Introduction
Discrimination and sexual and gender-based violence (SGBV)Footnote 1 directed at persons identifying as lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI)Footnote 2 remains one of the most pressing humanitarian challenges of our time.Footnote 3 It is an unfortunate reality that persons identifying as LGBTQI face immense hardship in light of acceptance and tolerance even at the best of times, solely based on the fact that their sexual orientation or gender identity is non-conformant with the social norm of society.Footnote 4 The marginalization of LGBTQI persons as sexual and gender minorities specifically at risk is further exacerbated within the hyper-masculine context of armed conflict, in which hegemonic heteronormativity is prevalent.Footnote 5 Comparably to the risks faced by women and children during armed conflict, so too are LGBTQI persons – self-identified or perceived – made victims of extreme atrocities during armed conflict.Footnote 6 Such atrocities are especially prevalent within the context of detention;Footnote 7 in which LGBTQI individuals constitute a specifically risk-facing minority when at the mercy of specific Detaining Powers, including armed non-State actors.
Reports on recent conflicts such as those in the Syrian Arab Republic,Footnote 8 YemenFootnote 9 and ColombiaFootnote 10 all suggest patterns of SGBV committed against LGBTQI individuals in detention. Reports on the Syrian conflict, for example, allege that homosexual men were tortured and raped on the grounds of their sexual orientation by both government forces and armed non-State actors while in custody.Footnote 11 In Yemen, reports suggest that LGBTQI individuals endured sexual violence during interrogation while being accused of “spreading” homosexuality.Footnote 12 The Colombian conflict similarly documented numerous allegations of rape and sexual violence perpetrated against lesbian and transgender females in detention as a form of “corrective rape”.Footnote 13
Other forms of violence directed at LGBTQI individuals include murder and beatings, sexual assault, forced anal examinations in order to “prove” homosexuality, genital mutilation, and forced sterilization.Footnote 14 Moreover, SGBV directed at men and boys is often done through means of exploiting homosexuality.Footnote 15 Reports on the conflicts in Burundi, the Central African Republic, the Democratic Republic of the Congo, South Sudan, Sri Lanka and the Syrian Arab Republic all allege incidents of rape, gang rape, forced public nudity and other forms of torture and inhumane and degrading treatment against men and boys, predominantly in detention facilities.Footnote 16 The rape of men and boys has been used to attack their socially constructed identities as “protectors” in order to humiliate and “feminize” them and to impute a sense of homosexuality to them.Footnote 17 These discriminatory attacks directed at perceived and self-identified LGBTQI individuals are said to constitute SGBV, driven by a desire to punish individuals whose appearance or behaviour appears to challenge gender stereotypes.Footnote 18
Since the vast majority of modern-day armed conflicts are classified as non-international in character,Footnote 19 the need exists to explore the extent to which the law of non-international armed conflict (NIAC) protects LGBTQI individuals detained during NIAC against discrimination and SGBV. Since no overt recognition is afforded to sexual orientation or gender identity as grounds upon which adverse distinction is prohibited in the application of Article 3 common to the four Geneva Conventions,Footnote 20 this paper focuses on the interpretation of the phrase “or any other similar criteria” upon which adverse distinction is prohibited.Footnote 21 In interpreting “or any other similar criteria”, the general rule of treaty interpretation will be employed as contained in Article 31(1) of the Vienna Convention on the Law of Treaties (VCLT),Footnote 22 in order to qualify sexual orientation and gender identity as “any other similar criteria” upon which adverse distinction is prohibited.
As a point of departure, “or any other similar criteria” will be interpreted against the backdrop of its ordinary meaning by using the notion of “good faith” and in the context of its object and purpose.Footnote 23 Secondly, Additional Protocol II to the Geneva Conventions (AP II)Footnote 24 will be used as a measure in further interpreting the context of “or any other similar criteria”, as an instrument related to common Article 3 and accepted as such by the parties to the Geneva Conventions.Footnote 25 Finally, international human rights law (IHRL) will be used in support of the interpretation of “or any other similar criteria”, under the auspices of “relevant rules of international law applicable in the relations between the parties”.Footnote 26 This will be followed by a short conclusion and summary remarks.
