Difference, stigma, shame, harm: the call for a new approach to gay asylum seekers

Google’s Winter Olympics Doodle captioned with a quote from the Olympic Charter.

Few Britons would have watched on in support of the vigilante groups filmed in the Channel 4 documentary, Hunted, on Wednesday. Seeing the baiting, beating and the humiliation of gay people and gay right supporters, it’s no wonder thousands around the world seek asylum in more accepting countries. Yet such prejudice and disrespect isn’t isolated to overtly homophobic nations, it even exists in the very places refugees seek help.

Over the weekend, the Observer revealed the “shockingly degrading” interrogation on those seeking asylum in the UK based on their sexuality. One individual, Sharon from Uganda, who was questioned by the Home Office, stated, “I was asked by a male interviewer how I, as a Christian, could justify my sexuality with God. He asked me how could I know I was a lesbian if I had never slept with a man.” Other such intense falsification techniques are apparently common and some in desperation have photographed or filmed themselves having sex as further evidence.

Due to a recent leak disclosing questions asked of gay asylum seekers, some are now calling for a more humane solution. S Chelvan, a barrister involved in the rights of LGBTI (lesbian, gay, bisexual, transgender and intersex) refugees, has produced the DSSH (difference, stigma, shame, harm) model which he believes is “a more accurate way to confirm a person’s true sexuality”. In October 2013, the UN chose to replace the UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity (2008) with Guidelines on International Protection No. 9 (2013) which had within it Chelvan’s model.¹ Paragraph 62 states,

Ascertaining the applicant’s LGBTI background is essentially an issue of credibility. The assessment of
credibility in such cases needs to be undertaken in an individualized and sensitive way. Exploring elements
around the applicant’s personal perceptions, feelings and experiences of difference, stigma and shame are
usually more likely to help the decision maker ascertain the applicant’s sexual orientation or gender
identity, rather than a focus on sexual practices.²

Chelvan’s address, ‘From silence to safety: Protecting the gay refugee?’, given at the Eleventh Annual Stonewall Lecture detailed the struggle gay asylum seekers experience upon entry into the UK. Under the last Labour government, thousands were refused entry because, it was argued, they should go back home and act more discreetly rather than “flaunting” their sexuality.

Instead of humiliating needy individuals, Chelvan argued for a better system of testing, considering how they felt different growing up, how this produced stigma and shame and how it ultimately led to a fear of harm. “What I say the new test should be: Get rid of discretion and have a two-stage test. Is the appellant gay or perceived to be gay? and are openly gay or lesbian people at real risk of persecution?”

UN Free & Equal Campaign Poster

When gender and sexually diverse individuals face imprisonment or even the death penalty there is a need to tackle the “systematic homophobia” that exists in the UK’s asylum system. It remains to be seen whether Guideline of International Protection No. 9.62 will be effective, but if such degrading and frivolous questioning continues today, then we should be slow to judge the state-sanctioned homophobia that is driving gay refugees to our borders. Indeed, such decisions that have the power to preserve life should not be made on whether or not someone has joined a Gay Pride march or, as in one case, “looks like a lesbian”.

References

¹ UN High Commissioner for Refugees (UNHCR), Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, 23 October 2012, HCR/GIP/12/01, available at: http://www.refworld.org/docid/50348afc2.html [accessed 9 February 2014]
² Ibid. p. 15.

Willful Blindness of the British to International Law?

And cue the protest and demands for leniency for a murderer. Out of the zealous, bordering on aggressive, national militarism that has grown to play a prominent role in British politics is spawned articles and petitions calling for leniency on, or even the immediate release of, the anonymous ‘Marine A’ of the British Army who faces a life sentence for firing a 9mm bullet at close range into the chest of an injured, unarmed man, his identity still unknown to the British authorities.

The Telegraph leads the media campaign for leniency, with even that bastion of lefty sentimentality, The Guardian, dedicating column inches in defence of a convicted murderer. Trawling the cesspool of social media, there is a worrying trend of opinion that this is acceptable behaviour. The cognitive dissonance, or even marginal racism, of the trend is noteworthy – one could imagine the bloodthirsty outrage should the roles of marine and captive had been reversed – and the ignorance of international criminal law is compelling.

