at: https://outrightinternational.org/content/us-africa-trade-summit-must-not-ignore-cost-denying-lgbt-human-rights.

95 In particular, see AP I, Arts 51, 57 (reflective of customary IHL).

96 See above note 50.

97 E.g., OHCHR, above note 29; OHCHR, above note 2; OHCHR, “The Gambia: Zeid Criticizes Harsh Legal Amendment, Violence and Arrests Targeting Gay Men and Lesbians”, 20 November 2014, available at: www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15318&LangID=E.

98 GC III, Art. 21; GC IV, Arts 42, 78.

99 Common Art. 3; GC IV, Arts 68, 71, 76; AP I, Art. 75.

100 GC IV, Art. 146.

101 Report of the UN Secretary-General, 2015, above note 7, para. 6; OHCHR, above note 6, para. 36.

102 GC III, Art. 13; GC IV, Arts 27, 32, 37; AP I, Arts 11, 75; AP II, Art. 5; ICRC Customary Law Study, above note 59, Rules 89–91, 93.

103 GC IV, Arts 100, 119.

104 Similar detention standards apply to women and children: see GC III, Arts 25, 97, 108; GC IV, Arts 76, 85, 124; AP I, Art. 77; ICRC Customary Law Study, above note 59, Rules 119–120.

105 Israel Prison Service, Admission of Transgender Detainees and Guidelines for Their Admission: Policy, 5 March 2018, available at: https://tinyurl.com/y66ktvxl; Lee Yaron, “Transgender Inmates Will No Longer Be Kept in Isolation, Israel Prison Service Announces”, Haaretz, 17 April 2018, available at: www.haaretz.com/israel-news/.premium-transgender-prisoners-won-t-be-put-in-isolation-anymore-1.6009178.

106 Israel Prison Service, above note 105, Arts 3, 6, 11–12; Supreme Court of Israel, Doreen Biliya v. IPS, HCJ 5480/17, 4 July 2018; cf. IACHR, Violence against LGBTI Persons in the Americas, above note 15, pp. 102–103, para. 155 (describing the practice in OAS member States). See also US Federal Bureau of Prisons, Transgender Offender Manual, 18 January 2017, available at: www.documentcloud.org/documents/4327113-Bureau-of-Prisons-Transgender-Offender-Manual.html (recent changes to the Manual are available at: www.bop.gov/policy/progstat/5200-04-cn-1.pdf).

107 GC III, Art. 22; GC IV, Art. 82.

108 For a note on the importance of morale of internees, see ICRC Commentary on GC IV, above note 84, p. 380 (Art. 82).

109 Cf. the requirement to be searched by a person of the same sex as the detainee, in GC IV, Art. 97; see also UN Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules), UNGA Res. 70/175, 17 December 2015, Rules 50, 52.

110 Israel Prison Service, above note 105, Art. 14.

111 E.g., GC IV, Art. 132. See also GC III, Arts 109–110.

112 Mandela Rules, above note 109, Rules 75–76, 78.

113 For State practice in this context (not necessarily in the context of armed conflict), see above notes 105–106 (Israeli and US policy); IACHR, Violence against LGBTI Persons in the Americas, above note 15, p. 106, para. 161; United Nations Office on Drugs and Crime (UNODC), Handbook on Prisoners with Special Needs, 2009, Chap. 5, available at: www.unodc.org/pdf/criminal_justice/Handbook_on_Prisoners_with_Special_Needs.pdf.

114 GC III, Art. 78; GC IV, Art. 101.

115 For examples, see above notes 105–106 (Israeli and US policy).

116 GC III, Art. 126; GC IV, Arts. 78, 143.

117 Common Art. 3.

118 E.g., Israeli Prisons Ordinance (New Version), 1971, Arts 71–72 (appointing official inspectors who are allowed to visit detention facilities at any time, inspect the detention conditions and conduct private and confidential interviews with any detainee). Such inspections are carried out in the United Kingdom by Her Majesty's Chief Inspector of Prisons (see: www.justiceinspectorates.gov.uk/hmiprisons/about-hmi-prisons/terms-of-reference/), and in the United States by the Office of the Inspector General at the Department of Justice, which is responsible for monitoring the Federal Bureau of Prisons (see: https://oig.justice.gov/reports/bop.htm).

119 Hague Regulations, Art. 46; GC IV, Art. 27; ICRC Customary Law Study, above note 59, Rule 105; ICRC Commentary on GC IV, above note 84, p. 202 (Art. 27).

120 GC III, Arts 70–71; GC IV, Arts 25, 106; ICRC Customary Law Study, above note 59, Rule 125.

121 GC IV, Art. 26; AP II, Art. 4(3)(b); ICRC Customary Law Study, above note 59, Rule 117.

122 GC IV, Art. 116; ICRC Customary Law Study, above note 59, Rule 126.

123 GC IV, Art. 82; ICRC Customary Law Study, above note 59, Rules 119–120.

124 AP I, Art. 32; ICRC Customary Law Study, above note 59, Rule 117.

125 AP I, Art. 34; ICRC Customary Law Study, above note 59, Rule 114.

126 See above note 50.

127 E.g., UNODC, above note 113; IACHR, Violence against LGBTI Persons in the Americas, above note 15, pp. 102–103, para. 155.

