The Mandate of the SOGI Independent Expert: The compelling case for its renewal in 2019

By Arvind Narrain

This article makes the case for why the mandate of the Independent Expert on SOGI must be renewed based on an analysis of the work of the Independent Expert in three areas, namely country visits, sending letters of allegation to individual countries and producing thematic reports on SOGI issues. The analysis of these three areas of work reveals that the Independent Expert on SOGI has become a vital element in the defence of the rights of the LGBT community worldwide and a failure to renew the mandate would be a huge setback to the LGBTI struggle.

Introduction

Urgent Appeals/ Letters of Allegation

Since the mandate was established, there have been 40 communications which have been sent by the Independent Expert on SOGI. A diversity of countries from all regions of the world have been sent Letters of Allegation by the Independent Expert. The table below list countries by region   which have been sent Letters of Allegation.

Africa Egypt, Kenya, Tanzania and Tunisia
Asia Brunei, Malaysia, Indonesia,  Singapore and Korea
Europe Russia, Azerbaijan, Armenia, Romania, Turkey and  Kazakhstan
North America Canada and US
South and Central America Brazil, Chile, Honduras, El Salvador,  Guatemala, Haiti, Peru

An analysis of  the  responses to Letters of Allegation reveals that they can be grouped in three broad categories.

Ignoring the communication of the Independent Expert

One response to the Letters of Allegation is to simply ignore the communication. Russia has repeatedly ignored communications which detail grave violation of human rights based on SOGI. For example,  in the issued to Russia[1] regarding the extra judicial killings in Chechnya of homosexual persons it was observed that:

Mr. Alvi Karimov, spokesperson of Mr. Ramzan Kadyrov, the head of the Chechen Republic, responded to reports of arrests of gay and bisexual men to Interfax news agency with the following statement: “It is impossible to detain and persecute people who simply do not exist in the Republic. If there were such people in Chechnya, the law-enforcement agencies wouldn’t need to have anything to do with them because their relatives would send them somewhere from which there is no returning”. Similarly, Ms. Kheda Saratova, a member of the human rights council of Chechnya, told a Russian radio station: “I didn’t receive a single appeal, but in case of any I would not even consider it. (…) In our Chechen society, any person who respects himself, our traditions and culture will hunt down this kind of person without any help from the authorities and do everything to make sure that they do notexist in our society.”[2]

Even if the statements could be passed off as those of local authorities, what was telling was Russia’s non-response to the joint communication which reinforced the negation of the existence of LGBT persons in Chechnya and the ‘non-issue’ that violence suffered by LGBT persons was for the Russian state. In responding to another joint Communication regarding alleged administrative proceedings against Ms. Evdokia Romanova for “promotion of non-traditional sexual relations to minors through social networks and Internet”, the Russian Federation indicated the reason for its non-reply:

The Russian Federation does not intend to respond  to individual or joint submissions from the special procedures of the Human Rights Council when the author or co-author is the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity. We wish to recall that, at the Council’s thirty-second session, Russia formally stated that it would not recognize the mandate of or cooperate with this special procedures mechanism.[3]

The USA is one more of the states that choose to ignore the communication from the Independent Expert on SOGI. One letter of allegation was regarding the ‘death sentence to Mr. Charles Rhines, a gay man on death row in South Dakota, as a result of an anti-gay bias of the jurors’. The letter of allegation documents that jurors made a number of biased statements about Mr Rhines including that  Mr. Rhines might be “a ‘sexual threat to other inmates and take advantage of other young men in or outside of prison.” In a signed statement, one juror stated that the jury “knew that he was a homosexual and thought that he shouldn’t be able to spend his life with men in prison.” Another juror recalled a juror saying “if he’s gay we’d be sending him where he wants to go if we voted for [life in prison].” A third juror confirmed that “[t]here was lots of discussion of homosexuality. There was a lot of disgust.” The letter of allegation noted that, ‘Considering the newly identified information about the jury’s anti-gay bias, carrying out Mr. Rhines’s death sentence before reviewing these new facts would be in violation of his right life.’[4] The United States simply ignored this communication from the Independent Expert.

In sum, what stands reinforced is how the existence of LGBT persons, leave alone the possibility that LGBT persons have rights stands denied. The challenge in a swath of countries across the world including Egypt, Malaysia, Guatemala, Kenya is to assert the existence of LGBT persons and the fact that the framework of universal human rights applies to all persons, including LGBT persons. The gravity of this challenge can be seen in the fact that even when grave violations of human rights occur, and the violations are brought to the attention of these states, they have chosen not to respond.

