Human Rights Violations - Essay Example

?Chapter IV Human Rights Violations Why Lesbians, Gays flee origin countries in the first place? The Human Rights violations they suffer? What is their treatment in their country? Do they face further human rights violations in host country? How is that linked with procedural hurdles that they face once in host countries? Examine a specific country of origin report to show how they are treated and draw example from there Gross human rights violations have compelled some LGBT persons to flee their homes, fearing for their safety, and seeking sanctuary in countries with, what they perceive to be better human rights protection laws. However research seems to indicate that in numerous instances, some host countries have displayed homophobic attitudes which seem to further marginalize these LGBTs. This paper shall not address all violations related to sexual orientation or gender identity due to the depth of discussion involved in such areas. However, it shall focus on critical human rights concerns among LGBTs. LGBTs flee their home countries due to serious violations of their fundamental human rights. Violations include executions and other severe violent attacks from state and non-state actors. This paper predominantly focuses on the human rights violations of persons based on their sexual orientation or gender identity. Under these conditions, it would be possible to better understand the reasons why host countries must provide adequate surrogate protection to LGBTs who have fled gross living conditions from their home nations. Homophobic and trans-phobic violence has been recorded in many regions. Such violence may be physical, through acts like murder, beatings, kidnappings, rape and sexual assaults or they may be psychological, and may include threats, coercion, and arbitrary deprivations of liberty. These attacks constitute a form of gender-based violence, mostly driven by a desire to punish those who may be perceived as violators of gender norms. Egregious human rights violations have compelled some lesbian, gay, bisexual, and transgender people to seek refuge in countries with better human rights protection. It is important to assess the current situation relating to human rights violations which have left these individuals unprotected and vulnerable. It is also crucial to evaluate the reason why many of them risk their lives to seek protection elsewhere, where they still run the risk of being subjected to further abuse. Some states in recognition of these violations have afforded protection to these oppressed sexual minority groups. Before proceeding to the procedural hurdles that LGBTs face in host countries, it is important to shed light to the human rights of gay, lesbian, bisexual and transgender persons and the countries which criminalize homosexuality. It is widely recognised that every individual has the right to their preferred sexuality, the Yogyakarta principles illustrates similar the protection of such rights. Today, there are seventy-six countries in the world which have criminalized same-sex sexual acts between consenting adults. In seven of these countries, homosexual acts are punishable with the death penalty. These countries include Mauritania, Sudan, Northern states of Nigeria, Southern parts of Somalia, Iran, Saudi Arabia and Yemen1. These countries typically prohibit either certain types of sexual activity including any intimacy or any sexual activity between persons of the same sex. What these laws have in common is that they are often used to harass and prosecute individuals based on their actual, perceived sexuality, or gender identity2. Penalties range from short-term to life imprisonment, and even the death penalty. People living with their sexuality under a veil are constantly threatened, blackmailed, and persecuted. There is a need to free these people from the misery of fear and persecution. Ignoring their fate and denying their right to pursue a happy life and to fulfill their sexuality is a disgraceful practice. What is terrifying about the current situation is the fact that religious groups, governments and individuals do not covertly practice persecution, discrimination and ostracism, but they manifest such acts openly with varying degrees of aggression. The criminalization of private consensual homosexual acts violates an individual’s rights to privacy and to non-discrimination. It also constitutes a breach of international human rights law. In Toonen v. Australia, the Human Rights Committee found that “adult consensual sexual activity in private is covered by the concept of ‘privacy’” under the international Covenant on Civil and Political Rights. According to the Committee, it does not matter if the laws criminalizing such conduct are enforced or not, their mere existence continuously and directly interferes with an individual’s privacy3. Since the Toonen case, the Committee, other treaty bodies and special procedures have repeatedly urged states to reform laws criminalizing homosexuality and related sexual conduct between consenting adults of the same sex4, and these bodies have also welcomed repeals of these laws5. Since Toonen, the Human Rights Committee has held that laws used to criminalize private adult consensual same-sex sexual relations violate rights to privacy and to non-discrimination. The committee has rejected the notion that criminalization may be justified as ‘reasonable’ on grounds of protection of public health or morals, noting that the use of criminal law in such circumstances is neither necessary nor proportionate.6 In some restrictive countries, restrictions are often imposed on the freedoms of expression and association of these sexual minorities; and in other countries, homosexuality and trans-sexuality are often perceived as a western phenomenon, as anti-revolutionary behavior, as a crime against religion, as sexually deviant and immoral behavior, as a mental disorder, or as an unacceptable challenge to gender-specific roles. UNGA-Report The application of the International Human Rights Law is guided by the Principles of Universality and Non-discrimination enshrined in article 1 of the Universal Declaration of Human Rights7, which states that “all human beings are born free and equal in dignity and rights”8. All people, including the lesbian, gay, bisexual and the transgender (LGBT) persons are therefore entitled to enjoy the protections provided by international human rights laws. The protection includes respect of their rights to life, their rights to the security of their person and their privacy, and their rights to be free from torture, arbitrary arrest and detention. They are also accorded the right to be free from discrimination, the right to freedom of expression, to association, and to peaceful assembly. Based on the national legislation, historical background, culture and religious backgrounds which are seen in different regions of the world “it is the duty of States, regardless, of their political, economic and cultural systems to promote and protect all human rights and fundamental freedom”9. Moreover, the Non-discrimination provisions is a core human rights principle embodied in the Charter of the United Nations, the Universal Declaration of Human Rights, human rights treaties generally calling for rights to have equal application. States are under an obligation to prevent gender-based violence and discrimination according to various international human rights