At the core of the calls for leniency is often found the justification that the ravages of war mitigate any actions soldiers may take, but this view rests on the false assumption that ‘Marine A’ was judged on domestic degrees of murder. ‘Marine A’ was instead judged against universally accepted minimum standards of armed conflict.

It is no new insipid, left wing, neo-liberal nonsense that soldiers are to be forbidden from killing participants of armed conflict who are ‘hors de combat’ – that’s those who are no longer playing a part in hostilities such as the injured or the captured. It is a long established principle of war, most recently reiterated in the 1977 Protocol I Amendment to the Geneva Conventions of 1949.

The evidence, a video and sound recording of the horrific incident, is undeniable and establishes not only that ‘Marine A’ broke the law but knew that he was doing so. After firing the fatal shot, ‘Marine A’ turned to his brothers in arms and incriminatingly made clear to them that knowledge of this murder wasn’t to “go anywhere fellas. I just broke the Geneva Convention.”

Yet, not only does ‘Marine A’ deserve his sentence – it would have been licentious if any lesser sentence been given – but there is a good case for concluding that justice had not been fully dispensed. The court marshal board delivered a decision which will seem incredulous to any proper court even moderately acquainted with international criminal law. Marines ‘B’ and ‘C’ were acquitted, free to return to active service.

‘Marine C’ walks free despite his initial suggestion to shoot the victim in the head and his expression of disappointment that ‘Marine A’ got to take the fatal shot and not he. In light of these actions, the British army disciplinary system sees it fit to give this man back his gun. Likewise to ‘Marine B’ who stood by and offered up no protest to this war crime and failed to report it. Not only did the board display a disconcerting willingness to allow the rearming of men involved in such an incident and not to convict them for such behaviour but also, worryingly for the position they hold, a deficiency in their awareness of international criminal law.

The Trial Chamber for the International Criminal Tribunal for the former Yugoslavia has laid out its view of the law of armed conflict in Tadić; that ‘aiding and abetting includes all acts of assistance by words or acts that lend encouragement or support, as long as the requisite intent is present.’ Further, the Vasiljević trial chamber asserted that an individual incurs responsibility for the crime if ‘the accused carried out an act which consisted of practical assistance, encouragement or moral support to the principal offender of the crime.’ Other trial chambers, such as those in Furundzija and Kunarać, Kovać and Vuković support this stance.

The International Criminal Court has strengthened the law in this area by reiterating in the Taylor Judgement that an accused who participates in a ‘common plan, design or purpose’, takes part in a Joint Criminal Enterprise and is responsible for the crime even if they did not carry out the principle criminal act. The Chamber reinforced the notion that criminal responsibility through participation in a Joint Criminal Enterprise is established customary international law. Drawing on previous jurisprudence, the Chamber noted that ‘[t]he plan need not have been previously arranged or formulated, but may materialize contemporaneously’, that ‘it is not required that the Accused’s participation in the common plan is necessary or substantial, but must have made at least a “significant” contribution to the common purpose’ and that that Includes prompting another to act in a particular way.

How the words and actions of ‘Marine C’ can be seen as anything other than fulfilling the elements of a war crime is bewildering yet it is unsurprising that he walks free. The UK justice system is meant to compliment the work of the International Criminal Court and, since the signing of the Rome Statute, the former is obliged to uphold the law as practiced by the latter. And yet in a week that has cast light on the British Army’s killings of unarmed civilians in Northern Ireland we are reminded that the case of ‘Marine A’ is not isolated. The British Army commits war crimes and, looking at the evidence, the price criminal soldiers pay is small, if not nonexistent.

After an Iraqi detainee died after ‘interrogation’ from 93 injuries, Donald Payne was charged with manslaughter and inhumane treatment and found guilty of the latter, attracting the sentence of a mere 12 months in prison. Six other soldiers were acquitted due to a lack of evidence resulting from, as the judge put it, a ‘closing of ranks’.