Limited engagement and limited acknowledgment of existence of LGBT persons

The OIC on the establishment of the SOGI mandate communicated its decision to boycott the mandate holder. However, though Brunei is a member of the OIC, it chooses to engage with the communication sent by the Independent Expert on SOGI along with other mandate holders which brought the violations of international human rights law of the Syariah Penal Code to the attention of Brunei:

Defining adultery and consensual same sex relations as criminal offenses, such as is done in the Syariah Penal Code Order, result in discrimination and violence against women and persons based on their perceived or actual sexual orientation or gender identity. The definition of sexual relations between consenting adults as criminal offenses should be regarded as an unlawful interference with the right to privacy of the individuals concerned, such as defined in article 12 of the UDHR, which provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. The imposition of the death penalty for offences related to homosexuality and adultery violates the right to life. Criminalization of same-sex relations also fuels stigma, legitimizes prejudice and exposes people to family and institutional violence and further human rights abuses such as hate crimes, death threats and torture.[5]

In its response Brunei noted its commitment to ‘international obligations in promoting and protecting human rights’ including commitments under ‘CEDAW and the Convention Against Torture (UNCAT)’. It went on to assert that ‘it takes pride in its sovereignty’ and to note that ‘diversity in cultural, religious and  traditional values, means that that ‘there is no one standard that fits all’ Coming to the specific allegation regarding the breach of international law, by the criminalization of same sex conduct it stated that, ‘the Syariah Special Code ‘does not criminalize nor has any intention to victimize a person’s status based on sexual orientation or belief including same sex relations. The criminalisation of adultery and sodomy is to safeguard the sanctity of family lineage and marriage of individual Muslims particularly women.’ When it came to the question of punishment for  sodomy, Brunei made the point that the proof required was of a high standard as it required ‘no less than two or four men of high moral standing and piety as witnesses- to the exclusion of every form of circumstantial evidence, coupled with very high standard of proof of ‘no doubt at all’ for all aspects, which goes further than the common law standard of ‘beyond reasonable doubt’. The standards of piety of the male witness is extremely high that it is extremely difficult to find in this day and age, to the extent that convictions for had may solely rest on confessions of the offender. Unlike the common law principle, confessions are encourage to be withdrawn and can be withdrawn at any time even during execution of sentence’.

Brunei showed a form of engagement with the mandate which acknowledged the roots of the mandate in international human rights law and then choses to interpret international human rights law in the light of its own religious and cultural specificities. The assertion that it ‘does not criminalize a person’s status based on sexual orientation or belief including same sex relations’, wilfully fails to understand the link between sexual conduct, sexual relations and sexual identity. The criminalization of a form of sexual conduct associated with a certain group impacts LGBT persons. The procedural protections against the use of the law may mean that  that the conviction rate is low. But the problem with anti-sodomy laws worldwide are not necessarily ‘prosecution’ but ‘persecution’ under the  cover of the law. Anti-sodomy laws chill the expression of one’s selfhood and violate the right to expression, dignity and privacy. As such, regardless of the procedural protections, the fact that such a law exists on the statute books legitimizes the persecution of LGBT persons.

Indonesia is the other member of the OIC, which has chosen to engage with the SOGI mandate. This was in response to a joint communication concerning the alleged arbitrary arrests, detention and ill-treatment of twelve waria, or transgender women, in Aceh province. [6]

The Indonesian government highlighted the fact that Aceh province had a special autonomy which meant it could frame by-laws to complement existing criminal laws. The response also highlighted that in Indonesia, there are ‘divergent views on LGBT/SOGI’ and that ‘the national philosophy emphasizes the primacy of religious values in daily life’. The response went on to assert ‘Indonesia’s commitment to respect human rights in parallel with social norms that exist in Indonesia’. The response also noted that ‘there should be no discrimination against minorities in Indonesia’ and stressed the responsibility of the Indonesian police to ‘protect’ anyone ‘who feels threatened due to his or her sexuality’. [7]

While the response does raise many questions including the legality of placing ‘respecting social norms’ and the ‘commitment to respect human rights’ on the same plane [8] it’s important to note that the Government is not ‘negating’ LGBT existence but in a limited sense, acknowledging LGBT persons rights to non-discrimination as a part of universal human rights. This response requires a deeper engagement with the Indonesian government with a view to ensuring respect for LGBT rights in Indonesia.

Robust engagement and full acknowledgment promising change

While the response of Brunei and  Indonesia can be seen as sharing some of the premises of international human rights law which disagreeing with other premises, the response by the government of Korea can be characterized as a more robust acknowledgment. In the joint communication to the government of Korea, the Independent Expert along with other mandate holders, drew attention to ‘recent cases of arrests, interrogations, detentions and prosecutions of soldiers and military personnel perceived to be gay, under the Republic of Korea’s Military Criminal Act [9]. Details regarding 16 cases of gay military personnel who were identified by the Cyber Investigation Team were brought to the attention of the Government.

The Government in its response justified the arrests as necessitated by Articles 92-6 of the Military Criminal Act under which the arrests of serving military personnel perceived to be gay was not to ‘impose criminal punishment by reason of one’s sexual orientation’, but in order to ‘uphold military order and discipline, taking into account the nature of communal living in the barracks’.

The response went on to note that, ‘an amendment bill to abolish the provision has been submitted to the National Assembly, so the Ministry of National Defense is considering the necessity of the amendment.’ The response also reiterated that, ‘the rights of homosexuals within the military are protected by a separate regulation. The regulation stipulates prohibition of discrimination based on sexual orientation; prohibition of any acts to identify homosexuals through questionnaires and the like; confidentiality of personal secrets so that even when one’s sexual orientation is revealed, such fact or record thereof will not be disclosed.’ [10]

The robust response of the Republic of Korea lies in its promise of action to rectify the situation by committing to reforming the relevant laws. This provides an opening for civil society groups to advocate that Korea must fulfil its commitment and repeal the offending criminal provisions.

