Abeer Sharma
Introduction
Recently, the Greece Parliament legalized same-sex marriage and became the first Christian Orthodox majority country to do so, depicting the growing acceptance of LGBTQ+ community. But still, there are cases like Chechnya and Uganda where state law enforcement agencies launched anti-gay purge and anti-homosexuality acts, criminalizing homosexuality with life sentences, resulting in mass killings and harm toward people belonging to the LGBTQ+ community, which felt like a sword of Damocles hanging over their heads.
The Genocide Convention of 1948 which works as a tool of protection for communities from genocide, classifies protected groups as “national, ethnical, racial, and religious”. A literal interpretation excludes the LGBTQ+ community based on “Gender” under its purview. Considering the same, this blog will provide a deep analysis highlighting persistent limitations under the Genocide Convention and what rectifications can be made to expand its sphere concerning the LGBTQ+ community.
Reason Behind LGBTQ+ Community Representation under Genocide Convention
The LGBTQ+ community which forms one of the neosocial or newly emerged social groups in society faces persecution in various countries. For instance, in Nigeria, a man was sentenced to death by stoning for same-sex relations in 2021. In Brunei, harsh new laws including stoning to death for same-sex ties were introduced in 2019. In Honduras, a prominent trans activist woman propagating for transgender rights was brutally murdered in 2021. These measures demonstrate the persistent disdain against the LGBTQ+ community and the same concretizes through reports of Amnesty International and Trans Murder Monitoring, showing that more than 60 countries still have laws criminalising homosexuality. Additionally, 490 bills attacking the rights and often the very existence of transgender people have been introduced in 49 states in 2024, and 321 trans and gender-diverse people were reported murdered between October 1, 2022, and September 30, 2023. The detailed effects of violence on the LGBTQ+ community can be further observed through the case studies of Kenya and Chechnya.
Case Study: Kenya and Chechnya
In 2010, in Mtwapa town of Kenya, a group of approximately 200 people attacked gay, bisexual men, and transgender women who worked as peer educators at an HIV clinic after rumors of a gay wedding circulated. Due to their marginalized status and ongoing campaigns like “Operation Gays Out”, no arrests were made, and the attacks were unreported and suppressed under the influence of governmental authorities. Additionally, further individual attacks were observed against people associated with the HIV clinic and protests against homosexuality in Mtwapa forced the workers and associated people to leave the clinic due to lack of protection from the government. This situation not only affected their human rights but also had a huge effect on the HIV/AIDS clinic of Mtwapa.
Although, the United Nations Human Rights Committee, which authoritatively interprets the International Covenant on Civil and Political Rights (ICCPR) and evaluates states’ compliance with its provisions, found in the 1994 case of Toonen v. Australia, that laws criminalizing consensual homosexual conduct among adults violate the ICCPR’s protections for private life and against discrimination, still no cogent international action was seen in the present case.
Similarly, in Chechnya, a state-sponsored persecution of LGBTQ+ people was observed, where more than 150 people, mainly gay and bisexual men, were arrested, imprisoned, and tortured. The reason behind the same as provided by the government was the opposite nature of men in comparison to the heterosexual image of masculinity in Chechnya. Based on the same, LGBTQ+ people were persecuted for a long time by government forces, starting from February 2017. Chechen security forces violently targeted people based on their sexual orientation and “non-conforming” masculinity. Victims were humiliated, tortured and forced into unofficial detention centres, where they were obliged to disclose their contacts. Local organizations also documented cases of family members committing “honour killings” of LGBTQ people.
In response, the European Center for Constitutional and Human Rights (ECCHR) and its partner Sphere Foundation/Russian LGBT Network filed a lawsuit in Germany in February 2021, based on the principle of universal jurisdiction under which the German Federal Public Prosecutor takes serious and systematic crimes even if they are not committed in Germany. However, no individual investigation proceedings have been started by the Federal Public Prosecutor’s Office to date.
Role of Governments
In the above-provided case studies, the respective governments of both Kenya and Chechnya were at fault. The acts committed by them depicted their malafide intention. For instance, the Kenyan government tried to negate the existence of LGBTQ+ people in its population to avoid any accusations under Article 17 of the Rome Statute, which empowers the International Criminal Court (ICC) to prosecute its powers if the local government is either “unwilling or unable genuinely to carry out the investigation and the prosecution”. Similarly, The Chechnyan government inflicted mass violence upon the gay men in its population and rescued itself from being held liable to international institutions like the United Nations (U.N.) by taking garb under the Russian government and suppressing the people’s voices by imprisoning them and coercing them to accept established gender roles.
