On Binaries, Blind Spots, and Shades of Gray: The UN Report on LGBTQ+ Persons in Armed Conflict

“I’d prefer it if you shoot me in the head.”

These were the words of a young gay man in Syria in 2015 who knew his fate was to be thrown from the roof of a high-rise building after being convicted by ISIS for sodomy. The persecution, targeting and rape of lesbian, gay, bisexual, trans, queer and plus (LGBTQ+) persons in some provinces in Colombia was systematic and, often, part of a tactic of social control. In 2017, in the Eastern parts of Ukraine, LGBTQ+ persons have been persecuted and forced to flee their homes and in 2022 there have also been reports of Ukrainian transgender women who have been prohibited to leave their war-torn country during martial law as they were marked as men. In other conflicts and situations of violence, including in Yemen, Libya, Myanmar and Afghanistan, LGBTQ+ persons have been subjected to rape and other forms of gender-based violence.

These and many other examples could be marshalled to illustrate that LGBTQ+ persons are deliberately targeted in armed conflict. But does the current global governance regime have the necessary tools to prevent, or properly respond to, such violence and discrimination?

A new UN report grapples with this question and sheds some light on what appear to be some blind spots and shades of grey in a number of international legal and policy frameworks regarding the protection of LGBTQ+ persons in armed conflict. On 28 October 2022, the UN Independent Expert Sexual Orientation and Gender Identity (IESOGI), Victor Madrigal-Borloz, the current mandate holder and a Senior Visiting Researcher with the Human Rights Program at Harvard Law School, presented this report to the General Assembly at its 77^th session. The IESOGI concludes that the current international regime is not effective in the face of the continued failure of states and non-state actors to fully protect LGBTQ+ persons during armed conflict.

In this post, we will explore some of the salient issues raised in the report, expand upon them, and probe some areas for improvement in the field of IHL, in particular regarding Common Article 3 of the Geneva Conventions and IHL special protections.  

Seeking nuance inside an evidentiary blind spot

While each armed conflict presents its own peculiarities, the invocation and exacerbation of pre-existing prejudices, and the rise of violence that distinctively, and in some contexts disproportionately, affects LGBTQ+ persons is becoming increasingly noticeable. However, it is also becoming clear that it is difficult to document and investigate violence motivated by sexual orientation and gender identity (SOGI).

Whereas the IESOGI report seeks to fill a gap by introducing a new surge of empirical evidence on the gendered dimension of violence in contexts of conflict (para. 1), an undertaking that is supported through the findings of UN fact-finding missions or commissions of inquiry (e.g., Yemen and Libya) and through input from civil society, states and UN agencies, one of its findings is that this is a field in which there is much ground to cover. As a whole, the report stands inside of and highlights an evidentiary blind spot when it comes to documenting the impacts of armed conflict on LGBTQ+ persons. How can one comprehensively gather evidence of violations and abuses against LGBTQ+ individuals in countries torn by conflict where practices based on SOGI were criminalized or even punished with the death penalty before conflict the erupted?  Can this be done without exposing LGBTQ+ individuals, who often cannot find safety in their communities and closed circles due to societal prejudice and stigma, to new risks and violations?

The IESOGI identifies one specific area in the international policy framework which, if reformed, could prove to diminish this evidentiary blind spot and corresponding implementational modalities. In this vein, the IESOGI report gives special attention binary and heteronormative nuances reflected in the UN’s “women, peace and security architecture” established under the UN Security Council resolution 1325 (2000). The report’s critical valuation of the UNSCR 1325 regime and its implementation in domestic law (paras.27-36) laments the exclusion of LGBTQ+ individuals when it utilizes a narrow understanding of gender in terms of sex, for instance “using the expressions women and gender interchangeably” (para. 33). This leaves the international institutions dealing with conflict incapable of fully capturing the complexities of armed conflict, thereby making the global regime ill-equipped to provide appropriate responses to conflict and violence.

LGBTQ+ invisibility: Lost in the shades of grey of Common Article 3

One of the overarching conclusions of the IESOGI report is that international humanitarian law (IHL) “seems to fall behind in recognizing the differentiated experiences that people endure in conflict based on gender and sexuality” (para.7). IHL lays out a binary construct that may have been contributing to the creation and deepening of implementation gaps regarding the protection of LGBTQ+ persons in armed conflict—thereby leading to the reduction of their protection on the ground.

Although a close analysis of Common Article 3 of the Geneva Conventions was not the focus of the IESOGI report, this provision offers a good example of how the protection of LGBTQ+ persons can be hampered by their invisibility even though the law may, in theory, afford them protections. Common Article 3 obliges parties to a conflict to treat persons humanely “without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.” SOGI are not included expressly as a ground for protection under Common Article 3.

