Jun 3, 2014 | Advocacy, Analysis briefs
The ICJ’s commentary analyses in detail the 7 November 2013 judgment of the Court of Justice of the EU (CJEU) in joined cases arising from three asylum claims asserting a well-founded fear of persecution based on same-sex sexual orientation.
Positively, in X, Y and Z v. Minister voor Immigratie en Asiel, the Court found that asylum applicants who have a same-sex sexual orientation and come from countries where consensual homosexual conduct is criminalized, form a particular social group for the purposes of EU refugee law.
Further, the Court’s recognition that sexual orientation is a characteristic so fundamental to one’s identity that one cannot be expected to renounce or conceal it, or to exercise greater restraint in its expression than heterosexuals, is welcome.
Likewise, the Court’s finding that the enforcement of a term of imprisonment that sanctions consensual homosexual acts must be regarded as a disproportionate or discriminatory punishment, and is thus persecutory, is a step forward, particularly given that in some EU countries this was hitherto not the case.
However, in some important respects this judgment represents a missed opportunity. The Court failed to clarify the inconsistency between secondary EU refugee law and the UNHCR’s authoritative interpretation of “a particular social group” in the Refugee Convention’s definition of a refugee.
Further, in choosing to maintain the narrow scope of the questions referred to it, the Court ended up with an unwarrantedly restrictive reading of EU refugee law, which ignores the numerous persecutory effects of criminalizing consensual same-sex sexual orientation or gender identity.
The Court missed a chance to state that these laws, even when they are not enforced in the sense that there exists a recent record of enforcement through the actual imposition of terms of imprisonment, have a persecutory effect, as they criminalize an essential characteristic of one’s identity.
Background
The ICJ decided to publish this commentary for a number of reasons.
First, the CJEU plays an important role in shaping international refugee law jurisprudence.
Further, asylum applications based on a well-founded fear of persecution for reason of real or imputed sexual orientation and/or gender identity or expression are unfortunately likely to increase, both within the EU and beyond.
Moreover, the CJEU’s judgment in this case is likely to have a bearing on the determination of asylum claims premised on membership of other particular social groups.
Lastly, the implementation by the EU and its Member States of the recently “recast” Common European Asylum System will likely give rise to several new referrals to the Court, whose interpretation of the recast instruments will also depend on its asylum case law precedents, including the CJEU’s judgment in this case.
CommentaryXYZ-Advocacy-2014
Mar 8, 2014 | News
The ICJ today condemned as a miscarriage of justice, Malaysian opposition leader Anwar Ibrahim’s conviction on sodomy charges.
The ICJ said the overturning of his 2012 High Court acquittal — following an appeal by the Malaysian government — by a Court of Appeal panel contravenes international human rights standards and the rule law.
“The ICJ condemns the use of the colonial-era Article 377B of the Malaysian Penal Code, which prohibits consensual same-sex sexual conduct, in conflict with international standards regarding respect for the right to privacy,” said Sam Zarifi, ICJ’s Regional Director for Asia and the Pacific.
“This article is seldom used in Malaysia, but this is the second time it has been used to convict Anwar, and both times its use seemed clearly motivated to hobble his ability to challenge the government as a politician.”
The sodomy charges against Anwar, which date back to 2008, were dismissed by the High Court on 9 January 2012, but the Court of Appeal today overturned that acquittal and instead sentenced Anwar to five years’ imprisonment. The Court of Appeal ruling took less than two hours.
The ICJ has been observing the proceedings in what has been called Anwar’s ‘Sodomy 2’ trial. ICJ Commissioner Justice Elizabeth Evatt AC, from the Australian High Court and a former member of the United Nations Human Rights Committee, was at the Court of Appeal today on behalf of the ICJ.
“This decision certainly casts doubts on the independence and impartiality of the Malaysian judiciary and tarnishes the reputation of the country’s legal system,” said Zarifi.
The judgement means Anwar will not be able to run for election in a local state seat later this month.
After sentencing, Anwar’s lawyers were successful in arguing for a stay in execution and bail, pending appeal.
CONTACT
Sam Zarifi, ICJ Asia-Pacific Regional Director, (Bangkok), t:+66 807819002, e-mail: sam.zarifi(a)icj.org
Craig Knowles, ICJ Media & Communications, (Bangkok), t:+66 819077653, e-mail: craig.knowles(a)icj.org
Feb 27, 2014 | News
The ICJ is profoundly concerned at the recent enactment of legislation in Nigeria and Uganda that heralds further persecution based on sexual orientation and/or gender identity.
On 24 February 2014, Uganda’s President, Yoweri Museveni, gave his assent to the Anti-Homosexuality Bill recently adopted by the Uganda Parliament by signing it into law.
His Nigerian counterpart, President Goodluck Jonathan, had signed the Same Sex Marriage (Prohibition) Bill into law on 7 January this year.
In both countries pre-existing legislative provisions already criminalized consensual same-sex sexual activity in private in contravention of international human rights law and standards, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
These core global instruments each affirm the universal and inalienable rights to human dignity, equality and non-discrimination.