The Effect on LGBTQ+ Community
The above case studies depict the plight of the LGBT community who are not only exploited and suppressed by the governmental authorities but also by private individuals and the same works as an alarming indicator in the direction of LGBTQ+ community inclusion under the Convention to safeguard their existence and protect them from various forms of human rights violence.
The Genocide Convention and Limitations Concerning LGBTQ+ Community
As observed above, the LGBTQ+ community deals with a complicated situation where there is a persistant risk upon their existence, making it imperative for their protection under the Genocide Convention, but the same lacks due to limitations under the Genocide Convention, which will be further discussed under this head.
Historical Context of Genocide Convention
‘The Convention on the Prevention and Punishment of the Crime of Genocide’ also known as the Genocide Convention was adopted by the United Nations General Assembly (UNGA) in 1948, pursuant to passing of resolution 96 (I) by UNGA, which recognized genocide as a crime under international law. Its idea was based on the Nuremberg Principles of 1946 upon which the trials of Nazi officials were made and worked as a determinant factor in distinguishing between the crime of genocide committed during the war and peace.
The main intention behind the formation of the Convention as described by Raphael Lemkin (The drafter of the Convention) was to punish the instigators of violence who were made free even after committing the massacre of thousands in comparison to a person who is made liable for a single murder. After the formation of the Genocide Convention, various tribunals were formed in parallel to its terms like the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) which worked as a basis for the conviction of various genocidal criminals.
The Definitional Issue under Article 2
“The Genocide Convention, while a crucial document, exerted limitations over time concerning the LGBTQ+ population, for instance, the problem of vague and narrow language in Article 2 of the Convention, which defines the protected group based on “national, ethnical, racial, and religious” criteria. However, the LGBTQ+ community cannot be defined under its contours, as (1) national groups are mainly linked to a nation, (2) ethnic groups are connected to culture and linguistics, (3)racial groups are identified by physical trait, and (4)religious groups are based on theistic, non-theistic, and atheistic communities.
Moreover, various interpretations of protected groups have been provided over time, like the ‘national group’ as defined by ICTR includes ‘people who are perceived to share a legal bond based on common citizenship and reciprocity of rights and duties’. ‘Ethnical groups’ as defined by Schabas include terms like race, colour, and nationality. ‘Racial groups’ as defined by the Akayesu Trial Chamber can be inferred as a group with common hereditary physical traits. ‘Religious groups’ as defined by Nsereko refers to people who adhere to a particular religious persuasion, be it theistic or nontheistic. But still, the LGBTQ+ community cannot be defined under it because Firstly, they do not have a common legal bond or common citizenship and can belong to various nations. Secondly, they are recognized based on their sexual orientation instead of race, colour, and nationality. Thirdly, the LGBTQ+ community contains only one common trait, ‘distinguished sexual orientation’, which is nonhereditary and evolves over time. Fourthly, the LGBTQ+ community cannot be classified by religion as it encompasses a heterogeneous population of different faiths.
Additionally, when applying interpretive approaches like the seriatim construction approach and stable and permanent group approach, the LGBTQ+ community remains excluded. Under the seriatim construction approach, the plain meaning of the groups is interpreted, such as “Religious group” covering only people based on their religion. Under the permanent group approach, the meaning of groups with fixed membership based on their birth is interpreted, such as people born into a specified religion. The LGBTQ+ community cannot be construed under these definitions as LGBTQ+ individuals, who might be born as male and female and later face changes in gender identity, cannot be interpreted under the protected groups criteria. This demonstrates a significant gap in the protection offered by the convention.
The Ambiguous Terminologies under Article 2(B)
Further, in Article 2(B), wordings are provided as “Causing serious bodily or mental harm to the members of the group”, but what mental harm encapsulates is not defined under the Convention resulting in a huge gap of interpretation. Although various nations like the U.S. have tried to define it in their own way, for instance, mental harm is defined as “permanent impairment of mental faculties through drugs, torture or similar techniques”. Moreover, tribunals like the ICTR in the Akaseyu case defined “serious bodily and mental harm” through its parameters like torture, mutilation, and other forms of severe physical violence, which causes irreparable repercussions on the mental and physical well-being of a person. But the same is applicable on a case-to-case basis, depicting the subjective nature of the clause, which can confusion in its interpretation. Also, the LGBTQ+ population, which is widely persecuted and discriminated for their gender orientation in society can have different levels of mental and psychological issues but what level of mental harm is recognized under the Convention remains ambiguous.
