Sexual orientation removed from UN resolution condemning executions

24 November 2010 by Maria Roche

The Social, Humanitarian and Cultural Affairs Commitee of the United Nations has narrowly voted to remove sexual orientation from a draft resolution against extrajudicial, summary or arbitrary executions.

In light of the guarantee of the right to life, liberty and security of person in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, the resolution condemns all extrajudicial, summary or arbitrary executions and demands that all States take effective action to prevent, combat, investigate and eliminate such executions.

For the past 10 years, the resolution has included sexual orientation in the non-exhaustive list of discriminatory reasons for which killings have been committed:

6 “Urges all States to: …

(b)  ensure the effective protection of the right to life of all persons under their jurisdiction and to investigate promptly and thoroughly all killings, including those targeted at specific groups of persons, such as …  all killings committed for any discriminatory reason, including sexual orientation … ”

The reference to sexual orientation had been included in the resolution since 1999, based on the repeated and express concern of the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions for lesbian, gay, bisexual and transgender people as victims of such crimes – a concern that persists in his most recent report [at paragraph 59].

The amendment proposed that:

in operative paragraph 6 (b), replace ‘any discriminatory reason, including sexual orientation’ with ‘discriminatory reasons on any basis’ ”

Whilst the seemingly broader language of the amendment might, at first glance, appear motivated by a desire to be comprehensive, it is clear from the language of amendment’s proponents that the motivation was otherwise.

In a UN press release it was reported that the representative of Benin, on behalf of the African Group, proposing the amendment stated that:

sexual orientation had no legal foundation in any international human rights instruments and there was no legal justification to highlight it”

whilst the representative of Morocco, on behalf of the Organization of the Islamic Conference, said that:

the Group was seriously concerned by controversial and undefined notions that had no foundation in international human rights instruments. Intolerance and discrimination existed in cases of colour, race, gender and religion, to mention only a few …  An attempt to create new rights was a matter of concern for the Group.”

No amendment was proposed to generalise the specific references in paragraph 6 (b) to killings targeted at racial, national, ethnic, religious or linguistic minorities; street children; human rights defenders including lawyers, journalists and demonstrators; refugees; migrants or indigenous people. Only the reference to sexual orientation was deleted.

The representative of Sweden in advocating against the amendment reminded the Committee that:

Sexual orientation had often been the motive for extrajudicial killings. The deletion of the reference would amount to the Committee looking the other way concerning arbitrary executions based on sexual orientation.”

The representative for Switzerland noted that

protection of lesbians, gays, bisexuals and transsexuals was important … It was important to point out that homophobic violence [is] a reality caused by law enforcement forces in many countries throughout the world … The number of people killed on the basis of sexual identity had reached new levels, which was a major concern for all”.

The representative of the United Kingdom in voting against the amendment submitted that:

… to accept the amendment was to accept that these people did not need mention, and was an affront to human dignity.”

In a recorded vote the Committee then approved the amendment to paragraph 6 by 79 votes in favour to 70 against and 17 abstaining. The draft resolution as amended, was then approved by a recorded vote of 165 in favour to 0 against, with 10 abstentions including the United States.

The vote has caused consternation amongst states and human rights campaigners. In an explanation of their vote, the US Mission to the UN said:

the United States strongly agrees with and appreciates the cosponsors’ efforts to retain language specifically condemning ESAs targeting vulnerable groups, particularly members of the LGBT community, and we were dismayed that this reference could not survive an unfriendly amendment.”

The International Gay and Lesbian Human Rights Commission (IGLHRC) which has UN consultative status commented:

This vote is a dangerous and disturbing development … it essentially removes the important recognition of the particular vulnerability faced by lesbian, gay, bisexual and transgender people – a recognition that is crucial at a time when 76 countries around the world criminalize homosexuality, five consider it a capital crime, and countries like Uganda are considering adding the death penalty to their laws criminalizing homosexuality.”

Stonewall called the vote “deeply disturbing … a worrying and regressive step” whilst the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) condemned the vote stating:

Yesterday’s vote is a real disgrace set up by 79 governments trying to stop the increasing recognition of lesbians, gays, bisexuals, trans and intersex people as human beings like all others.”

Reuters quotes Philippe Bolopion, United Nations Advocacy Director of Human Rights Watch, as saying:

It’s a step backwards and it’s extremely disappointing that some countries felt the need to remove the reference to sexual orientation, when sexual orientation is the very reason why so many people around the world have been subjected to violence”.

The resolution is expected to be formally adopted by the UN General Assembly in December.  Although the UN General Assembly lacks formal legislative authority and resolutions are generally held to be non-binding on member states, the International Court of Justice has considered such resolutions, whilst being recommendatory in nature, capable of having legal significance as being reflective of customary international law.

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