Establishing the meaning of “or any other similar criteria” as found in common Article 3 through the general rule of treaty interpretation
Article 31(1) of the VCLT states: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.”Footnote 27 Therefore, considering “or any other similar criteria” against the backdrop of the general rule of treaty interpretation, the text of common Article 3 must be considered in its entirety. Common Article 3, as the sole treaty-based provision tasked with the oversight of all NIAC,Footnote 28 prohibits certain acts against certain groups of persons during conflict “not of an international character”.Footnote 29 These acts include, inter alia, violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture,Footnote 30 as well as outrages upon personal dignity, which includes humiliating and degrading treatment.Footnote 31 Moreover, the prohibitions against these acts, together with the rest of the provisions of common Article 3, have attained the status of customary international humanitarian law binding on both States and armed non-State actors in a NIAC,Footnote 32 and are considered the minimum yardstick reflecting “elementary considerations of humanity”, as confirmed by the International Court of Justice (ICJ) in the Nicaragua case.Footnote 33
In consideration of the above, common Article 3(1) asserts that:
Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.Footnote 34
In the context of the above, it should thus be clear that in all circumstances, individuals not or no longer actively participating in hostilities are to be protected throughout the duration of the conflict and that individuals placed hors de combat by, inter alia, detention are to be treated humanely.Footnote 35 As other scholars have rightly noted, the fact of being a self-identified LGBTQI individual, or even of being perceived as such, has no bearing on the question of whether such an individual is a civilian or combatant for the purposes of the principle of distinction.Footnote 36 Under the principle of distinction, LGBTQI non-combatants would be protected solely based on their status as civilians.Footnote 37 The issue arises when such individuals fall under the control of a party to the conflict, whether this entails individuals being arbitrarily detained on the basis of their sexual orientation or gender identity,Footnote 38 LGBTQI combatants placed hors de combat by detention,Footnote 39 or LGBTQI civilians lawfully interned for imperative security reasons who are then subjected to discrimination and violence during detention.Footnote 40 Clearly, sexual orientation and gender identity are not explicit grounds listed in common Article 3 upon which adverse distinction is prohibited. The provision provides for the prohibition of adverse distinction on the basis of race, colour, religion or faith, sex, birth or wealth, and then furthermore provides that no adverse distinction shall be made on “any other similar criteria” that have not been mentioned already upon which adverse distinction is prohibited.
The International Committee of the Red Cross (ICRC) Commentary on common Article 3 – as an authoritative and subsidiary source for the determination of the rules of international humanitarian law (IHL)Footnote 41 – states that the phrase “or any other similar criteria” makes the grounds listed upon which adverse distinction is prohibited a “non-exhaustive” list.Footnote 42 The Commentary then continues to describe other grounds not listed in common Article 3 that would in theory be equally prohibited grounds of adverse distinction, such as age, state of health and family connections.Footnote 43
In the opinion of the present author, omitting sexual orientation and gender identity from the ICRC Commentaries as grounds similar to those listed in common Article 3 upon which adverse distinction is prohibited constitutes a missed opportunity.Footnote 44 Discrimination and violence directed at LGBTQI individuals is certainly not a new phenomenon, and continues to be widespread during contemporary armed conflicts, keeping in mind the sexual violence and torture of homosexual men in concentration camps during the Third Reich,Footnote 45 or contemporary armed conflicts such as that in Colombia, during which armed non-State actors demonstrated policies of “social cleansing” operations against LGBTQI individuals.Footnote 46 What is clear from the phrase “or any other similar criteria” is that this specific wording is open to wide interpretation – as mentioned, the phrase is non-exhaustive, which elevates the potential for inclusion of sexual orientation and gender identity as similar grounds upon which adverse distinction is prohibited. This brings the author to the task of interpreting the said phrase in order to elevate the protection afforded to LGBTQI individuals detained by State and armed non-State actors alike against discrimination and SGBV.
The textual interpretation: “Ordinary meaning”
The word “criteria” is defined as a standard or characteristic by which something can be judged or decided.Footnote 47 In the context of “or any other similar criteria”, and keeping in mind the preceding terms “race, colour, religion or faith, sex, birth or wealth”, it can reasonably be interpreted that “criteria”, for the purposes of the prohibition of adverse distinction, refers to the differential characteristic traits present in all human beings, all of which set individuals apart from one another in societal standing. To confirm the qualification of sexual orientation and gender identity as “any other similar criteria” upon which adverse distinction is prohibited, it must be established that sexual orientation and gender identity are seen as criteria similar to race, colour, religion or faith, sex, birth or wealth. In making this determination, it is perhaps beneficial to consider how criteria other than sexual orientation and gender identity that are also not listed as prohibited grounds of adverse distinction are reflected upon.