The Lack of Enforcement Mechanism under the Convention
The Genocide Convention contains a well-established procedural structure as enumerated under Articles 5, 6, and 8. However, still, there are various lacunas in its enforcement because the judicial mechanism appointed under it like tribunals and courts do not have executive agencies to enforce their judgments and are mainly dependent upon the state agencies, whose support depends upon state ratification and state’s willingness to comply with the order. For example, the case of the Khmer Rouge’s regime in Cambodia, where millions were persecuted and difficulties were faced during the trial due to witness intimidation and political considerations. The tribunal formed as Extraordinary Chambers in the Courts of Cambodia (ECCC) had to rely on international state cooperation for military and monetary assistance, which had a significant effect on its working capacity.
Moreover, states not only try to suppress the communication of mass violence against the LGBTQ+ population but also work as a component in violence propagation, which can ultimately result in increasing genocidal activities against the LGBTQ+ population as well as there will be no trepidation in the cognizance of the perpetrators due to non-enforceable judgments by the courts.
Interference of State in the Working of the Convention
Further, Article 4 of the Convention defines punishment for genocide as done by the “constitutionally responsible rulers, public officials or private individuals” under which both the state as well as the private individual can be held liable. But a case against the state in the context of LGBTQ+ community where the offense inflicted is under the territorial contours of the state and is tried by a competent tribunal of that state only as provided under Article 6, can have huge deterrence upon the impartial investigation of the offenses and formation of trial. For instance, the genocide of 1994 orchestrated by the Rwandan government, made the investigations within the country a difficult process, where despite ICTR neutral space, limitations in resources and focus on Hutu perpetrators resulted in bias in the overall process. Similarly, in the Darfur Genocide, the Sudanese government was directly involved in arming and supporting the Janjaweed Militia and obstructing international investigation and prosecutions, denying access to the region, intimidating witnesses, and influencing the ICC proceedings.
To manage state excessive interference various measures were taken by international organizations, like during the Rwandan Genocide the UNSC launched peace missions like the UN Assistance Mission for Rwanda (UNAMIR) containing an armed force of approximately 2,500 troops, but the same was underfunded and understaffed. Further, to address the failure of the UN, the ICTR was established but its work was hindered by a complex political environment and challenges in gathering evidence. Similarly, during the Darfur Genocide, several sanctions were imposed on the Sudanese government by the UNSC and missions like the African Union Mission in Sudan (AMIS) and the UN-African Union Hybrid Operation in Darfur (UNAMID) were assented. However, the same were unsuccessful due to varied responses from different states. Furthermore, the ICC issued various warrants against the Sudanese officials but the same were void, due to the uncooperative attitude of the Sudanese government.
On the other hand, in Argentina’s Dirty War state-sponsored violence was seen in 1976-1984, causing the death of thousands. However, due to the cooperation of the newly elected democratic government, the trials were held in a free and fair manner resulting in the conviction of various high-ranking officials and perpetrators behind the violence. Hence, showing that the trial under the Convention heavily depends upon the cooperation of the state where the act of crime had occurred and if the government of the state is involved in the same, then it can become a difficult process to conduct a fair trial.
The Solutions to the Limitations Concerning LGBTQ+ Community under the Genocide Convention
The limitations described above can have negative repercussions for both the LGBTQ+ community as well as general communities under the Convention. The rectification of the same demands solutions and it will be discussed under this head where the problem of narrow perspective will be dealt through harmonious construction of laws, ambiguous provisions will be countered with the formation of an advisory committee, and lacunas under the enforcement capabilities with the excessive interference by the state will be rectified through adopting upon the idealistic and realistic solutions.
The Solution Towards the Narrow Perspective under Article 2
The problem of narrow perspective under Article 2 of the Convention, which excludes the LGBTQ+ population from its sphere, can be addressed through the creation of a harmonious construction of laws. This would allow the present protection given to other forms of communities to be extended. For example, under Article 2 of the Genocide Convention the LGBTQ+ population can be either included within the sphere of the four mentioned groups through extended interpretation (such as a broader interpretation of ‘national group’ can be made to encompass groups targeted for their inherent characteristics, including the sexual orientation and gender identity) or a new based on sexual preference or gender can be formed under the Convention through a proposal in the UNGA. Additionally, a protocol in furtherance of the convention, specifying the sphere of protected groups similar to other treaties, can be adopted.