128 OHCHR, above note 6, paras 24–25; OHCHR, above note 2; HRW, “They Said We Deserved This”: Police Violence Against Gay and Bisexual Men in Kyrgyzstan, January 2014, available at: www.hrw.org/sites/default/files/reports/kyrgyz0114_forUpload.pdf.

129 GC IV, Art. 45.

130 Ibid.; see also GC III, Art. 12; AP II, Art. 5(4).

131 GC IV, Art. 45. This notion can also be found in Article 109 of GC III, noting that sick or injured prisoners of war shall not be repatriated against their will during hostilities. The Commentary explains that this is to protect them from risks and possible prosecution in case political changes have taken place in their State of nationality. It is also clarified that the rule prohibiting the Detaining State from repatriating prisoners against their will during hostilities is of a general nature and applies also to those who are not wounded or sick, Pictet, Jean (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. 3: Geneva Convention relative to the Treatment of Prisoners of War, ICRC, Geneva, 1960, pp. 512–513 (Art. 109)Google Scholar.

132 GC IV, Art. 8.

133 For example, Article 45 of GC IV only applies to aliens in the territory of a party to an international armed conflict, and Article 12 of GC III to prisoners of war.

134 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85, 10 December 1984 (entered into force 26 June 1987), Art. 3; Convention relating to the Status of Refugees, 189 UNTS 137, 28 July 1951 (entered into force 22 April 1954) (Refugee Convention), Art. 33. IHRL applies to all persons in peacetime, as well as during international and non-international armed conflicts: see Droege, Cordula, “Transfers of Detainees: Legal Framework, Non-Refoulement and Contemporary Challenges”, International Review of the Red Cross, Vol. 90, No. 871, 2008, pp. 675–676CrossRefGoogle Scholar.

135 ICCPR, Arts 2, 6–7; Human Rights Committee, above note 60, para. 12, and General Comment No. 36, above note 31, para. 30; CAT, General Comment No. 1, “Implementation of Article 3 of the Convention in the Context of Article 22”, UN Doc. A/53/44, Annex IX, 16 September 1998, para. 3.

136 Refugee Convention, Arts 1(A)(2), 33(1).

137 UNHCR, Guidelines for International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, 2012, paras 16–22; CAT, Uttam Mondal v. Sweden, Communication No. 338/2008, 23 May 2011, para. 7.7; CAT, J. K. v. Canada, above note 31, para. 10.5; Human Rights Committee, M. K. H. v. Denmark, Communication No. 2462/2014, 12 July 2016, para. 8.8. See also ICRC Commentary on GC IV, above note 84, p. 269 (Art. 45).

138 GC IV, Art. 45.

139 UNHCR, above note 137, paras 42–43.

140 Ibid., para. 50.

141 Ibid., para. 46.

142 GC IV, Arts 35, 48.

143 GC IV, Art. 35; ICRC Commentary on GC IV, above note 84, p. 236 (Art. 35).

144 See GC IV, Arts 35, 41, 49, 78.

145 E.g., Hague Regulations, Art. 43; GC III, Arts 13, 20, 46; GC IV, Arts 49, 55, 83, 85, 127; AP I, Art. 69. See also ICCPR, Art. 2; Human Rights Committee, above note 60, para. 10.

146 GC IV, Arts 14–17, 49; ICRC Commentary on GC IV, above note 84, p. 136 (Art. 16) (the list of vulnerable individuals in Article 16 is not exhaustive and may apply to “any civilians who while not being either wounded or shipwrecked are exposed to some grave danger as a result of military operations”). For a similar duty with respect to prisoners of war, see GC III, Arts 19, 22–23.

147 This policy document was submitted by the Israeli Government to the Supreme Court in Anon v. State of Israel, HCJ 5200/09, submission of 9 December 2014, available at: https://bit.ly/2WbCC40.

148 Ibid. See also Kfar Saba Court, State of Israel v. Anon, 32463-03-17, Decision, 5 April 2017 (allowing the accused, a Palestinian man from the West Bank, to stay in Israel given the danger to his life in the areas administered by the Palestinian Authority because of his sexual orientation).

149 See above note 50.

150 Hague Regulations, Art. 43; ICRC, Occupation and Other Forms of Administration of Foreign Territory, Geneva, March 2012, p. 54. See also GC IV, Art. 64.

151 GC IV, Art. 64 and see generally, Supreme Court of Israel, Gamiyat El-Iskan v. IDF Commander in the West Bank, HCJ 393/82, 28 December 1983; Dinstein, Yoram, The International Law of Belligerent Occupation, Cambridge University Press, Cambridge, 2009, pp. 112, 115CrossRefGoogle Scholar; ICRC, above note 150 p. 56.