Other similar grounds not mentioned in common Article 3 upon which adverse distinction is prohibited include that of nationality.Footnote 48 It is held, however, that the omission of nationality from the list of prohibited grounds of adverse distinction has no bearing on the imperative obligation of humane treatment, and should therefore be understood as falling within the concept of “any other similar criteria”.Footnote 49 In general, a Detaining Power may not take advantage of the fact that certain differential characteristics are omitted from common Article 3 by interpreting such omission as falling outside the protective scope of common Article 3.Footnote 50 As indicated by the ICRC Commentary of 1960 on common Article 3, it is prohibited for an ill-intentioned Detaining Power to employ certain criteria as a pretext for discrimination against one class of persons or another in order to avoid affording them humane treatment.Footnote 51
The prohibition of adverse distinction on the basis of “any other similar criteria” in the application of common Article 3 is also imbedded in customary IHL.Footnote 52 Although “any other similar criteria” is not defined under customary IHL, interpreting the phrase in light of its ordinary meaning and in light of the notion of “good faith”, it must be found that sexual orientation and gender identity qualify as “any other similar criteria” upon which adverse distinction is prohibited. According to the interpretive view of the author, “or any other similar criteria” suggests an all-encompassing and flexible blanket of protection that will be applicable to all spheres of differential criteria, which include sexual orientation and gender identity.
Other scholars concur with this interpretation.Footnote 53 Sassòli, for example, argues that adverse distinction found on grounds such as sexual orientation and gender identity is prohibited under the guise of “any other similar criteria”, as reinforced by the interpretation of IHRL treaties.Footnote 54 Moreover, it is correctly argued that existing IHL prohibits LGBTQI abuse when such abuse shows a nexus to the armed conflict,Footnote 55 as it inevitably affects one of the categories of persons protected under IHL.Footnote 56
“Object and purpose”
What lies at the heart of treaty interpretation is the notion of good faith, which implies the consideration of the object and purpose of a treaty.Footnote 57 The VCLT furthermore stresses that apart from its ordinary meaning, a treaty shall be interpreted in light of its object and purpose.Footnote 58 For common Article 3 as a “convention in miniature”,Footnote 59 what is held to be the object and purpose is the obligation of “humane treatment”.Footnote 60 Common Article 3 holds that persons taking no active part in hostilities – those who have laid down their arms and those placed hors de combat – “shall in all circumstances be treated humanely”.Footnote 61 The obligation of humane treatment has been described as the cornerstone of protections conferred by common Article 3, as well as “the leitmotiv of the four Geneva Conventions”.Footnote 62 The obligation of humane treatment furthermore ensures that both State and armed non-State actors in a NIAC treat persons not or no longer actively participating in hostilities and falling under their power in a humane manner.Footnote 63 It is therefore of vital importance to understand what constitutes humane treatment as the object and purpose of common Article 3 in qualifying sexual orientation and gender identity as “any other similar criteria” upon which adverse distinction is prohibited.
Neither common Article 3 nor any other provision of international humanitarian treaty law defines “humane treatment”.Footnote 64 The Commentary to common Article 3 does confirm, however, that the meaning of humane treatment is context-specific and must be considered in the concrete circumstances of each case.Footnote 65 Moreover, one factor that is considered to contribute to the understanding of humane treatment is the acknowledgement that women, men, girls and boys are affected differently by armed conflict, and that sensitivity to an individual's inherent status, capacity and needs, and how such status, capacity and needs differ throughout society, must be considered when applying the obligation of humane treatment.Footnote 66 In the context of LGBTQI persons detained during NIAC, the obligation of humane treatment would entail, for example, treatment with all due regard to the individual's sex, respect for convictions, and protection from the violence and dangers associated with armed conflict.Footnote 67
Customary IHL similarly pronounces on the obligation of humane treatment.Footnote 68 The definition of “humane treatment” under customary IHL refers to humane treatment as an overarching concept with reference to respect for an individual's dignity and the prohibition of ill-treatment.Footnote 69 A significant observation worthy of mention regarding the definition of humane treatment under customary IHL is the assertion that the notion of humane treatment develops over time under the influence of changes in society.Footnote 70 In this sense, as society becomes more aware of targeted violence directed at LGBTQI individuals,Footnote 71 or considering the progressive development of LGBTQI rights in terms of IHRL over recent years,Footnote 72 so too will the notion of humane treatment under IHL systematically evolve to integrate the specific needs and sensitivities of LGBTQI individuals detained during armed conflict.