Praise comes easy on these British Isles for those fighting wars in our name. Worryingly, however, such forthcoming praise, a manifestation of the national militarist epidemic, seems to cloud judgement on those who commit the most heinous crimes. Uncritical attitudes allow crimes to be brushed over, institutionally covered up without question, and for those who should have been found guilty of murder to return to active service. The murder of an unarmed Afghan is just as abhorrent as the murder of a British civilian and the fog of war is not a mitigating factor.

Benjamin F. Owen

http://www.telegraph.co.uk/news/uknews/defence/10439494/Petition-leniency-for-Marine-A.html

http://www.theguardian.com/uk-news/2013/nov/11/marine-a-sentence-wider-social-context-afghan-murder

http://www.independent.co.uk/news/uk/crime/royal-marine-found-guilty-of-murder-for-battlefield-execution-of-injured-taliban-fighter-8930011.html

http://www.hrw.org/reports/2004/ij/icty/6.htm

http://www.sc-sl.org/LinkClick.aspx?fileticket=k%2b03KREEPCQ%3d&tabid=159

http://speakerofthetruth.blogspot.co.uk/2007/03/1_19.html

Photo: LA(Phot) Dave Hillhouse/MOD 

 

Jack Straw – War Criminal? Not by law!

The labelling of New Labour ministers, such as Jack Straw, as war criminals has been a vogue that continues to manifest itself in the opinions of anti-war campaigners, old lefties and any others of the political creed that look back with derision on the government of Tony Blair. Due to the strength of such accusations, such assertions of criminality must be rebutted and exposed as displaying a deficiency in understanding of international law and of what a war criminal actually is.

Straw’s accusers mostly point to the legal basis on which the law was justified by the UK government – the shaky evidence of a WMD programme, the procrustean use of UN resolutions, the UK’s failure to uphold its obligations to the Iraqi population – as a basis for labelling him and his ilk as war criminals.

What Straw’s accusers fail to understand is that these questions of legality so regularly aired pertain to relationships between States and to their obligations and do not apply to individual people. If it were shown that the UK contravened UN resolutions and went to war in Iraq illegally, or if it were shown that the UK failed in its obligations toward the Iraqi people after invasion, it would merely entail that the UK, as a State, would incur responsibility for failing in its obligations. This implies nothing in regards to the criminality of those who form the State’s government.

A war crime, according to the International Committee of the Red Cross and the Statute of the International Criminal Court is a serious violation of international humanitarian law. This includes acts which constitute grave breaches of the Geneva Conventions of 12 August 1949 such as wilful killing, torture, taking hostages, or depriving prisoners of war their rights to a fair trial. Criminal acts may also include intentionally directing attacks against the civilian population which are not taking part in hostilities or against civilian objects which are not military objectives. In accordance with the Rome Statute, one may also be found criminally responsible for ‘intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.’

Barring an as yet unseen extraordinary revelation, Jack Straw certainly did not carry out these acts in person and so any criminal prosecution would rest on his actions qualifying as the other modes of participation as laid out under Article 25 of the Rome Statute. These consist of ordering, soliciting or inducing the commission of such acts, aiding, abetting or otherwise assisting in their commission or in any other way contributing to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Take note, these acts are distinct from ordering, soliciting or inducing a war.

Those who label Straw as a war criminal need to understand what they are accusing the man of. They accuse Straw of, at best, assisting in the manufacture of a war in full knowledge that British soldiers would commit acts such as torture, rape, the taking of hostages, purposely attacking or forcibly transferring civilians, or wreaking wanton destruction of property. At worst, they accuse Straw of soliciting a war with the aim and purpose that such crimes would be committed.

It is clear, once understanding what a war crime actually constitutes, that it would be extremely difficult to prosecute a person such as Straw for such acts. The basis of ‘war criminal’ accusations would have to rest on Jack Straw conspiring to take the UK to war with Iraq for the purposes of committing a war crime, a strong and farfetched accusation indeed.

Briefly, but most importantly, there is still one very important issue that those who subscribe to the UN ideology should consider before labelling Straw a war criminal; that he has never been found guilty of war crimes by a court of law. Straw is yet to be even prosecuted for war crimes and so labelling him a war criminal is incompatible with the international fair trial standards that form an important part of the UN human rights agenda.

 

Benjamin F. Owen

 

http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter44_rule156

http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf