LGBTI MIGRATION: ASYLUM AND INTERNATIONAL PROTECTION TO STOP HATE CRIME INTRODUCTION

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Kenya LGBTI
Kenya’s LGBT refugees

The right of asylum is guaranteed by the rules of Geneva Convention of 28 July 1951 and Protocol of 31 January 1967 on the Status of Refugees in compliance with the Treaty on European Union. Nowadays, the whole world is witnessing an “inexorable intensification of violence” in armed conflicts, which has led to the greatest refugee crisis since World War II.

UNHCR’s strategic guidelines from 2017 to 2021 state that in 2015 over 55 million people have been displaced by their homes worldwide, due to wars and persecutions. The situation has become even more complex and precarious in March 2016 when European Union and Turkey launched a highly politicized plan to reduce the flow of refugees in Europe, causing refugees to fall into the hands of smugglers and traffickers. However, these are not the only reasons for people to migrate and apply for the refugee status in other countries, there may be many other factors: economic problems, lack of food or even persecution, abuse or even violation of human rights for LGBTI people. In these critical moments of intense movements, the problem of discrimination and violence in general, such as sexual violence aimed at women or, in particular, unmarried girls, older people, people with disabilities and Sexual Minorities is particularly marked and vulnerable people are the most exposed to it.

Vienna’s Fundamental Rights Agency has revealed in a report that many gays, lesbians, bisexuals, transsexuals and intersexuals (LGBTIs) leave their countries of origin and move to others due to the fact that they are the most vulnerable and exposed to

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Kenya camps

discrimination. Over 77 nations still criminalize homosexual relationships; ten still apply the death penalty. In many other countries LGBTI people go through harassment, arbitrary arrests, torture and beatings.

Although LGBTI people are classified as “vulnerable groups” and have right to apply for the asylum when seeking international protection, they often encounter great obstacles and their request often risks to be rejected because of their sexual orientation or gender identity, and social inclusion in new countries may be unsuccessful as well, leaving them in bad economic conditions.

In June 2011, the Council adopted the 17/19 Resolution – the first United Nations Human Rights resolution to include sexual orientation and gender identity. It was approved with a small margin, but still meaningful, and received the support of Council members from all regions. Its adoption paved the way for the first United Nations official report on the same subject and was later elaborated by the High Commissioner Office for Human Rights. For this reason, over the last few years awareness has been raised worldwide on the issues of discrimination and violence on gay, lesbian, bisexual, transsexual and intersexuality (LGBTIs). More and more information has been given on homicide cases, torture cases, arbitrary detentions, discrimination, access to health and education, and deprivation of housing for these people.

United Nations together with regional and national human rights bodies have identified gaps in the implementation of international laws, including the abrogation of discriminatory legislation in some countries such as Africa, Russia, Iran, Iraq, where LGBTI people are victims of torture, violence and ill-treatment. Laws are needed to guarantee freedom of expression, association and peaceful assembly.

Fortunately today, many governments are acknowledging this huge problem – both through legislation or policy measures and targeted educational programs, including the United Nations Human Rights Council and more than a hundred countries from all around the world who have voluntarily committed to take measures against violence and discrimination related to sexual orientation and gender identity, according to recommendations generated during the cycles of the Universal Periodic Revision.

However, despite the effort these countries are making and strategies to fight against violence aimed at LGBTI and intersex people there are still many problems to face. Even in the countries where the greatest results have been achieved for gay men and lesbian women, gaps have been identified in the case of intersex people. Along with the UNHCR Report, over a hundred Member States have committed themselves to tackling violence and discrimination on sexual orientation and gender identity, as well as having adopted new laws in some states, applied New global intergovernmental action plans to protect the rights of LGBTI people and set up consultative bodies that include gay and intersex people. In response to homophobic and transphobic violence, governments have adopted new laws to deal with hate crimes, such as measures to against bullying in schools and other policy actions to enforce the rights of convicted transgender. Other states have taken steps to stop abuses against LGBTI people, two of them have forbidden sex discrimination, one of those has also banned medical surgery for intersex children. Despite many positive developments, most countries lack comprehensive policies to face human rights violations against LGBTI people. People suffering abuse in their countries of origin are forced to leave and hide in more tolerant countries. Currently, among the most violent and discriminating countries, there are several African countries with many restrictive laws, Chechnya and many countries in Russia, many Muslim religion countries, such as Iran, Iraq and Syria, where death penalty is still applied.

In many countries where the situation of homosexuals remains critical, individuals need more support. Even the report submitted by the United Nations High Commissioner contains evidence of forms of violence and systematic discrimination directed at LGBTI people because of their sexual orientation and gender identity – from physical attacks, systematic violence, even homicides.