Jurisprudence of the ad hoc international criminal tribunals seems to follow the construction of the notion of humane treatment found under customary IHL.Footnote 73 The International Criminal Tribunal for the former Yugoslavia (ICTY), in the Aleksovski case, defined humane treatment in relation to forms of mistreatment that are without question incompatible with the general guarantee of humane treatment.Footnote 74 The Trial Chamber noted that the purpose of common Article 3 is to uphold and protect the inherent human dignity of the individual by prescribing humane treatment without discrimination.Footnote 75 Therefore, considering the prohibited acts listed in common Article 3, including violence to life and person, mutilation, cruel treatment, torture and outrages upon personal dignity, these prohibited acts are specific examples of conduct that are indisputably in violation of the obligation of humane treatment.Footnote 76 It is therefore uncontroversial that common Article 3 prohibits all forms of SGBV against all protected persons – and specifically those placed hors de combat by detention for the purposes of this writing – as such violence amounts to a violation of the obligation of humane treatment, as well as the corresponding prohibitions against violence to life and person, mutilation, cruel treatment, torture and outrages upon personal dignity.Footnote 77
The International Criminal Tribunal for Rwanda (ICTR) confirmed in both Muvunyi Footnote 78and Kamuhanda Footnote 79 that sexual violence amounts to inhumane treatment, while the Special Court for Sierra Leone (SCSL) in Brima confirmed that sexual and other physical violence qualifies as inhumane treatment.Footnote 80 Therefore, prescribing common Article 3's obligation of humane treatment without discrimination as being in line with the reasoning of Aleksovski,Footnote 81 and without any adverse distinction on the basis of “any other similar criteria”, LGBTQI detainees would be protected against any adverse distinction during detention, which includes SGBV. Thus, subjecting LGBTQI detainees to rape, forced stripping, anal examinations, genital mutilation or forced sterilization while in detentionFootnote 82 amounts to a violation of common Article 3's obligation of humane treatment and the corresponding prohibition against acts of violence to life and person and outrages upon personal dignity, and is consequently prohibited.
Scholarly opinion points to the obligation of humane treatment as the basis upon which the general principle of humanity under the so-called “Geneva law” is founded.Footnote 83 Jean Pictet wrote that the “principle of Geneva” captures three duties towards victims of war: respect, protection and humane treatment, the last being a question of common sense and good faith.Footnote 84 For Kolb and Hyde, the principle of humanity consists of four facets: respect, protection, equality and humane treatment for all those not or no longer actively participating in hostilities.Footnote 85 Moreover, under Kolb and Hyde's construction of the principle of humane treatment, the obligation to afford humane treatment to protected persons is consequential to the fact of them being human beings who should therefore be afforded a minimum degree of human dignity.Footnote 86 From an operational and practical perspective, Sassòli argues that the obligation of a Detaining Power to afford humane treatment must be interpreted as requiring special care when a Detaining Power becomes aware of special risks affecting certain detainees.Footnote 87 In this sense, a lawful differentiation can be made, for example, by keeping homosexual and transgender detainees separate from other detainees, or even providing homosexual and transgender detainees with specially designated sanitary facilities.Footnote 88 This is because common Article 3 does not prohibit distinction that is non-adverse – i.e., distinction that is justified by substantively different needs and perspectives of persons protected under common Article 3 for the purposes of realizing their humane treatment.Footnote 89
It is thus clear that what lies at the epicentre of “humane treatment” of persons not or no longer actively participating in hostilities is human dignity and non-discrimination in the application of common Article 3.Footnote 90 For the current author, and for the purposes of placing humane treatment in the context of the protection of LGBTQI detainees against discrimination and SGBV during NIAC, “humane treatment” connotes, at the very minimum, treatment with all due regard for such individuals’ status as such.Footnote 91 As scholars have rightly noted, the intrinsic reality of armed conflict inevitably results in having protected persons under IHL lead a difficult life within an inherently unfavourable environment. However, treatment of protected persons in such a chaotic environment must always be humane, appropriate and acceptable.Footnote 92 The current author acknowledges that although a Detaining Power may not be aware of the sexual orientation of a specific individual under its control, the obligation of the Detaining Power is, nevertheless, based on providing equal and non-discriminatory protection, without drawing an adverse distinction in affording humane treatment. Upon this basis, sexual orientation and gender identity qualify as “any other similar criteria” upon which adverse distinction is prohibited, in line with the object and purpose of common Article 3.