Relevance of continued engagement

The four responses by Russia, Brunei, Indonesia and the Republic of Korea indicate the range of possibilities between complete negation, limited acknowledgement and a robust acknowledgement. While Korea’s response promises action, Brunei’s response is based on an acknowledgement of the applicability of international human right law, but is limited in its understanding of sexual expression as a part of the right to dignity, privacy and equality under international human rights law. With respect to Indonesia, while the acknowledgment of LGBT persons as persons entitled to the enjoyment of universal human rights is an important starting point, the ‘solution’ of an internal investigation by the North Aceh chief of police is less than reassuring. With respect to Russia and Egypt the struggle is to assert that LGBT persons are human beings. The strategy will have to be a continuous assertion of the humanity of LGBT persons entitled to the full panoply of human rights. Regardless of the response or lack of response by the state, the mechanism of the ‘Letter of Allegation’ allows for a domestic issue to get a wider international audience.

Addressing the underuse of  Letters of Allegation

While there is a regional diversity of countries represented, it is clear that this aspect of the mandate is significantly underused especially when compared to other mandates. The table below shows the use of Letters of Allegation by other mandate holders such as ‘arbitrary detention’, ‘freedom of opinion and expression’ etc. An analysis of the table shows that there is scope for more extensive use of this aspect of the mandate of the Independent Expert on SOGI.

Statistics on communications and replies by mandate [11]
Mandate Reporting period: 1 June to 30 November 2018 Reporting period: 1 June 2006 to 30 November 2018
Communications sent replied to by 31 January 2019 response rate# Communications sent replied to by 31 January 2019 response rate#
Arbitrary Detention (+) 99 45 46% 1692 947 56%
Freedom of opinion and expression 130 61 47% 3246 1729 53%
Freedom of peaceful assembly and of association 79 37 47% 1257 721 57%
Human rights defenders 122 62 51% 3454 1940 56%
Sexual orientation and gender identity 12 4 33% 30 16 53%

The reason for the comparative underuse of this aspect of the SOGI mandate  compared to the other mandates listed above, could be because:

  • the mandate holder has not received information which fit the format prescribed to be considered a letter of allegation or urgent appeal.
  • the mandate holder inspite of receiving many communications has not sent many urgent appeals or letters of allegations to the concerned government
  • The mandate holder has felt that strategically it made more sense for the communication to go from another mandate holder with whom the subject matter overlaps

Keeping in mind the strategic concern highlighted above it is nonetheless important to increase civil society awareness around the mandate and encourage more civil society organisations with a SOGI focus to begin filing communications with the Special Procedures. As a recent study on impact of communications sent by the Special Rapporteur on Human Rights Defenders shows that a majority of those who sent communications felt that the communications by the Special Rapporteur had a positive impact in redressing the human rights violation [12] . The study cautiously indicates that greater engagement with the mechanism of the Special Procedures can be of value to human rights activists seeking redressal for egregious human rights violations.

In this context of documented value of the Special Procedures, the underuse by civil society organisations engaging with SOGI issues of the Special Procedures is striking especially when we consider that the campaign letter to support the resolution had 850 signatures from 157 countries from around the world.

Country Visits

Building a SOGI Jurisprudence: The Reports of the Independent Expert

Can the Reports be used in national/regional level advocacy?

Need for Renewal of the Mandate: Institutionalizing a SOGIESC Jurisprudence


[1] Mandates of the Working Group on Arbitrary Detention; the Special Rapporteur on extrajudicial, summary or arbitrary executions; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity; and the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression.
[2] https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=23080
[3] https://spcommreports.ohchr.org/TMResultsBase/DownLoadFile?gId=81857
[4 https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=24005
[5] https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=24522
6] https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=23635
[7] https://spcommreports.ohchr.org/TMResultsBase/DownLoadFile?gId=81990
[8] See Vienna Declaration and Platform for Action which states that, ‘While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.’
[9] https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=23282
[10] https://spcommreports.ohchr.org/TMResultsBase/DownLoadFile?gId=81820
[11] The above table is extracted from Communications Report of the Special Procedures,  https://documents-dds-ny.un.org/doc/UNDOC/GEN/G19/030/68/PDF/G1903068.pdf?OpenElement
[12] The organizations and individuals surveyed in assessing case development were also asked about their perception of whether the Special Rapporteur’s communication had a distinct impact on the respective defender’s situation. In 24 percent of cases the respondents felt that there was a definite impact and in 40% of the cases there was a probable impact. However, as the author notes, ‘impact’ is difficult to measure when complainants pursue a range of strategies.  See Janika Spannagel, Chasing Shadows: A quantitative study of he Scope and Impact of UN Communications on Human Rights Defenders (2000–2016https://www.gppi.net/media/Spannagel_2018_Human_Rights_Defenders.pdf

 

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