This ‘indirect’ type of protection does not happen exclusively in IHL. The prohibitions of discrimination provided in international and regional human rights instruments, such as the ICESCR, ICCPR, and the American, African, European regional treaties, contain similar wording that does not expressly mention SOGI. However, international human rights law has been progressively incorporating SOGI as grounds for protection. This has been happening both through soft-law developments, such as the Yogyakarta Principles and the YP+10, and through an interpretative process carried out by judicial and quasi-judicial bodies. The ground-breaking decision Toonen v. Australia by the UN Human Rights Committee back in 1994 and the 2006 NGO Forum v. Zimbabwe decision of the African Commission on Human and People’s Rights are good examples. A more recent addition, Rojas Marín v. Peru, issued by the Inter-American Court of Human Rights in 2020, has pushed the boundaries of protection by developing the concept of violencia por prejuicio (“violence motivated by prejudice”) and expanding the purposive element of torture to include discrimination based on SOGI. Since the entirety of international human rights law does not cease to apply in armed conflict, these interpretations and progressive developments should provide some protection to LGBTIQ+ persons during armed conflict.

One of the differences between international human rights law and IHL regarding LGBTQ+ protection is that there has not yet been any formal interpretative process of IHL provisions (p. 13), in particular of Common Article 3, by international adjudicative bodies clarifying that SOGI is included in the non-exhaustive lists of grounds for protection under non-discrimination provisions. It is, therefore, unfortunate that the ICRC, given its role in promoting progressive developments in IHL,  has missed the opportunity to interpret Common Article 3, or other IHL non-discrimination provisions, in a way that expressly includes SOGI as grounds for protection. For instance, the ICRC’s  Commentary to the Geneva Conventions for Common Article 3, only contains a footnote which mentions the Humanitarian Charter as a text that includes SOGI as grounds protected from discrimination, and only regarding the right to receive humanitarian assistance.

Paradoxically, very recently, in June 2022, the ICRC published the “Gendered impacts of armed conflicts and implications for the application of IHL” claiming that proactive clarification is needed:

Sexual orientation and gender identity are not grounds for exclusion from IHL’s category-based protections. At times, this protection has been overlooked or misinterpreted – it is an example where the ICRC’s silence has been perceived by some as the view that IHL excludes these individuals from protection, and this merits proactive clarification that all persons are protected under the relevant group categories. In other words, gender-neutral protections should be actively clarified to be gender-inclusive so as to deepen the application of existing protections (p. 37).

IHL’s special protections: Another shade of grey?

Some room for improvement in IHL may lay in the fact that it does not provide special protection for LGBTQ+ persons, as it does for other groups, such as women, children, old people, workers, the sick and wounded. These groups are granted special legal protection because IHL recognizes that they are exposed to higher risks and vulnerabilities, or because conflict impacts them in distinctive ways. For example, IHL not only grants specific protections to women who are prisoners of war, or to women who are pregnant or nursing, but also to workers, protecting them in particular from the artificial creation of unemployment or underemployment by occupying powers. Notably, while the protections of women have a broader historical basis, the protection of workers under Article 52 of Geneva Convention IV developed, in part, as a response to certain measures taken by occupying powers during the Second World War.

Similar to the IESOGI report which notes that LGBTQ+ persons are distinctively, and in some contexts also disproportionately, affected by conflict-related violence on the basis of SOGI, the ICRC also acknowledges that sexual and gender minorities face much higher rates of sexual violence compared to the general population of incarcerated persons. It seems, then, that LGBTQ+ persons may prove to be in the next candidates for inclusion in ‘special protected person lists’ in future reformulations and restatements of IHL. Such progressive developments may not, at least in the short term, lead to immediate compliance. They will, however, make IHL more reflective of the realities of war and bring light to a minority group that is suffering behind multiple shades of invisibility.

Conclusion – the wound is where light enters

In a poem in which he likens the unilluminated heart to a wound, Rumi points out that one cannot see the ugliness of one’s wound. The IESOGI report, limited as it is to 10,700 words as per the UN Editorial Manual, can be compared to Rumi’s skilled healer who helps shine light on some of the global governance regime’s blind spots and shades of grey. The report can, however, only briefly shine a faint light on the most important issues.

In this post we have shed additional light on LGBTQ+ invisibility in the context of Common Article 3 and the exclusion of LGBTQ+ persons from special legal protections. We invite others to delve into the details of many of the issues raised with a view to responding to the call to heal the wound of the many who are suffering in the shadows of impunity.