Article 3 of The Universal Declaration of Human Rights says that everyone has the right to life, be freedom and safety. Article 6 of the International Covenant on Civil and Political Rights says that every human being has a pertinent right to life. This right is protected by the law.

No one can be arbitrarily deprived of their life. Article 9 states that everyone has the right to their own freedom and security.

Convention on the Status of Refugees:
Article 33 (1): No Contracting State is in any way allowed to expel or return a refugee to the frontiers or to those territories in which their life or freedom would be threatened because of race, religion, nationality, belonging to a particular society, Group or political opinion.

Based on this, nations are obliged by international law to prevent extrajudicial extradition, investigate homicides perpetrated against LGBTI people, and have the duty to take the necessary measures to put an end to prejudice and stigmatization of homosexuality and send a clear message that no form of harassment, discrimination or violence based on sexual orientation or gender identity should be tolerated.

TO SUPPORT THE ASYLUM

States also have to provide a safe shelter to individuals persecuted for reasons of sexual orientation and gender identity. As stated in the paragraph above, article 33 of the Convention on the Status of Refugees states that nations which have signed it have the obligation not to expel or return any refugee to a place where their life and freedom would be threatened because of their race, religion, nationality, sexual orientation, or gender identity. The United Nations High Commissioner for Refugees (UNHCR) recommends that individuals who fear persecution because of their sexual orientation or gender identity are considered “members of a particular social group” and for this reason, nations should protect them by ensuring that they are not returned to a country where their lives or their freedom could be at stake. The UNHCR estimates at least 42 states that in the last year had guaranteed asylum to individuals who had well-founded evidence to prove their persecution based on sexual orientation and gender identity.

Other states have granted asylum without a clear policy on this matter, and even in countries that recognize these reasons as requirements for asylum, practices and procedures do not often meet international standards. The application revision is sometimes arbitrary and incoherent. Often the officials may have little or no awareness of LGBTI people’s condition, this remains a very important point from which we should start. Refugees are sometimes subjected to violence and discrimination even within their community. A refugee or an asylum seeker who escapes such persecution is more exposed to danger of physical and psychological violence, discrimination, criminalization and poverty. In some cases they are sent back to their country, with instructions to “go home and be more discreet in detecting their sexual orientation or gender identity,” an approach criticized by UHNCR.

Refugees

Many problems still need to be solved, regarding reception of LGBTI refugees. States should seek to better monitor the situation and punish perpetrators of extrajudicial executions and adopt laws for hate crimes that can protect individuals from violence based on Sexual Orientation and Gender Identity. Effective systems to report acts of violence and hate must be established. It is necessary to strengthen and improve political asylum laws that should recognize persecution as a result of sexual orientation and gender identity, which can be a valuable element in formulating the request. States also have the obligation to respect international law and to protect individuals from torture and other cruel, inhuman or degrading treatment. This includes the obligation to prohibit torture and other forms of ill-treatment and to punish such acts. Failing to investigate and lead perpetrators of torture to justice is in itself a violation of the international human rights law. In addition, the use of forced examinations on asylum seekers, cruel, inhuman and degrading treatment is prohibited. These rights are guaranteed by article 5 of the Universal Declaration of Human Rights, article 7 of the International Covenant on Civil and Political Rights and article 2 of the Convention Against Torture.

WHICH COUNTRIES NEED MORE PROTECTION

The world has has witnessed the huge number of migrants and refugees coming from Middle East and Africa who have embarked on troubled journeys across the Mediterranean Sea to reach Europe, forced to flee from wars, persecutions, poverty, abuses, violence and discrimination that they had to face in their countries. Thousands of these people have drowned and many have been forced to experience trafficking of human beings and abuse, both at sea and once crossed the border, tens of thousands of them got stuck in Greece and many others rejected by European countries.

The international community seeks to safeguard the rights of all IDPs – from internal refugees to asylum seekers – even when their countries of origin deprive them of their rights, as LGBTI people. Here are some of the most discriminating countries on sexual orientation and gender identity:

IRAQ IRAN

Every year, hundreds of people from Middle East countries ask for resettlement abroad due to growing discrimination against their sexuality or gender identity. Before their cases are handled by the UN High Commissioner for Refugees (UNHCR) so that they can get to another country, Iranian LGBTI refugees in central Turkey have to wait for an average of two years. In the case of consensus only few of them will be resettled later in Europe or North America. Unfortunately, especially in Europe, the number of resettled people is still very low and this does not help. Human Rights Watch (HRW) has called on the Iraqi government to arrest militias spreading campaign of violence, torture and murder against men suspected of homosexual conduct or not being sufficiently “virile.” The BBC has published some articles on the hate campaign for gay men in Iraq, reports of April 2016 suggested that 60 males were killed only in the last year because of their alleged homosexuality. A report published on the BBC’s website suggests that up to 90 gay people were killed.

