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דו"ח האו"ם לפגיעה בזכויות אדם - על בסיס מגדר ונטיה מינית

דו"ח הפרות זכויות אדם על בסיס מגדר ונטיה מינית שמועלה לדיון בימים אלה (מרץ 2007) במועצה העליונה לזכויות אדם באו"ם
תאריך פרסום: 15/3/2007

For further information:

John Fisher, ARC International

+41-79-508-3968

john@arc-international.net

 

 

 

REFERENCES TO SEXUAL ORIENTATION, GENDER IDENTITY AND RELATED ISSUES IN REPORTS SUBMITTED TO THE COUNCIL

 

March 14, 2007

 

This document details references to human rights violations based on sexual orientation and gender identity, or related themes of relevance, in the reports submitted to the 4th Session of the UN Human Rights Council.  A number of reports, particularly outlining communications by the Special Procedures with States, are not yet available, and this summary will be further updated as required.

 

UN High Commissioner for Human Rights (The Hon. Louise Arbour), A/HRC/4/49:

 

Summary: The focus of the High Commissioner’s report is on the institution-building work of the Council, including the role of the Special Procedures, the importance of universal protection, non-discrimination, particularly in the context of women’s human rights, and the abolition of the death penalty.

 

·          As noted in my report to the sixty-first session of the General Assembly, I believe that the Human Rights Council should ensure, to the fullest extent possible, universal coverage of human rights issues while focusing on those human rights situations that warrant special or urgent attention. (para. 8)

 

·          Women’s human rights and gender: For many years the United Nations has been trying to address the enormous barriers that face individuals in the enjoyment of their rights, as a result of inequalities that result from gender-based discrimination.  I have committed our Office to ensure that gender is at the core of the work we undertake and to that end I am pleased to inform you that I have established a Women’s Rights and Gender Unit, which is now both staffed and functioning.  The Unit will enable the office to consolidate its capacity and expertise to play a leadership role in overcoming the multiple forms of discrimination that women the world over confront. (para. 49)

 

·          Oral report (translation): “These experts [Special Procedures] identify violations to which vulnerable populations, certain groups or certain individuals are exposed, and contribute to raising the awareness of both public opinion and governments.

 

Also, in order to ensure universal protection and avoid substantive gaps in the protection of human rights, the Council should encourage States to strengthen their cooperation with the Special Procedures. ….

 

Women are particularly vulnerable, not only to violations of economic, social and cultural rights, but also to poverty, discrimination and violence in all its forms.”

 

Special Representative of the Secretary General on Human Rights Defenders (Ms. Hina Jilani), A/HRC/4/37:

 

Summary: The Special Representative dedicates a section of her report to lesbian, gay, bisexual, transgender and intersex (LGBTI) human rights defenders (paras. 93-97), noting that these defenders “have been threatened, had their houses and offices raided, they have been attacked, tortured, sexually abused, tormented by regular death threats and even killed.”  She also notes the “almost complete lack of seriousness with which such cases are treated by the concerned authorities.”  In a section on “the right to health” the Special Representative also highlights violations directed against defenders working on issues of health, HIV/AIDS and sexual orientation (paras 73-74).

 

·          “Chapter III focuses on human rights defenders who are at particular risk and considers the risks involved when defending the rights of indigenous people and minorities, lesbian, gay, bisexual, transgender and intersex persons and women human rights defenders.” (Report summary)

 

·          “During the reporting year, the Special Representative participated in numerous events organized by non-governmental organizations (NGOs) including… the First International Conference on lesbian, gay, bisexual and transgender human rights in Montreal, Canada …” (para. 6)

 

·          “The economic, social and cultural rights, discussed further in section B below in the context of various activities of defenders, are protected by the following provisions in the ICESCR:  … Furthermore, States parties have an obligation to guarantee that all ESCR are exercised “without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” (art. 2 (2)) and must be applied equally to men and women (art. 3).  It is in the context of this provision that in chapter III below, the Special Representative focuses on defenders who are at particular risk, namely those who defend the rights of indigenous people and minorities; lesbian, gay, bisexual, transgender and intersex (LGBTI) persons and women human rights defenders.” (para. 17)