The next section of this article focuses on Additional Protocol II,Footnote 93 as an instrument made in connection with the conclusion of common Article 3 and accepted as such by the parties thereto for the purposes of Article 31(2)(b) of the VCLT.Footnote 94
Additional Protocol II as an instrument related to common Article 3 for the purposes of Article 31(2)(b) of the VCLT
According to Article 31(2)(b) of the VCLT, the context of a treaty for the purposes of its interpretation shall comprise, in addition to the text, preamble and annexes, any instrument made in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.Footnote 95 AP II fulfils the requirements of an “instrument” for the purposes of Article 31(2)(b) of the VCLT in the following ways. Firstly, the Commentary to AP II describes AP II as the first real legal instrument for the protection of victims of NIAC.Footnote 96 Secondly, and although common Article 3 remains the core treaty-based provision tasked with the oversight of all NIAC,Footnote 97 AP II supplements and develops the general provisions of common Article 3, albeit only for those States that have ratified it.Footnote 98 Furthermore, as Article 31(2)(b) requires an instrument to be made in connection with the conclusion of a treaty, there will be no bearing on AP II being utilized in the interpretation of “or any other similar criteria”, as AP II promotes the subject matter and purpose of common Article 3.Footnote 99 Moreover, even though AP II was not adopted until 1977, this cannot be construed so as to mean that AP II was not made in connection with the conclusion of the Geneva Conventions for the purposes of Article 31(2)(b), as the instrument does not need to have eventuated at the time of the conclusion of the related treaty.Footnote 100
Despite the arguments raised above in favour of utilizing AP II for the purposes of the interpretation of “or any similar criteria”, AP II is not necessarily free from any obstacles. AP II is only applicable to armed conflict taking place on the territory of a State that has ratified it,Footnote 101 as many States were opposed to the assertion that its provisions reflected existing customary IHL at the time of its adoption.Footnote 102 Moreover, for AP II to become applicable to a certain NIAC, AP II requires certain additional application criteria, including, inter alia, that the dissident armed forces or organized armed groups engaged in the conflict are organized under a responsible command structure, exercise control over a part of the State Party's territory, and are able to implement the provisions of AP II.Footnote 103 The high threshold of intensity necessary for an armed conflict to thus trigger the applicability of AP II means that many situations of armed conflict do not qualify as an AP II-type NIAC, and thus do not trigger its application.Footnote 104 Nevertheless, the provisions of AP II relevant for the purposes of this article, and for the protection of LGBTQI detainees against discrimination and SGBV during NIAC, restate and clarify customary IHL.Footnote 105 Therefore, the relevant provisions of AP II can be applied for the purposes of interpreting “or any other similar criteria” in its context, and for the purposes of qualifying sexual orientation and gender identity as such.Footnote 106
To begin with, the preamble to AP II reinforces the principles of the famous Martens Clause of the 1899 and 1907 Hague Conventions respecting the laws and customs of war on land.Footnote 107 These principles, which have attained the status of customary international law,Footnote 108 recall that in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience.Footnote 109 Although these principles were originally adopted in the context of “means and methods of warfare” for international armed conflicts, and applied in that context as seen in the ICJ's Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (Nuclear Weapons Advisory Opinion),Footnote 110 the ICJ nevertheless held that these two systems of law – the “Hague law” and “Geneva law” – “have become so closely interrelated that they are considered to have gradually formed one single complex system, known today as international humanitarian law”.
The principles of the protection of humanity and the dictates of the public conscience have been held to serve as fundamental guidance in the interpretation of international customary or treaty rules.Footnote 111 Cassese argues, for example, that in case of doubt, rules belonging to IHL must be construed to be consonant with the general standards of humanity and the demands of public conscience.Footnote 112 Moreover, the Commentary to AP II holds that if a case is not covered by the law in force, whether due to a lacuna in the law or because the parties to the conflict do not consider themselves bound by common Article 3 or AP II, that does not mean that anything is permitted.Footnote 113 An a contrario interpretation is therefore prohibited, and the human person remains under the protection of the principles of humanity and the dictates of the public conscience.Footnote 114 Therefore, since sexual orientation and gender identity are not explicitly covered by the law in force in qualification of such characteristics as “any other similar criteria”, the lack of explicit recognition of sexual orientation and gender identity under either common Article 3 or AP IIFootnote 115 cannot be interpreted to suggest that it is permitted to subject LGBTQI detainees to discrimination and SGBV while in detention. The protection of LGBTQI detainees against discrimination and SGBV during detention is first and foremost to be found under the principles of humanity and the dictates of the public conscience.