152 While Article 64 refers to “penal laws”, the ICRC Commentary emphasizes that the legislative authority of the Occupying Power in this context concerns “the whole of the law (civil law and penal law) in the occupied territory”. ICRC Commentary on GC IV, above note 84, p. 335 (Art. 64); ICRC, above note 150, p. 58.

153 GC IV, Art. 64.

154 Cf. African Men for Sexual Health and Rights and Coalition of African Lesbians, Violence Based on Perceived or Real Sexual Orientation and Gender Identity in Africa, Pretoria, 2013, pp. 6–7; HRW, Scared in Public and Now No Privacy: Human Rights and Public Health Impacts of Indonesia's Anti-LGBT Moral Panic, July 2018, p. 40, available at: www.hrw.org/sites/default/files/accessible_document/indonesia0618_lgbt_web.pdf; Rose Troup Buchanan, “Robert Mugabe Tells UN General Assembly: ‘We Are Not Gays!’”, The Independent, 29 September 2015; Josh Jackman, “Malaysian Prime Minister Says the Country ‘Cannot Accept LGBT+ People’”, Pink News, 21 September 2018, available at: www.pinknews.co.uk/2018/09/21/malaysian-prime-minister-says-the-country-cannot-accept-lgbt-people/; Tony Grew, “Nepalese Gays Face New Persecution”, Pink News, 4 January 2007, available at: www.pinknews.co.uk/2007/01/04/nepalese-gays-face-new-persecution.

155 ICRC Commentary on GC IV, above note 84, pp. 335–336 (Art. 64). Similarly, the Occupying Power may abolish courts or tribunals which have been instructed to apply inhumane or discriminatory laws. It should be noted that the extent to which the Occupying Power is authorized to change or repeal local legislation contrary to IHRL is a matter of dispute (e.g., ICRC, above note 150, pp. 58–59). Yet, the principles of humane treatment and non-discrimination are also part of the law of occupation and enshrined, inter alia, in the Geneva Conventions.

156 Control Council for Germany, Proclamation No. 1, “Establishment of Military Government”, 30 August 1945, and Law No. 1, “Abrogation of Nazi Laws”, 30 August 1945, Art. II.

157 Coalition Provisional Authority, Order No. 1, “De-Ba'athification of Iraqi Society”, 16 May 2003.

158 Coalition Provisional Authority, Order No. 30, “Reform of Salaries and Employment Conditions of State Employees”, 8 September 2003; Order No. 89, “Amendments to the Labor Code – Law No. 71 of 1987”, 30 May 2004; and Order No. 60, “Establishment of the Ministry of Human Rights”, 22 February 2004.

159 Supreme Court of Israel, Gamiyat El-Iskan, above note 151, paras 26, 30.

160 See above note 23.

161 E.g., Law, Sylvia A., “Homosexuality and the Social Meaning of Gender”, Wisconsin Law Review, Vol. 1988, No. 2, 1988Google Scholar; Okin, Susan Moller, “Sexual Orientation, Gender, and Families: Dichotomizing Differences”, Hypatia, Vol. 11, No. 1, 1996CrossRefGoogle Scholar; cf. OHCHR, Report of the Special Rapporteur on the Situation of Human Rights Defenders, UN Doc. A/HRC/16/44, 20 December 2010, paras 23, 85.

162 OHCHR, above note 6, paras 24–26.

163 Report of the UN Secretary-General, 2016, above note 7, para. 14. It was also submitted that the humanitarian sector has paid little attention to LGBT victims of gender-based violence: see Dolan, Chris, “Letting Go of the Gender Binary: Charting New Pathways for Humanitarian Interventions on Gender-Based Violence”, International Review of the Red Cross, Vol. 96, No. 894, 2014CrossRefGoogle Scholar.

164 M. Nichols, above note 7; Letter from the Ambassador of Egypt to the President of the Human Rights Council, 29 July 2016, available at: www.unwatch.org/wp-content/uploads/2016/07/Amb.-Egypt-letter-to-HRC-President-29jul16.pdf; OHCHR, “Deep Concern at Bid to Block UN Human Rights Expert”, 21 November 2016, available at: www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=20902&LangID=E.

165 For example, by challenging the narrative that homosexuality is “un-African” or a Western concept: see African Men for Sexual Health and Rights and Coalition of African Lesbians, above note 154, pp. 6–8.

166 IACtHR, Advisory Opinion OC-18/03, “Juridical Condition and Rights of Undocumented Migrants”, 17 September 2003, para. 101. See also Vienna Convention on the Law of Treaties, 1155 UNTS 331, 23 May 1969 (entered into force 27 January 1980), Art. 53; International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, Yearbook of the International Law Commission, Vol. 2, Part 2, 2001, pp. 85, 112–113; ICTY, Prosecutor v. Kupreškić, Case No. IT-95-16-T, Judgment (Trial Chamber), 14 January 2000, para. 520; ICRC Commentary on GC II, above note 63, paras 612, 624, 663 (Art. 3); ICRC Customary Law Study, above note 59, pp. 309–310 (Rule 88).