 

·          The right to health:

… Many defenders who promote the right to health are working on issues connected to combating HIV/AIDS.  … In August 2004 a communication was sent to the Government of Nepal concerning members of the Blue Diamond Society, an NGO that provides outreach work for LGBTI persons and campaigns to combat HIV/AIDS.  A private writ had been filed to close down the organization on the grounds that it “promoted homosexuality” and 39 members were arrested on the street without charge and held without food or water for 15 hours.  Three members were alleged to have been beaten and raped by the police.  In December 2005, a communication was sent to the Government of Jamaica, concerning Lenford “Steve” Harvey who was killed allegedly because of his activities in the defence of the rights of marginalized people in Jamaican society, including persons living with HIV/AIDS.” (paras. 73-74)

 

·          Defending the rights of lesbian, gay, bisexual, transgender and intersex persons:

 

93. Both ICESCR (art. 2 (2)) and ICCPR (art. 2 (1)) contain non-discrimination clauses, and article 7 of the Declaration on Human Rights Defenders specifically provides that “everyone has the right, individually and in association with others to develop and discuss new human rights ideas and principles and to advocate their acceptance”.  The 1993 Vienna Declaration and Programme of Action confirmed that “(a)ll human rights are universal, indivisible and interdependent and interrelated.  […]  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” and thus, to ensure that the protection of international human rights norms is universally applied.

 

94. Since the establishment of the mandate, the Special Representative has acted on 36 cases of alleged attacks and threats against defenders of LGBTI rights in all regions.

 

95. Communications have been sent to Belarus, the Holy See, Latvia, Moldova, Poland, Russia, Turkey, Nigeria, Uganda, India, Nepal, Argentina, Chile, Ecuador, Honduras, Jamaica and Iran.  Defenders have been threatened, had their houses and offices raided, they have been attacked, tortured, sexually abused, tormented by regular death threats and even killed.  A major concern in this regard is an almost complete lack of seriousness with which such cases are treated by the concerned authorities.

 

96. In numerous cases from all regions, police or government officials are the alleged perpetrators of violence and threats against defenders of LGBTI rights.  In several of these cases, the authorities have prohibited demonstrations, conferences and meetings, denied registration of organizations working for LGBTI rights and police officers have, allegedly, beaten up or even sexually abused these defenders of LGBTI rights.  The authorities have generally attempted to justify action against these defenders by arguing that “the public” does not want these demonstrations to take place, or these organizations to be registered, or that “the people” do not want LGBTI people in their community.  The Special Representative recalls articles 2 and 12 of the Declaration on Human Rights Defenders to remind States of their responsibility for protecting defenders against violence and threats.  States are also responsible for, inter alia, ensuring that all programmes for training of law enforcement officers and public officials include appropriate elements of human rights teaching (art. 15).

97. In December 2004, the Special Representative communicated her concerns to the Government of Jamaica regarding published comments of the Police Federation’s Public Relations officer condemning the role of “so-called” human rights organizations and dismissing concerns regarding violence against LGBTI defenders, stating that “the Government and police cannot be held responsible for … the cultural responses of the population …”.  In January 2006, the Special Representative sent her concerns to the Government of Nigeria concerning a draft bill which would, if approved, introduce criminal penalties for public advocacy or associations supporting LGBTI rights.  In June 2006, a communication was sent to the Government of Poland concerning the Director of the National In-Service Training Centre who was dismissed by the Minister for Education, allegedly for his involvement in the publication and dissemination of a Council of Europe manual on human rights education for young people, which included issues in relation to sexual orientation.

