THE OUTRAGES against human dignity committed by the Nazis in World War II galvanized the global community in its search for justice and reconciliation, beginning with the trials of Nazi war criminals at Nuremberg in 1945. The second half of the 20th century witnessed the progressive development of human rights and humanitarian law against the worst violations, culminating in the UN’s ad hoc international criminal tribunals for the former Yugoslavia and Rwanda, and the global campaign to establish the world’s first permanent International Criminal Court (ICC). On July 1, 2002, the Rome Statute establishing the ICC went into force. With its ability to impose individual criminal responsibility for war crimes, crimes against humanity, and genocide, the ICC represents a momentous advance in international justice as a court of last resort for victims of atrocities. As of September 2003, the Rome Statute has 92 States Parties and 139 signatories, representing every region of the world and diverse legal and political systems.
Even though gay people were expressly singled out for persecution by the Nazis under Paragraph 175 of German law, and even though thousands died in concentration camps,* systematic gay and lesbian persecution has never been explicitly included in international criminal law. In 1995, the mere suggestion of including sexual orientation at the historic Beijing World Conference on Women’s “Platform for Action” resulted in a storm of anti-gay name-calling by conservative countries and their allied organizations. In June 2001, when the San Francisco-based International Gay and Lesbian Human Rights Commission (iglhrc, a UN-accredited non-governmental organization) sought to make a three-minute presentation about discrimination during a UN conference on HIV, an alliance of Islamic countries sought—unsuccessfully—to block the presentation on the grounds that iglhrc promoted immoral behavior.
While GLBT people have made important strides towards fundamental equality and non-discrimination in Western Europe, Australia, North America, South Africa, and parts of Latin America, homosexuality remains pathologized and criminally punishable by imprisonment and even death in much of the developing world and virtually all of the Islamic world. Until the historic Lawrence v. Texas victory overturned sodomy laws in the U.S., adult same-sex sexual behavior was punishable by imprisonment in several states. In many countries, including current strategic U.S. allies like Egypt, Saudi Arabia, and Uzbekistan, state-sanctioned persecution is widespread, including violence, blackmail, and routine harassment. In Egypt, the second largest recipient of U.S. foreign aid after Israel, widespread anti-gay witch hunts have included Internet entrapment, harassment, police torture, imprisonment, and sham trials under phony charges with no right of appeal.
Cynthia Rothschild (in a paper delivered at an iglhrc conference in 2000) describes how powerful lobbying by the Vatican—in concert with Islamic countries and conservative North American organizations—has consistently impeded attempts to address gay and lesbian issues at international human rights and women’s rights conferences in the past decade. At the Rome Conference, this same group of opponents claimed that any inclusion of “gender” in the draft statute was a backdoor point of entry for sexual orientation. So extreme was their opposition that they attempted to eliminate every reference to gender in the statute, including the treatment of rape and sexual violence as war crimes, since they were referred to as “gender” crimes.
Fortunately, a network of women’s human rights activists from around the world had come together in Rome under the umbrella of the Women’s Caucus for Gender Justice. The Caucus fought hard and won the historic inclusion of gender crimes—including rape, sexual slavery, forced pregnancy, enforced sterilization, and forced prostitution—in the definition of crimes against humanity. For the first time in international law, the Rome Statute requires expertise on gender issues among ICC personnel and a fair representation of men and women among its judges. Wrote Professor Rhonda Copelon of the Caucus: “[The opposition] had several goals in seeking to eliminate the word gender from the Rome Statute. It wanted to eliminate recognition of the social construction of gender roles and hierarchy, since such recognition is inconsistent with the view that males and females are essentially different and have, therefore, different roles, status and rights. It also sought to preclude consideration of persecution or discrimination based on sexual orientation or gender identity” (46 McGill Law Journal, 217). Efforts to write gender out of the statute failed by a large majority. Ultimately, Article 7(h) of the Rome Statute adopted the following definition of persecution as a crime against humanity:
Persecution (when committed as part of a widespread or systematic attack directed against a civilian population, with knowledge of the attack) against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.
According to paragraph 3, “‘gender’ refers to the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above.” This curious definition and its superfluous second sentence reflect the fear of gender zealots that sexual orientation may “sneak in” through this definition. Recall that Nazi persecution of homosexuals was based on their image as betrayers of assigned gender roles. Stereotyped as weak and effeminate, gay men were persecuted for being transgressors of Aryan hypermasculinity. Despite attempts by opponents to exclude anti-gay persecution from the reach of international law, the adopted definition of gender in the Rome Statute, especially its understanding as a social construction, effectively ensures the inclusion of sexual orientation. It rests on the Court’s judges (which include the first openly gay international judge elected by majority vote by States Parties) to determine how the statute may apply in potential cases of anti-gay persecution.
THAT BERLIN’S gays and lesbians would witness in the 1930’s the most systematic assault on homosexuals in modern history could not have been predicted from the tolerant Bohemian atmosphere of the 20’s. The extent to which blind homophobia and brutal anti-gay persecution formed a core element of Nazi ideology must never be forgotten. So grave was the perceived threat of homosexuality that in 1936 the Nazis established “The Federal Security Office for Combating Abortion and Homosexuality,” announcing an agenda that resonates eerily with today’s climate of “abstinence-only” sexuality, fanatical opposition to gay and lesbian equality, and anti-abortion evangelism at the core of the Republican Party. Positive portrayals of gay and lesbian life in the media and landmark gay rights victories such as Lawrence have energized opponents of equal rights. In February 2003, Minnesota state lawmaker Arlon Lindler, a Republican, introduced a draconian bill to erase all reference to homosexual victims of the Holocaust from Minnesota law, as well as to rescind all of the state’s nondiscrimination provisions that address sexual orientation. In the Republican-controlled Texas legislature, lawmakers downplayed the more pressing matter of a $9.9 billion budget deficit in order to focus on a string of anti-gay laws, including the automatic exclusion of gay people from foster parenting and denying recognition of same-sex marriages.