The extended interpretation of protected groups can be made on a similar basis of human rights treaties of The International Covenant on Civil and Political Rights (ICCPR) and The International Covenant on Economic, Social and Cultural Rights (ICESCR), where the right to safe and sufficient water was implicitly recognized under the provisions of these treaties by their respective interpretive committees. Furthermore, the adoption of a protocol in continuance can be made with the parallel application, as seen in the Refugee Convention of 1951, which was limited in scope and defined a refugee as a person who, due to events occurring before 1 January 1951, was outside their country of nationality and are unable or unwilling to come due to fear of persecution based on race, religion, nationality, membership in a particular group. Moreover, the convention was only limited to the refugees of Europe. However, after the adoption of the 1967 protocol, the geographical and time limitations of the protected group were expanded and refugees of the whole world, who were forced to leave their country after 1951 were included.
Rectification of Ambiguity under the Convention
The ambiguous provisions under the Convention provide both limitations and opportunities, as tribunals under it can deal with flexible capacities while interpreting the ambiguous provisions, providing a holistic interpretation. But still, the same needs to be countered to make the Convention more reasonable and stable to avoid any conceptions of confusion among the international community. The same can be done with the formation of an advisory committee comprised of jurists and stakeholders in this field, who can interpret the terms and provide a specific meaning to it, which can ultimately help in providing a definitive or strict interpretation of the law and remove any sort of void or existing gap, like the interpretations given by the International Court of Justice (ICJ) of ambiguous provisions in the 1958 Convention on the Continental Shelf regarding the delimitation of continental shelves between adjacent and opposite-coast states. Furthermore, specific amendments can be brought to the convention, either in the form of protocols, like the Refugee Convention and Protocol or through normal amendments in the same piece of law, like the Convention on International Civil Aviation (Chicago Convention), which was amended several times by an assembly of its signatories, to clarify upon various provisions and scope under it.
The Remedy to Enforcement Gaps and State Interference in the Convention
Further, when talking about the lacunas in the enforcement capabilities under the Genocide Convention and excessive interference by states, idealistically the same can be mitigated with the creation of moral and political consensus among the states, where they can be enlightened about their respective duties under the international customary principles like Erga Omnes, which recognizes prevention of crimes like genocide as one of the obligations of the states. A famous example of it can be observed under the Rome Statute through which the International Criminal Court (ICC) was formed and by reaching a consensus among the states their sovereignty was limited by upholding the norms of Erga Omnes. On the other hand, pragmatically, the same can be countered with the formation of a more concrete jurisdiction of the ICC to prosecute the crime of genocide as defined under Article 6 of the Rome statute by adopting measures like universal ratification and effective cooperation by states, which can help in the creation of more transparent and independent process. Moreover, a separate permanent tribunal can be formed, which can exclusively deal with the trial of cases related to genocide, like the International Tribunal for the Law of the Sea (ITLOS) under the United Nations Convention on the Law of the Sea (UNCLOS) and same can encompass an autonomous investigation committee, which may be provided with the power to investigate the genocidal offences in countries signatory to the convention like the International Atomic Energy Agency (IAEA), which is provided with the power to inspect and investigate the peaceful usage of the nuclear energy among Nuclear Proliferation Treaty (NPT) signatories.
Conclusion
The Genocide Convention works as a vital law in the international sphere but still struggles to encompass the LGBTQ+ community under it. The narrow group definitions and ambiguous language create gaps in the protection. To correct it, wide interpretations of the existing categories or a new category upon sexual orientation/ gender can be formed. Further, an advisory committee can be made to clarify the persisting voids and ambiguities under the Convention. While at last the enforcement gaps and excessive state interference can be countered with a two-fold solution: First, promoting a global consensus on state obligations to prevent genocide and Second, strengthening upon the international criminal court jurisdiction parallelly towards the formation of regional tribunals and state forces. The thorough addressment of these limitations wouldn’t just enhance the Convention’s effectiveness in protecting the LGBTQ+ community. But would also strengthen safeguards for other vulnerable groups.
The author is a second year student at Rajiv Gandhi National University of Law, Punjab (RGNUL).
NUALS Law Journal 