 

Add.1 Mission to Brazil:

 

·          “Civil society organizations working on human rights continued to grow in the 1990s.  Initially, most organizations concentrated their efforts on reporting violations of civil and political rights.  However, they gradually expanded the scope of their mandate and have now adopted an inclusive approach to the defence of human rights, focusing in particular on economic, social, environmental and cultural rights and on discrimination based on race, sexual orientation and gender.” (para. 5)

 

·          “During her visit, the Special Representative had the opportunity to examine the situation of defenders involved in social movements, such as those for the rights of landless rural workers, peasants, indigenous communities and people of African descent, sexual minorities, the homeless, and people affected by dams.” (para. 10)

 

·          “Activists advocating the rights of lesbian, gay, bisexual and transgender (LGBT) persons have also been targets of threats.  In most cases these threats emanate from non-State entities.  For instance, the Directors of Coturno de Venus, a lesbian feminist association in Brasilia, reported receiving death threats from a neo-fascist organization in September 2005 because of their activities on the occasion of the celebration of the day for lesbians in August 2005.  In another instance, Claudio Alves dos Santos, an activist for the rights of homosexuals who worked for the Referral Centre against Homosexual Violence and Discrimination in Rio de Janeiro, was killed after being severely beaten and tortured in October 2005.” (para. 32)

 

Public statement re: Nigerian Bill

 

·          The Special Representative also participated in a joint statement expressing concerns about a draft Nigerian Bill which would effectively criminalise all forms of same-sex advocacy, expression and conduct:

 

“The introduction of criminal penalties of imprisonment in the Bill, if enacted, would in particular have a chilling effect for local human rights defenders who undertake peaceful advocacy on the adverse human rights implications of the law for lesbian, gay, bisexual and transgender persons. Such provisions are contrary to the principle recognized in the Declaration on Human Rights Defenders that "everyone has the right, individually and in association with others to develop and discuss new human rights ideas and principles and to advocate their acceptance.”

(http://www.unhchr.ch/huricane/huricane.nsf/view01/A8F5CC6EAC2D6C52C125728B0054CD9B?opendocument)

 

Working Group on Arbitrary Detention, A/HRC/4/40 and Opinion No. 22/2006:

 

Summary: The Working Group noted that detention motivated by sexual orientation deserved “particular mention”, and issued an opinion on August 31, 2006 that the detention of 11 men arrested in a gay bar in Cameroon was arbitrary and in violation of international law.  The Working Group expressed particular concern that one of the prisoners died as a result of his arbitrary detention.

 

·          “Among the issues analysed over the years in the Working Group’s reports, the following deserve particular mention: … Detention motivated by sexual orientation” (para. 6)

 

·          The Working Group issued an opinion on August 31, 2006 that the detention of 11 men arrested in a gay bar in Cameroon was arbitrary, and that:

 

“20. Since the Human Rights Committee adopted its Observation in the case Toonen v. Australia and the Working Group adopted its Opinion (Avis) 7/2002 (Egypt), the Group follows the approach developed in these opinions. This means that the existence of laws which criminalize private homosexual conduct between consenting adults, as well as the application of criminal sanctions against people accused of such conduct, violates the rights to the protection of private life and non-discrimination established by the International Covenant on Civil and Political Rights.  As a consequence, the Working Group considers that the criminalization of homosexuality established in the Cameroonian criminal legislation is incompatible with articles 17 and 26 of the International Covenant.

 

21. The Working Group concludes that the deprivation of liberty applied against the 11 persons in question was arbitrary …

 

22.  In accordance with paragraph 17 (a) of its procedures, the Group considers this case deserves an Opinion from the Working Group, even though the persons were released. The Group has taken into account the importance of the case and the fact that one of the detainees died as a consequence of his arbitrary detention.”

 

(Unofficial Translation: Opinion No. 22/2006, Cameroon, August 31, 2006)

 

Special Rapporteur on extra-judicial, summary or arbitrary executions (Mr. Philip Alston), A/HRC/4/20:

 

Summary: The Special Rapporteur notes that he has received evidence of persons killed because of their sexual orientation and, after a thorough review of the jurisprudence, concludes that “if it is to comply with the most serious crimes restriction, the death penalty can only be imposed in cases where it can be shown that there was an intention to kill which resulted in the loss of life.” He notes that both “homosexual acts” and “sexual relations between consenting adults” have each been held to fall outside the “most serious crimes” requirement.

 

·          “A very brief statistical profile of the communications sent during the period under review shows that … 4 were killed for their sexual orientation” (para 8).