Another 67-page report begins with the frustrating verses “They want to exterminate us”: homicides, torture, sexual orientation and gender identity in Iraq. It documents a vast campaign of extrajudicial executions, kidnappings and torture perpetrated against gay men which began in 2009 and has continued until today. Human Rights Watch (HRW) said the murders began in Sadr City’s Baghdad district, the stronghold of Mahdi militias and later spread to many other cities in Iraq. Mahdi’s Army spokesmen have begun to promote their fears of “third sex”, ie the “feminization” of Iraqi men and have suggested that military action may become a remedy. Other people have told HRW that the Iraqi security forces have joined in torture and killing. Consensual homosexual behavior among adults is not a criminal offense under Iraqi law, but Amnesty International states that the legal situation of LGBTI people in Iraq is “unclear,” and added that “the current government issued a decree that allows you to apply Sharia law to homosexuality (allowing the death penalty for gays). LGBTI Iraqis are now destined to “persecution and execution”. For this reason the asylum application and resettlement is one of the few salvations for LGBTI people living in these countries who risk severe punishments. International human rights law prohibits all forms of inhumane torture and treatment and guarantees the right to life, including the right to effective state protection. As showed by the evidence gathered in the Human Rights Watch report, this is not the case, and the association called on the United Nations High Commissioner for Refugees (UNHCR) and also the governments willing to accept Iraqi refugees, to offer them a rapid resettlement because these people live in extreme danger, being exposed to this enormous homophobic violence.

SYRIA

Even in Syria, the situation is not different. The government has confirmed that LGBTI refugees in Syria will be among the most vulnerable groups. The Islamic terrorist group known as Daesh (Islamic State) has executed dozens of gay men both in Iraq and Syria and LGBTI communities have consequently been forced to escape. In this case, resettlement is often the only durable solution to ensure the safety of homosexuals because of the serious dangers faced in their countries. In 2016, British PM confirmed that the United Kingdom would resettle 20,000 refugees who fled the Syrian conflict over the next five years – and the most vulnerable LGBTI groups would be privileged too. After the problem had been raised by Lib Dei to Parliament, the English Home Office had confirmed the “vulnerability criteria” in which LGBTI people would be considered. Vulnerability criteria include “survivors of violence or torture”; Refugees with greater legal or physical protection needs; Refugees with medical needs or disabilities; Children or adolescents at risk; People at risk for various causes such as their sexual orientation or gender identity; Refugees with family ties in resettlement countries. Unfortunately, many people are still too afraid to come out and ask for help because if their sexual or gender identity becomes public, they would be exposed to more violence, so it is essential that more secure systems are developed.

CHECHENYA

At the beginning of April in Chechnya, in the small turbulent republic at the southern border of the Russian Federation repression started against gay men. According to Independent Newspaper Novaya Gazeta, at that time, more than 100 homosexual men were arrested by police and brutalized in secret prisons, and at least three of them were killed and many other remained in prison for a long time. In fear and despair, 75 people had called a support phone line for the LGBTI community in Chechnya. These 52 people claimed to have been victims of recent violence, and another 30 said they had fled from Moscow where they had received assistance from LGBTI activists. This gay persecution represents the repressive regime established in Chechnya. After the collapse of the Soviet Union, a quarter of a century ago, the old empire experienced separatist agitation, terrorism and two extremely bloody wars.

Tens of thousands of people have been killed and more than 5,000 are still missing in the ruined cities. Collective punishment is the distinctive sign of Mr. Kadyrov’s repression, the relatives of those who disdain the authorities are threatened, beaten, detained, expelled or become victims of other acts of violence. These methods were applied to the first rebel suspects but were also spread to the subversives of the regime, religious dissidents, and drunken drivers. The same techniques have been applied to the families of men who seemed to be gay, who were threatened with detention. In this environment of humiliation and immense fear massive groups of Chechens are fleeing from the Russian Federation.

Chechnya is a state in a state, Kadyrov is the only federation leader who actually has security control over its territory. Alongside Russian subsidies, there is a parallel economy based on extortions and bribes. State employees claim to be forced to give away part of their wages. Coercive methods of the regime go along with conservative values. Authorities banned the use of alcohol, applied clothing and “moral behavior” codes for women, and sustained honour killings. Internal tensions increased in 2016 after an economic crisis along with state expropriations that caused a large part of population to live in poverty. Some disturbing reports say that gay men in Chechnya are systematically killed and victims of brutal violence, and so many of these people have asked to leave their country. According to some data, more than 40 LGBTI people are fleeing from Chechnya, fearing being tortured and being killed, but many of the people who remain and seek to obtain a visa do not have much opportunity to reach either the EU or United States. Chechens are currently hiding in remote parts of Russia, desperately hoping to get the documentation that will allow them to get a new life. Although many are so desperate that they run away without documents.