Despite America’s leadership in Nuremberg and its role in the development of the UN ad hoc tribunals, the U.S. strongly opposes the ICC today. This opposition rests primarily on the perception that, given its global military presence, the U.S. could become the target of frivolous “politically motivated” trials. Little credence can be given to this claim, as a strong principle of complementarity is embedded in the Rome Statute (on the insistence of U.S. delegations in the drafting process!). In addition, the Court may only take up a case when countries are genuinely unable or unwilling to investigate or prosecute, and cases may also be deferred for a renewable period of one year by the UN Security Council. While President Clinton signed the Rome Statute on December 31, 2000, he expressed reservations about sending the treaty to Congress. Then, in an act unprecedented in the history of UN treaties, the Bush administration “withdrew” its signature from the Rome Statute in 2001 and launched a worldwide campaign to seek bilateral immunity from international tribunals for all U.S. citizens. Countries refusing to enter into such agreements are being punished by the withdrawal of U.S. military assistance. Opposition to the ICC by the Bush administration followed a pattern of unilateralism in international affairs, including withdrawal from the Kyoto Protocol and the Comprehensive Test Ban Treaty, and the de-funding of UN programs for women’s health.
In the sphere of gay and lesbians rights, mainstream U.S. gay and lesbian organizations have been conspicuously missing from key international human rights conferences and UN meetings. Even the most powerful national organizations have not effectively maneuvered their domestic clout to influence the government’s positions at these venues. While forces of the organized Right and religious extremists lobbied to prevent the mere mention of sexual orientation at the Rome Conference, there was no organized gay and lesbian lobby from any country with close ties to governments. A handful of openly gay and lesbian individuals participated in the Rome Conference as part of mainstream human rights advocacy groups, but due to the prevailing anti-gay climate, many faced harassment, verbal abuse, and character defamation that hindered their work.
It is well worth noting that the Lawrence decision included a number of references to decisions by the European Court of Human Rights and decriminalization of sodomy in other countries, proving that international developments can offer powerful tools for advocacy in the U.S. Thus American gay and lesbian groups would be well-advised to strengthen their ties with overseas organizations and to collaborate in developing an expanding network of like-minded government delegates at the UN. In April 2003, Brazil put forth a resolution at the UN Human Rights Commission in Geneva urging an end to discrimination based on sexual orientation. After being vigorously opposed by a group of Islamic countries, action was eventually “postponed.” Pakistan, a U.S. ally in the fight against terrorism, went so far as to distribute a memo to Council members asserting than the toothless non-discrimination resolution would constitute an “insult” to the world’s Muslims. While the resolution was supported by other Western countries, the U.S. said it would abstain if the resolution came to a vote.
Other attempts to address gay and lesbian issues at the UN have had limited but promising success. In August 2003, the largest public event addressing gay issues was organized by unglobe, the gay and lesbian employees’ association at the UN, attended by Secretary General Kofi Annan. Also in a historic first, the Secretary’s office stated that “The United Nations cannot condone any persecution of, or any discrimination against, people on any grounds.” But despite these symbolic gestures, any real progress is likely to be blocked by the countries traditionally opposed to any form of GLBT equality. These are also the countries in which gays and lesbians are socially, culturally, and legally excluded. Those of us in a position of relative freedom must speak out on their behalf. It is matter of grave concern, for instance, that many governments that impose the death penalty for homosexual acts or torture gays and lesbians are close American allies. When the U.S. provides billions of taxpayer dollars in aid to countries that routinely persecute homosexuals, domestic organizations must speak out more urgently against them. During the first gay witch hunt in Egypt in 2001, efforts led by iglhrc and other organizations resulted in a strongly worded letter from U.S. Senators condemning the sham trials and reminding Egypt that U.S. gay and lesbian taxpayers contribute to their aid.
As the ICC begins to establish itself, it will undoubtedly be influenced by the progressive development of international law, especially when the law finally begins to address gay and lesbian concerns. The UN High Commission for Human Rights has slowly begun to look at sexual orientation discrimination, but only a few countries (mostly European) provide comprehensive national anti-discrimination laws or constitutional anti-discrimination provisions. Since domestic laws greatly influence the broadening of rights at the international level, every attempt must be made to ensure that gays and lesbians as a social group receive basic freedom from discrimination under domestic laws. Continued documentation and detailed research are also needed to bring to light the brutal reality of systematic gay persecution, which would have evidentiary value when such cases finally find their way to international courts.
* Between 1933-1945, the Nazis sent an estimated 50,000 to 70,000 allegedly homosexual men to prison and/or concentration camps, according to surviving police and camp records. As the mass roundup of suspected homosexuals gathered momentum, most were sent directly to concentration camps without trial or prison, often under orders to be “shot while trying to escape,” or to become subjects in inhumane “medical” experiments. Between 5,000 and 15,000 men wearing pink triangles are estimated to have died in camp. See Richard Plant, The Pink Triangle: The Nazi War Against Homosexuals,” Henry Holt and Co., 1986.
Joydeep Sengupta is outreach liaison at the Coalition for the International Criminal Court in New York.