 

·          “Guatemala: … During my visit, I gathered evidence on the prevalence and causes of phenomena such as social cleansing, “femicide”, lynching, killings motivated by sexual orientation or identity, the killing of human rights defenders and prison violence.” (para. 10)

 

·          “The first Special Rapporteur dealt with the issue of the “most serious crimes” as early as 1984 when he surveyed the death penalty legislation of States to assess the range of offences for which it was then imposed in practice.In communications with Governments, the Special Rapporteur has addressed death sentences for offences and conduct including homosexual acts,71 matters of sexual orientation,72 sodomy,79  The range of offences involved invites an inquiry into the underlying normative rationale, and suggests that problems of non-compliance have remained widespread.” (para. 40)

 

·          “With respect to particular offences, the Commission on Human Rights and the Human Rights Committee have determined that a wide range of specific offences fall outside the scope of the “most serious crimes” for which the death penalty may be imposed.101 These include: … homosexual acts,113sexual relations between consenting adults115 … ” (para. 51)

 

·          “The conclusion to be drawn from a thorough and systematic review of the jurisprudence of all of the principal United Nations bodies charged with interpreting these provisions is that the death penalty can only be imposed in such a way that it complies with the stricture that it must be limited to the most serious crimes, in cases where it can be shown that there was an intention to kill which resulted in the loss of life.” (para. 53)

 

Special Rapporteur on Contemporary forms of racism, racial discrimination, xenophobia & related intolerance (Mr. Doudou Diène), A/HRC/4/19:

 

Summary: The Special Rapporteur affirms the “holistic approach” of the UK Commission for Equality and Human Rights in combating all forms of discrimination, including on grounds of sexual orientation, and calls for a similar approach in Italian legislation. The Special Rapporteur participated in a joint statement expressing concerns about a draft Nigerian Bill that would criminalise various forms of same-sex advocacy and conduct.

 

·          The report affirms the importance of the new Commission for Equality and Human Rights in the UK making “combating racism a high priority, while promoting a holistic approach to the fight against all forms of discrimination (including race, religious belief, age, disability and sexual preference), as recommended by the Special Rapporteur in his recent reports.” (para 31).

 

·          Add.4 - Mission to Italy:

 

“The Government should consider the establishment by law of an independent national institution for the promotion and protection of human rights in accordance with the Paris Principles and for combating all forms of discrimination in a holistic manner, including all grounds such as race, ethnicity, nationality, sex, age, disability, sexual orientation and any other status.” (para. 69)

 

·          The Special Rapporteur participated in a joint statement expressing concerns about a draft Nigerian Bill which would effectively criminalise all forms of same-sex advocacy, expression and conduct:

 

“The Bill, as currently drafted, heightens the potential for stigmatization, discrimination and intolerance against individuals for their actual and imputed sexual orientation or their gender identity, raising serious concerns regarding their protection. We are apprehensive that, if adopted, the proposed law will make persons engaging in, or perceived to be engaging in, same sex relationships in Nigeria more susceptible to arbitrary arrests, detention, torture and ill-treatment and expose them even more to violence and attacks on their dignity. …


In this context, we note with concern that same-sex relationships are already prohibited and criminalized in Nigeria and carry the death penalty. During the last session of the Human Rights Council in Geneva, the Government of Nigeria expressed its view that the death penalty by stoning for "unnatural sexual acts" such as lesbianism and homosexuality may be considered "appropriate and just punishment". …

  
Whilst the significance of regional and national particularities are acknowledged, we nevertheless remind the Government that such particularities or historical, cultural or religious practices, though significant in many aspects, do not absolve governments from their duty to promote and protect all human rights and fundamental freedoms and to ensure that such protection is universally applied and respected.


We therefore urge the Government to reconsider the Bill and to ensure that any law that is adopted conforms to international human rights norms and to Nigeria's obligations under international law. Nigeria's recent progress in institutionalizing democratic processes and practices strengthens the hope that the Government will give due consideration to our serious concerns and will take immediate steps to withdraw the Bill".

 

(http://www.unhchr.ch/huricane/huricane.nsf/view01/A8F5CC6EAC2D6C52C125728B0054CD9B?opendocument)

 

 

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