To end the abuse and detention of gay men in Chechnya is as compulsory as to welcome fugitives. The United Nations called out to release all gay detainees in a timely manner and stop abuses, experts are also asking the Russian authorities to strongly condemn these acts of violence and all homophobic statements that lead to hatred. There are also many reports about murders based on perceived or presumed sexual orientation, and this remains a very serious fact. Some of them were presumably executed by their family members, the so-called “honor killings”. Most of the abuses, it was reported, were practiced in a detention centre in an unofficial place near the town of Argun. The arrested men were subjected to physical and verbal abuses, including electric shocks, beatings, insults, and humiliations. They were forced to provide data and contacts of other gay people and threatened to spread information about their sexual orientation within their families and communities – a move that certainly would have major risks against “honour killings” too. That is why it is very important for these people to be resettled as soon as possible and to allow them to escape from violence and persecution, to find an environment where they are allowed to live in peace.

AFRICA

Today, 77 countries around the world are considering homosexuality as a crime, 10 of them still apply the death penalty: Afghanistan, Saudi Arabia, Brunei, United Arab Emirates, Iran, Mauritania (several Northern states have adopted Sharia) Sudan, Somalia, Pakistan and Yemen. In recent years, the situation in Africa has become more turbulent for gay, lesbian, bisexual and transgender people.
In January 2014, Nigeria has proposed some of the most repressive laws on the continent.

kakuma
Kakuma Camp

In February 2014, Uganda had approved a law prohibiting the promotion of homosexuality and making complaints compulsory. Fortunately this law fell for a lawsuit.
In the Dominican Republic of Congo, a bill of imprisonment for homosexuality ranging from three to five years in prison in Congo was to be approved but it was not implemented at the end.
In Liberia, two projects were presented, including one proposing to criminalize the “promotion” of relationships between people of the same sex. Even if homosexuals were not affected by the law, they were nevertheless victims of discrimination, violence and torture.

In South Africa, where freedom of sexual orientation is recognized and gay marriage has been legalized since 2006, homosexuals are still regularly hunted, beaten, or even murdered with impunity. In this country lesbians are still victims of “corrective rape”. To escape these terrible conditions many LGBTI people flee from their countries and many of them ask for resettlement. In Uganda, for example, after the anti-homosexuality law was approved in 2014, a significant number of LGBTI people have faced an increase in public attacks, in an already a dangerous environment for a vulnerable population. While earlier, only a few activists applied for asylum in other countries, the increase in insecurity has forced more and more people to migrate. Even after the anti-gay law had been canceled, many people continued to go beyond the borders, hundreds of them fled to Kenya, precisely because of persistent persecution. Unfortunately, in Kenya too, LGBTI people must face a great deal of discrimination, harassment and violence. These LGBTI people have had to struggle every day to find a job and adequate health care. Unfortunately, there is still little data on the specific needs of persecuted asylum seekers due to their sexual orientation or gender identity, some demographic data and some persecution stories have been collected, 61 of which were cases of survivors of torture suffered because of their sexual orientation or gender identity. In the case of LGBTI asylum seekers, it has been found that they start suffering sexual violence, bullying and persecution during childhood. This type of persecution has a negative impact on their mental health and they haven’t any access to the essential treatments.

In conclusion, one must bear in mind the importance of fighting against discrimination in these countries, of supporting of LGBTI people in their countries of origin, of protecting their psychological health damaged by very high stress factors, continuing fear and discomfort. As noted in research, homosexuals are victims of bullying and violent acts since childhood and these situations persist in adulthood, sometimes they are isolated from groups, the community, and even their family. They are also victims of many more serious episodes, such as family violence and homicide. Some forms social violence derived from stereotypes such as “corrective rape” of lesbian women. In many of these countries, the violence is triggered by hate-inducing religious factors, as in the case of Islam and Sharia, which condemned homosexual people or the first evangelical churches spreading hate under the American influence that continue to gain, especially in the African continent. Fortunately, in the last years Catholics have changed into a more moderate position thanks to Pope Francis due to the opposition by the Catholic Church.

For all these reasons, it is necessary to support shorter resettlement times and more secure and guaranteed reception systems. Every passing day is like an indelible mark in the lives of these people, sometimes particularly difficult to sustain, we can not let them to their destiny.

 

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International Support – Human Rights

Bologna Bruxelles

 

Email:  isp.uganda@hotmail.com

 

Article written by

Tobias Pellicciari

 

Translation by

Cristina Colella

Email: cristina.colella108@gmail.com

PDF: LGBTI MIGRATION: ASYLUM AND INTERNATIONAL PROTECTION TO STOP HATE CRIME INTRODUCTION

 

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