The international response to hate crimes against people because of their sexual orientation or gender identity is hindered by the fact that these forms of discrimination are not well-integrated into the international human rights and anti-discrimination bodies and mechanisms. Indeed, there is no convention or treaty specifically focusing on the rights of LGBT persons. Within the framework of the United Nations, the problem of bias-motivated violence against LGBT persons is only just beginning to gain recognition and has remained largely outside of the framework of the general human rights treaty bodies as well as those special mechanisms that deal with related issues of discrimination and intolerance. Positive exceptions have included the activities of the United Nations Special Rapporteur for Human Rights Defenders, and some aspects of the work of the Human Rights Committee.
The Yogyakarta Principles, developed by human rights experts in November 2006, offer a way forward, reflecting state obligations under international law to address human rights violations based on sexual orientation and gender identity. The Principles include a recommendation that the UN treaty bodies “vigorously integrate these principles into the implementation of their mandates, including … general comments or other interpretive texts on the application of human rights law to persons of diverse sexual orientations and gender identities.” However, the Yogyakarta Principles are a non-binding document.
Nevertheless, at the time of their launch in November 2007, the High Commissioner for Human Rights Louise Arbour issued the following statement:
Just as it would be unthinkable to deny anyone their human rights because of their race, religion or social status, we must also reject any attempt to do so on the basis of sexual orientation or gender identity. The Principles are a timely reminder of these basic tenets. States have a legal obligation to investigate and prosecute all instances of violence and abuse with respect to every person under their jurisdiction. Respect for cultural diversity is insufficient to justify the existence of laws that violate the fundamental right to life, security and privacy by criminalizing harmless private relations between consenting adults.
The Yogyakarta Principles include important provisions related to violence, particularly Principle 5 on the “Right of the Security of the Person,” which reads as follows:
Everyone, regardless of sexual orientation or gender identity, has the right to security of the person and to protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual or group.
a) Take all necessary policing and other measures to prevent and provide protection from all forms of violence and harassment related to sexual orientation and gender identity;
b) Take all necessary legislative measures to impose appropriate criminal penalties for violence, threats of violence, incitement to violence and related harassment, based on the sexual orientation or gender identity of any person or group of persons, in all spheres of life, including the family;
c) Take all necessary legislative, administrative and other measures to ensure that the sexual orientation or gender identity of the victim may not be advanced to justify, excuse or mitigate such violence;
d) Ensure that perpetration of such violence is vigorously investigated, and that, where appropriate evidence is found, those responsible are prosecuted, tried and duly punished, and that victims are provided with appropriate remedies and redress, including compensation;
e) Undertake campaigns of awareness-raising, directed to the general public as well as to actual and potential perpetrators of violence, in order to combat the prejudices that underlie violence related to sexual orientation and gender identity.
Within Europe, a number of regional intergovernmental organizations have addressed the problem of homophobic hate crimes, although this type of violence has been left outside of the official mandates of many European regional anti-discrimination bodies. Thus, challenges remain to apply a more integrated approach to combating discrimination that addresses violence on the basis of sexual orientation along with other forms of violent discrimination.
The OSCE’s Office for Democratic Institutions and Human Rights (ODIHR) has been credited with a number of efforts to address the problem of homophobic violence. The ODIHR regularly reports on homophobic violence in the context of its annual reporting on hate crime in the OSCE region. In the 2006 annual report, the ODIHR listed numerous attacks and government responses, noting that “homophobic and transphobic incidents and crimes targeting LGBT people are believed to be among the most underreported and under-documented.”
The ODIHR has developed a working definition of hate crimes that includes sexual orientation among the grounds of discrimination. The ODIHR also conducts a number of programs that aim to strengthen the response of law enforcement bodies and civil society organizations to hate crimes, including those motivated by homophobia. Nevertheless, the OSCE as a whole has yet to adopt any commitments or ministerial decisions in which discrimination and intolerance—including cases of violence—on the basis of sexual orientation are explicitly mentioned as an area of concern for the organization to address.
The mandate of the Council of Europe’s main anti-discrimination body, the European Commission against Racism and Intolerance (ECRI) does not expressly encompass discrimination on the basis of sexual orientation or gender identity, despite the space that the term “intolerance” creates to include this type of discrimination. Thus, bias-motivated violence against LGBT persons is largely outside of the framework of ECRI’s extensive reporting and recommendations on individual countries, as well as general recommendations.
Another body of the Council of Europe—the Office of the Human Rights Commissioner—has defined LGBT issues, including violence against LGBT persons, as a core priority. Commissioner Thomas Hammarberg has taken up the issue of hate crimes against LGBT persons in his reports and country visits and has criticized political leaders in many countries for failing to rise to the challenge posed by discrimination and harassment based on sexual orientation. In a June 2008 article on hate crimes, the Commissioner highlighted a number of recent cases of homophobic violence, calling them “the tip of the iceberg.” He has recommended that “hate crimes against LGBT persons should be seen as serious crimes.”
As concerns the European Union’s Fundamental Rights Agency (FRA), the problem of homophobic hate crimes is not expressly mentioned in the agency’s mandate. The regulation establishing the FRA states that: “the work of the Agency should continue to cover the phenomena of racism, xenophobia and antisemitism, the protection of rights of persons belonging to minorities, as well as gender equality, as essential elements for the protection of fundamental rights.” The FRA’s regular activities related to hate crimes have to date focused on “racist violence and crime,” while addressing homophobic hate crime only through a recent study of discrimination on the grounds of sexual orientation.
In June 2008, the FRA released a study on Homophobia and Discrimination on Grounds of Sexual Orientation in the EU Member States. The study examined, among other things, the legal basis for European Union States to address bias based on sexual orientation as an aggravating circumstance in the commission of violent crimes. A second report detailing social aspects of the problem is planned for release in autumn 2008.