“Carnal knowledge…against the order of nature,” for example, was already a criminal offence in both Nigeria and Uganda, carrying, upon conviction, maximum sentences of 14 years’ imprisonment in the former and life imprisonment in the latter.
The new Nigerian legislation makes people of the same gender who contract a marriage or civil union liable upon conviction to 14 years’ imprisonment.
Further, it makes criminally responsible anyone who “administers, witnesses, abets or aids” a same-sex marriage or civil union ceremony, rendering those found guilty of the offence liable to 10 years’ imprisonment.
It also outlaws the registration, activities and funding of any “gay” organization, making them offences attracting 10 years’ imprisonment upon conviction.
In Uganda, the new law, among other things, explicitly criminalizes consensual same-sex conduct between women and makes it an offence for people to discuss and be open about their sexuality.
Further, it criminalizes “homosexuality”, “aggravated homosexuality” and same-sex marriages, all of which carry sentences of life imprisonment upon conviction.
Moreover, it makes it a criminal offence to make available information about sexual orientation, safe sex and gender identity. Renting premises to those who may “practice homosexuality” is also a crime.
The ICJ considers that laws or regulations that directly or indirectly criminalize consensual same-sex sexuality or conduct provide State actors with the means to perpetrate human rights violations, including through harassment, extortion and discriminatory “criminal” investigations, prosecutions, trials and imprisonment.
Equally, these laws enable non-State actors to persecute with impunity individuals based on their real or perceived sexual orientation and/or gender identity.
Indeed, laws that criminalize same-sex consensual sexual activity contribute to an atmosphere of State-supported homophobia and transphobia and serve as both the motivation and justification for harassment, extortion and physical abuse of people based on their real or attributed sexual orientation and/or gender identity by non-State actors.
In the circumstances, not only is cruel, inhuman or degrading treatment at the hands of non-State actors on the basis of real or perceived sexual orientation and/or gender identity not prevented, but such treatment and other human rights abuses are fostered when the authorities enact laws criminalizing consensual same-sex sexuality or conduct.
Overall, the existence of such laws works to deprive individuals who are, or are perceived to be, lesbian, gay, bisexual, transgender or intersex of adequate protection from violence and discrimination, including police protection and judicial redress.
This makes the provision of effective protection by State authorities extremely unlikely if not altogether impossible given that extending such protection would in turn be tantamount to aiding and abetting the perpetration of the very acts that such laws criminalize.
Putting the same point another way: protection is neither effective nor available when laws criminalizing consensual same-sex sexual relations or acts exist, because the individuals who need protection would effectively be outing themselves to the authorities should they decide to seek protection from them.
Accordingly, the existence of these laws entails a real risk of violations of the right to life, to liberty and security of the person, and to mental and physical integrity.
In light of the above, the ICJ considers that Uganda’s Anti-Homosexuality Act and Nigeria’s Same Sex Marriage (Prohibition) Act contravene each country’s respective Constitution and their international treaty and customary law obligations by which both countries are bound.
In particular, the Acts directly violate the right to dignity; equality, including equality before the law and equal protection of the law; non-discrimination; liberty and security of person; privacy; opinion and expression; association and peaceful assembly; and the right to access health services and care without discrimination.
Both pieces of legislation also undermine and criminalize the critical work of human rights defenders and civil society organizations that seek to combat discrimination and persecution based on sexual orientation and/or gender identity.
They also have very serious public health implications, including, for example, as a result of the fact that they hinder the prevention and treatment of HIV/AIDS.
The UN High Commissioner for Human Rights, Navi Pillay, has strongly denounced both pieces of legislation.
In relation to the Nigerian law, the High Commissioner said: “rarely have I seen a piece of legislation that in so few paragraphs directly violates so many basic, universal human rights”.
She further noted that the legislation “purports to ban same-sex marriage ceremonies but in reality does much more.
It turns anyone who takes part in, witnesses or helps organize a same sex marriage into a criminal. It punishes people for displaying any affection in public towards someone of the same sex.
And in banning gay organizations it puts at risk the vital work of human rights defenders who speak up for the rights of lesbian, gay, bisexual, transgender (LGBT) and intersex people”.
In his reaction to the enactment of the Nigerian legislation, the Executive Director of UNAIDS, Michel Sidibé, expressed concern that: “The provisions of the new law in Nigeria could lead to increased homophobia, discrimination, denial of HIV services and violence based on real or perceived sexual orientation and gender identity … It could also be used against organizations working to provide HIV prevention and treatment services to LGBT people.”
In relation to the Ugandan legislation, the High Commissioner said: “Disapproval of homosexuality by some can never justify violating the fundamental human rights of others” adding that the law “will institutionalise discrimination and is likely to encourage harassment and violence against individuals on the basis of their sexual orientation. It is formulated so broadly that it may lead to abuse of power and accusations against anyone, not just LGBT people.”
The ICJ urges the Nigerian and Ugandan authorities to urgently repeal the new legislation, as well as the pre-existing legislative provisions criminalizing consensual same-sex sexual activity in private.
Contact:
Livio Zilli, ICJ Senior Legal Adviser, Sexual Orientation and Gender Identity Programme, t +41 22 379 3823; email: livio.zilli(a)icj.org