Moving forward, AP II's personal field of application under Article 2(1) provides for the application of the Protocol without any adverse distinction.Footnote 116 Similar to that of common Article 3, AP II's non-discrimination clause makes no provision for sexual orientation and gender identity as grounds upon which adverse distinction is prohibited. However, as in the case of common Article 3, the list of prohibited grounds of adverse distinction is non-exhaustive, leaving room for the inference of sexual orientation and gender identity as “any other similar criteria”. Praise must be given to AP II, though, in expanding the list of grounds upon which adverse distinction is prohibited, by adding, for example, “or other status”, juxtaposed against “or any other similar criteria”.Footnote 117 This holds the potential for inference of sexual orientation and gender identity as prohibited grounds of adverse distinction under both “or other status” as well as “or any other similar criteria”. Moreover, AP II's personal field of application guarantees humane treatment to all whose liberty has been restricted for reasons related to the armed conflict.Footnote 118
AP II furthermore provides for certain fundamental guarantees to all persons not taking a direct part in hostilities, or who have ceased to take part, whether or not their liberty has been restricted.Footnote 119 In the first instance, as with common Article 3, the general obligation of humane treatment is guaranteed without any adverse distinction.Footnote 120 The general obligation of humane treatment is then informed by a list of prohibited acts of absolute character that applies at all times and in all places and which includes, inter alia, violence to the life, health and physical or mental well-being of persons,Footnote 121 as well as outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault.Footnote 122 The express list of prohibited acts under AP II is thus wider than that of common Article 3 due to the inclusion, for example, of rape, enforced prostitution and any form of indecent assault, which reaffirms and supplements common Article 3.Footnote 123 These fundamental guarantees are further supplemented by the customary IHL rules covering rape and other forms of sexual violence.Footnote 124
While rape and indecent assault were added to the list of prohibited acts primarily out of concern for the protection of women and children,Footnote 125 such protection is nevertheless applicable to LGBTQI detainees who find themselves in the hands of a specific Detaining Power or armed non-State actor during NIAC, as persons not or no longer actively participating in hostilities. Moreover, these prohibited acts, which fall under the broader category of sexual violence,Footnote 126 are held today to encompass violence directed not only against women and girls, but also against men and boys.Footnote 127 Furthermore, and for the purposes of international criminal law, rape and any other form of sexual violence also constituting a serious violation of common Article 3 constitute a war crime when committed against any person.Footnote 128 The International Criminal Court (ICC) in its recent decision in Ntaganda, for example, acknowledged that the concept of “invasion” for purposes of the war crime of rape is intended to be gender-neutral so as to also cover same-sex penetration, and encompasses both male and female victims and perpetrators.Footnote 129 Moreover, it is recognized that acts of SGBV directed at LGBTQI detainees may include other acts which do not necessarily consist of rape.Footnote 130 Other acts which have similarly been construed as sexual violence, and are therefore equally applicable to LGBTQI detainees during NIAC, include forced public nudity and forced stripping as pronounced in Akayesu,Footnote 131 as well as genital mutilation as in Bagosora.Footnote 132 Therefore, acts constituting rape and indecent assault for the purposes of the fundamental guarantees contained in AP II should be construed as sufficiently gender-neutral so as to also cover protection of LGBTQI detainees during NIAC. Considering this context for the purposes of “or any other similar criteria”, sexual orientation and gender identity qualify as prohibited grounds of adverse distinction.
As the context for the purposes of the interpretation of “or any other similar criteria” is now settled by the analysis of the relevant provisions of AP II, the final step in the interpretation process turns to the relevant rules of international law applicable in the relations between the parties, in accordance with Article 31(3)(c) of the VCLT.Footnote 133
International human rights law as “relevant rules of international law applicable in the relations between the parties”
This section explores the extent to which IHRL can be utilized as an interpretive tool in aiding the qualification of sexual orientation and gender identity as “any other similar criteria”. To this end, the section will first consider the relationship between IHRL and IHL; it will then present the applicable IHRL instruments giving effect to the recognition of sexual orientation and gender identity as prohibited grounds of adverse distinction, and will lastly consider international jurisprudence giving effect to sexual orientation and gender identity as prohibited grounds of adverse distinction.
Looking towards IHRL as an interpretive tool for the qualification of sexual orientation and gender identity as “any other similar criteria”, certain difficulties arise. This is because the question of whether and to what extent IHRL applies to armed non-State actors remains controversial.Footnote 134 It is today widely accepted that the rules of IHL are binding on both States and armed non-State actors in a NIAC, as enforced by the wording of common Article 3: “each Party to the conflict shall be bound to apply, as a minimum, the following provisions”.Footnote 135 Customary IHL similarly requires that each party to the conflict must respect and ensure respect for IHL by its armed forces.Footnote 136 The same is not accepted for IHRL.Footnote 137 However, what this section seeks to achieve is not to apply IHRL to non-State actors; rather, it seeks to utilize IHRL as an interpretive tool for the purposes of qualifying sexual orientation and gender identity as “any other similar criteria” upon which adverse distinction is prohibited. Moreover, as Article 31(3)(c) of the VCLT specifically provides for the consideration of relevant rules of international law that are applicable in the relations between the parties, the parties as such, for the purposes of Article 31(3)(c), refer to States party to the treaties under IHRL, which are binding upon such States Parties.Footnote 138
The relationship between IHL and IHRL
The relationship between IHL and IHRL can be traced back to the International Conference on Human Rights held in Tehran in 1968, at which Resolution XXIII, entitled “Human Rights in Armed Conflict”, was adopted.Footnote 139 As a result, the Tehran Conference became the decisive event for the establishment of a relationship between IHL and IHRL.Footnote 140 A tendency thus developed in perceiving IHL as part of human rights law applicable during armed conflict,Footnote 141 as both these branches of law prohibit the killing of detainees, torture and rape, and uphold the requirement of humane treatment of detainees.Footnote 142 As both these branches of international law consist of a protective purpose – for example, IHL operates from the basis of the need to balance military necessity with the preservation of humanity and humane treatment during armed conflict,Footnote 143 while IHRL operates from the basis of the protection of human dignity during peacetimeFootnote 144 – the possibility of overlap between these two special regimes increases.
The ICJ in its Nuclear Weapons Advisory Opinion held that the protection of the International Covenant on Civil and Political Rights (ICCPR) does not cease during time of war, subject to certain derogations in terms of Article 4.Footnote 145 In expounding on this approach, the ICJ in its subsequent Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Wall Advisory Opinion), held that for the relationship between IHL and IHRL, some rights may be exclusive matters of IHL and others exclusive matters of IHRL, while still others may be matters of both these branches of international law.Footnote 146 Even though the more popular view in recent times suggests that IHRL applies concurrently with IHL during armed conflict, it must be acknowledged that this view is not universally accepted and remains unsettled.Footnote 147
The present question, however, concerns how to reconcile the qualification of sexual orientation and gender identity as “any other similar criteria” with IHRL, seeing that IHL operating as lex specialis during armed conflict falls silent as regards to sexual orientation and gender identity as prohibited grounds of adverse distinction.Footnote 148 In this regard, the International Law Commission's study on fragmentation of international law held that the operation of IHL as lex specialis during armed conflict does not abolish IHRL during time of war.Footnote 149 Moreover, some scholars argue that IHL does not always constitute lex specialis during armed conflict simply because it applies to and was specifically designed for those situations, but rather that IHL constitutes lex specialis on certain issues during armed conflict, while IHRL is lex specialis on others.Footnote 150 Scholarly opinion thus suggests that a case-by-case determination should be made as to the applicable law governing a certain norm, and that in a conflict between the two potential applicable rules, the one with the larger “common-contact surface area” applies.Footnote 151
In addition, seeing that Article 31(3)(c) of the VCLT provides for the consideration of “relevant rules of international law applicable in the relations between the parties” when interpreting a certain norm, what is described to be imbedded in this method of interpretation is the principle of complementarity.Footnote 152 Therefore, on the basis of the principle of complementarity, a norm of IHL can be interpreted in light of IHRL and vice versa, since these branches of international law both concern the preservation of human dignity and humane treatment and are therefore mutually reinforcing.Footnote 153 Consequently, considering the qualification of sexual orientation and gender identity as “any other similar criteria” upon which adverse distinction is prohibited, which concerns primarily the non-discriminatory application of the protective guarantees of common Article 3 on the basis of sexual orientation and gender identity, the principle of non-discrimination in terms of IHRL instruments must be engaged.
LGBTQI recognition under IHRL
At the outset it must be mentioned that treaties under IHRL, the same as with common Article 3, contain no explicit recognition of sexual orientation and gender identity as prohibited grounds of distinction. What is significant about the principle of non-distinction under IHRL, however, is the instruments and interpretive tools adopted in order to give effect to such recognition.Footnote 154 Although these instruments and interpretive tools mainly consist of resolutions and other “soft-law” instruments of the political organs of the United Nations (UN) and other regional human rights law mechanisms, and are thus not binding on States per se, they nevertheless consist of normative values that serve as influential guidelines for States in their conduct.Footnote 155
The first instrument to engage for the purposes of the qualification of sexual orientation and gender identity as “any other similar criteria” is the ICCPR, which, as discussed above, applies concurrently with IHL during armed conflict.Footnote 156 Article 2 of the ICCPR establishes for States Parties the obligation of non-distinction in the application of the rights contained in the Covenant.Footnote 157 Although the UN Human Rights Committee in its General Comment No. 18 on non-discrimination makes no reference to sexual orientation or gender identity upon which distinction is prohibited, the Committee holds that the term “discrimination” as used in the ICCPR should be understood to imply any distinction based on any grounds which has the effect of nullifying or impairing the recognition, enjoyment or exercise by all persons of all rights and freedoms contained in the Covenant.Footnote 158
During 2011, the Human Rights Council adopted Resolution 17/19, entitled “Human Rights, Sexual Orientation and Gender Identity”, expressing grave concern at acts of violence and discrimination against LGBTQI individuals and recalling the universal application of the rights enshrined in the Universal Declaration of Human Rights and other human rights treaties.Footnote 159 Furthermore, the UN Office of the High Commissioner for Human Rights, in the second edition of its publication Born Free and Equal, has reinforced the obligation of non-discrimination under Article 2 of the ICCPR as including non-discrimination on the basis of sexual orientation, gender identity and sex characteristics.Footnote 160 Other human rights treaties, such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Elimination of All Forms of Discrimination against Women, similarly set out the obligation of non-discrimination to include discrimination based on sexual orientation and gender identity.Footnote 161
In the context of the protection of LGBTQI detainees against SGBV, Article 10 of the ICCPR imposes the obligation upon States to treat all persons deprived of their liberty with humanity and with respect for human dignity.Footnote 162 In General Comment No. 21 on Article 10, the Human Rights Committee held that Article 10 imposes a positive obligation upon States towards persons who are particularly vulnerable due to their status as “persons deprived of their liberty”.Footnote 163 It is furthermore held that for “persons deprived of their liberty”, the sanction on torture and other cruel, inhumane or degrading treatment or punishment is emphasized.Footnote 164 This emphasis placed on the prohibition of torture and cruel, inhumane or degrading treatment or punishment has been held to include the prohibition of SGBV perpetrated against LGBTQI detainees.Footnote 165 From a regional perspective, in 2014 the African Commission on Human and Peoples’ Rights (ACHPR) adopted Resolution 275, condemning human rights violations including “corrective rape” and torture, as well as arbitrary arrests and detention committed by both State and non-State actors throughout the African region against persons based on their sexual orientation and gender identity, and furthermore reinforcing the obligation of States under the African Charter to respect the right to be free from torture and other cruel, inhumane and degrading treatment or punishment.Footnote 166
Judicial practice of human rights treaty bodies has similarly upheld sexual orientation and gender identity as prohibited grounds of distinction. In Toonen v. Australia, the UN Human Rights Committee found the reference to “sex” under Articles 2 and 26 of the ICCPR to include “sexual orientation”.Footnote 167 Moreover, in the case of Identoba and Others v. Georgia, the European Court of Human Rights (ECtHR) held that the prohibition of discrimination under Article 14 of the European Convention on Human Rights also covers discrimination based on sexual orientation and gender identity.Footnote 168 In a more recent landmark decision, the Inter-American Court of Human Rights (IACtHR), in Azul Rojas Marín et al. v. Peru, held that Article 1(1) of the American Convention on Human Rights, which prohibits the discriminatory application of the rights contained in the Convention, also prohibits discrimination on the basis of sexual orientation, gender identity or gender expression.Footnote 169 The IACtHR went one step further and held that rape constitutes torture when the purpose behind the rape is to discriminate on the basis of sexual orientation or gender identity.Footnote 170
In conclusion, and considering the ICJ's approach in the Wall Advisory Opinion that certain rights concern matters of both IHRL and IHL,Footnote 171 looking towards IHRL as an interpretive tool in qualifying sexual orientation and gender identity as “any other similar criteria” seems accurate. In this regard, accepting that IHRL may be directly applied to certain situations during armed conflict where IHL falls silent (such as the omission of sexual orientation and gender identity as prohibited grounds of adverse distinction under common Article 3), subjecting LGBTQI detainees to SGBV, or any other adverse distinction during NIAC, constitutes a violation of States’ obligation to afford humane treatment under both IHRL and IHL. Lastly, it is argued that the protection of persons based on their sexual orientation or gender identity does not require the establishment of new or special rights for LGBTQI persons, but rather the enforcement of existing rights, particularly the universally applicable guarantee of non-discrimination.Footnote 172
Conclusion
As discussed, discrimination and violence directed at LGBTQI individuals during armed conflict are widespread.Footnote 173 Used as a tactic of terror and social control,Footnote 174 SGBV during armed conflict has been described as the most effective weapon for terrorizing and changing the very demographics of the community it impacts.Footnote 175 As SGBV is prevalent in the context of detention,Footnote 176 State and armed non-State actors are reminded of their obligation to provide LGBTQI individuals under their control with “humane treatment” as the fundamental guarantee of common Article 3. As mentioned above, the protection of persons based on their sexual orientation or gender identity does not require the establishment of new rights, but rather the enforcement of existing rights.Footnote 177 Moving forward, in giving effect to sexual orientation and gender identity as “any other similar criteria”, sexual orientation and gender identity must be addressed as specific grounds for discrimination and violence.Footnote 178 Although significant progress is being made in terms of IHRL, affording recognition to these grounds under IHL is what will ultimately qualify them as “any other similar criteria” upon which adverse distinction is prohibited, thus helping to achieve the realization of non-adverse treatment of LGBTQI detainees during NIAC.