instruments. Under article 3 of the Universal Declaration of Human Rights, “everyone has the right to life, liberty and the security…”10. Article 6 of the International Covenant on Civil and Political Rights affirms that, “every human being has the inherent right of life. This right shall be protected by law. No one shall be arbitrarily deprived of his life”11. Moreover, the state has an obligation to exercise due diligence to prevent, punish and redress deprivations of life12, and to investigate and prosecute all acts of targeted violence. Article 33 of the 1951 Convention Relating to the Status of Refugees provides that States have an obligation not to expel or return a refugee to a place where their life or freedom would be threatened on account of their race, religion, nationality, political opinion, or on account to their membership in any particular social group13. Crucially, the right to be free from torture and other cruel, inhuman or degrading treatment is absolute. Article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights provide that “no one shall be subjected to torture or to cruel, inhumane or degrading treatment or punishment14. The right to privacy is enshrined in article 12 of the Universal Declaration of Human Rights and article 17 of the International Covenant on Civil and Political Rights, which state that no person should be subjected to “arbitrary or unlawful interference with his privacy, family, home or correspondence”. This right to privacy has been documented in many instruments. Furthermore, the Human Rights Committee in its general comment confirmed that any interference with privacy, even if provided for by the law, “should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances”15. Alarmingly, research suggests that homophobic trends exist in civil societies even today. LGBT persons have already been victims in their origin countries and in their host countries, they are often made to face further humiliation, victimization, and even physical assault. According to the Organisation for Security and Cooperation in Europe (OSCE), homophobic hate crimes and incidents often show a high degree of cruelty and brutality with acts which include beatings, torture, mutilation, castration and sexual assault16. The situation of LGBT Human Rights Violations LGBT persons are also among the victims of so-called “honour” killings, wherein they are killed by family or community members who perceive their homosexuality as acts which bring shame or dishonor on their family17. Alarmingly, the OSCE has reported that based on 2009 data from 22 member countries, 44 bias-motivated murders of LGBTs were carried out18. The European Parliament and the Council of Europe have also regularly expressed concern on incidents where LGBT persons have been targeted and killed. In some reported incidents, several gay men in the Netherlands and Sweden have been victims of gender-based killings. In yet another instance, a homeless transgender woman in Portugal was also killed in an apparent hate crime19. Moreover, killings of LGBT human rights defenders have been another significant problem, as they too have been targeted for various acts of violence including rape and sexual violence. David Cato, for example, who was a Ugandan gay rights campaigner, was beaten to death for his support of gay rights. Violence Directed to Women Violence targeted towards women is common in many regions where numerous lesbians have been attacked, raped, forcibly impregnated, and otherwise punished due to their sexual orientation20. The Special Rapporteur on violence against women recently reported alleged incidents of gang rapes, family violence and murders experienced by lesbian, bisexual and transgender women in El Salvador, Kyrgyzstan and South Africa21. The Rapporteur noted that “lesbian women face an increased risk of becoming victims of violence, especially rape, because of widely held prejudices and myths”, including the notion “that lesbian women would change their sexual orientation if they are raped by a man”22. Human Rights: a protection of the individual against the state The goal of all efforts for universal human rights protection was and is to provide all persons the right to live freely. Cameroon clearly violates human rights with their criminal persecution of homosexuals. In restrictive states, there may also be limitations on the freedom of speech, as well as the artistic freedom of expression. These restrictions actually reveal the fears, ignorance, and helplessness of concerned states in their ineffective attempts to cope with the issue of homosexuality. In these states, citizens who seek to create a forum to discuss the issue of persecution in their homeland are often persecuted themselves. Alarming hate crimes/homophobic attitudes are present in civil societies. For example, in Burton-Upon Trent in England, Darren aged 15 was bullied and beaten because of his sexual preference. He later hanged himself and police investigation concluded that he could no longer bear the physical and mental abuse he was subjected to as a homosexual23. This example, from one of the most enlightened societies in the world, permits a presentiment as to what the situation in other societies is like. A recent Council of Europe report shows that “hate-motivated violence and hate crimes against LGBT persons take place in all Council of Europe member states”24. A government-supported survey conducted in 2008 by the non-governmental organization Stonewall in the United Kingdom found that a third of lesbians and a quarter of gay men were likely to experience a hate crime or incident (including verbal aggression) in the preceding three years25. Even in countries that recognize these grounds for asylum, practices and procedures often fall short of international standards. Review of applications is sometimes arbitrary and inconsistent. Officials may have little knowledge of or sensitivity to conditions faced by LGBT people26. Refugees are sometimes subjected to violence and discrimination while in detention facilities and, when resettled, they may be housed within communities where they would be subjected to sexually and gender-related risks. Refoulement of asylum-seekers fleeing such persecution also places them at risk of violence, discrimination, and criminalization. In some cases, they are returned with instructions to “be discreet”, an approach criticized by UNHCR27. Ironically however, this was the position in the UK prior to the UK Supreme Court case HJ (Iran) and HT (Cameroon) v. SSHD (2010). Death Penalty In at least five countries, the death penalty may be applied to those found guilty of offences relating to consensual, adult homosexual conduct. In addition to violating rights to life, privacy and non-discrimination, the application of the death penalty in these circumstances violates article 6 of the International Covenant on Civil and Political rights, which provides that, in countries that have not abolished the death penalty, a “sentence of death may be imposed only for the most serious crimes”28. The Commission on Human Rights and the Human Rights Committee has confirmed that use of the death penalty for non-violent acts, including sexual relations between consenting adults, constitutes a violation of international human right law29. Despite these legal impositions, violations of human rights among LGBTs remain dominant practices in some countries. Word count: 2895 excluding footnotes Read More