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.

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”.


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?

File:Royal Marine from 42 Commando on Patrol in Afghanistan MOD 45153167.jpg

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







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




Jack Straw and the Iraq war, immoral, illegal, or both?

 File:Jack Straw 050519-D-9880W-029.jpg

Whatever your opinion on Britain’s involvement in the Iraq war; that it was immoral, catastrophic and a humanitarian disaster; a price worth paying or the continuation of the imperial designs of global powers or necessary for global security, the question is, was it legal? More specifically, was Jack Straw complicit in an illegal act via the invasion of Iraq or via the UKs conduct during the occupation? This blog is concerned primarily with the legal case; morality is a personal and much more complicated matter that must come down to each person’s conscience.

The United Nations charter is very clear regarding the legality of the threat or use of force in international relations. Without a Security Council resolution it is illegal. The only exception is found in Article 51, the right to self-defence, but an ICJ (International Court of Justice) ruling found that an actual armed attack had to have occurred by one state against another to invoke this clause. There have been attempts to argue that pre-emptive strikes are legal but these are yet to be accepted as part of international law. As Iraq had not actually attacked the UK and that the pre-emptive doctrine is not widely accepted the only course left is via a Security Council resolution. Did the use of force against Iraq have such a resolution? The answer varies depending on one’s point of view as is the case with much in international law. The resolution most looked to is resolution 1441. United Nations Security Council Resolution 1441 offered Iraq under Saddam Hussein “a final opportunity to comply with its disarmament obligations” that had been set out in several previous resolutions. Does this resolution allow for the use of force?

Those who argue that resolution 1441 sanctions the use of force mainly pin their hopes on the interpretation of the phrase “serious consequences”. It is reasonable to argue that, due to the extensive sanction regime that Iraq was under prior to the invasion it is hard to imagine what “serious consequences” could mean other than the use of force. As Jack Straw states, “Everyone knew what ‘serious consequences’ meant — war”. He continues by asserting that “Hard-nosed negotiators from Paris, Moscow, Berlin and Beijing knew full well its military consequences”.

However, the resolution specified the requirement for the Security Council to further deliberate on how to respond after the disarmament inspection team reported back. Paragraph 12 states the Council, “Decides to convene immediately upon receipt of a report [….] in order to consider the situation […]”. The phrase serious consequences appears in the next paragraph and only calls for the Security Council to see any material breach in the context, “that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations”. Therefore, even if “serious consequences” was understood by all to mean military action, resolution 1441 did not authorise it. As Professor Mary Ellen O’Connell argues, “in the event of non-compliance the United States [or the UK] is not automatically authorized to take unilateral military action […]”.

The need for a second resolution is implicit in 1441. This follow up resolution authorising these “serious consequences” never happened. Instead the invasion of Iraq went ahead with all its tragic consequences. All the more tragic if the statement of the Secretary-General is to be believed, that “Perhaps if we had persevered a little longer, Iraq could yet have been disarmed peacefully or – if not – the world could have taken action to solve this problem by a collective decision, endowing it with greater legitimacy, and therefore commanding wider support, than is now the case”.

The next Security Council resolution relating to Iraq was concerned not with invasion but with the occupying forces obligations under international humanitarian law. Resolution 1472 “Requests all parties concerned to strictly abide by their obligations under international law […] including those relating to the essential civilian needs of the people of Iraq […]”. Stating also that, “the Occupying Power has the duty of ensuring the food and medical supplies of the population […]”. As the Secretary-General requested “I hope that all parties will scrupulously observe the requirements of international humanitarian law”. These requirements were not accomplished by the occupying powers, as has often been noted; the invasion was a success, the occupation a disaster. Jack Straw himself accepts that, “the reconstruction programme was a shambles”.

It would seem reasonable by this admission and the harsh realities of occupied Iraq to conclude that the occupying forces did not achieve their international legal obligations regarding civilian care. It would also seem reasonable to conclude that the invasion of Iraq was not sanctioned by the Security Council and was therefore illegal. So it seems that we have two counts of illegal behaviour by the UK Government. As a prominent part of that Government with responsibility for foreign Affairs, and considering Jack Straw himself admitted, “I could have stopped us going to war in Iraq” he must accept some responsibility for these illegal acts. Indeed when facing the Iraq Inquiry Jack Straw stated “I made my choice. I have never backed away from it, and I do not intend to do so, and fully accept the responsibilities which flow from that”.  Finally, the moral case for and against the war, as with many moral questions, is a matter of opinion and personal conscience. Indeed in international as in domestic law morality and legality are not always in sync. However, in this case, in my opinion, they are. The Iraq war was both illegal and immoral.

Michael Stagg



Resolution 1441 (2002) Adopted by the Security Council at its 4644th meeting, on 8 November 2002

Resolution 1472 (2003) Adopted by the Security Council at its 4732nd meeting, on 28 March 2003







What is International Law Anyway?

Russian Leader Welcomes US President at G-20 Summit, St. Petersburg

Thousands dead, millions displaced and not much ground gained for either side. You could be forgiven for thinking I am describing the battle of the Somme, but this is in fact the reality of Syria. Like a tragic saga unfolding, the Americans and the Russians have been thrust into the starring roles, but seem to have two separate scripts to the play.

On August 21st the chemical attack launched in Syrian towns, killed at least 1,000 people and was almost immediately blamed on the Assad government by the US and the UK. However after the attack, the Syrian Army strenuously denied responsibility, blaming it on the opposition rebel forces, with the backing of western powers. Parliament was recalled and we seemed to be hurtling headlong into a weekend of bombing without any regard for Security Council sanctions or International law.

The United Nations is often accused of being inept and useless at preventing or solving conflict in present times. And Syria is the latest glowing example of just why this is. I don’t sit on the fence, my mentality tells me to question how military strikes against Assad could do anything other than adding more chaos to an already anarchic situation.  Breathing a sigh of relief when Parliament voted against military intervention alongside the US, I couldn’t help but also feel frustrated by military action being the ‘politics by other means’ of our generation.

The world is war weary just as they were in the post WWI climate, and the vast majority of people have clearly indicated that they do not want, nor see how strikes can help the already reeling country of Syria.  Barack Obama is a Nobel Peace Prize winner, a Nobel Peace Prize Winner who stated that the US could strike Syria even before the UN weapons report came in. Then following the defeat in parliament of David Cameron, Obama agreed to take it to Congress but admitted again that, strikes would still not be ruled out even if Congress said no! Luckily John Kerry suggested a solution  involving Syria’s chemical weapons being handed over to the International community, and although he dismissed it as an option that ‘would not happen’ – the Russians saw a potential beacon of light in this dark situation. When Obama addressed the nation on Syria, he spoke of American exceptionalism as a good thing, it’s “what makes Americans different, it’s what makes us exceptional”, he declared. With this thought in mind, it can be mentioned that when polls were taken in Egypt, in 2010, a staggering 80 percent of the population believed the US and Israel to be the biggest threats they face. Is the US actually becoming increasingly aggressive rather than exceptional?

Did a sleeping giant wake with the Iraq and Afghanistan interventions, does America now see itself as self-designated policeman of the international community? Take Iraq and the mythical weapons of Mass Destruction that were never found. Or Afghanistan, presumed likely to slide into civil war when international forces leave. At the time of writing, the Taliban has just claimed responsibility for a bomb attack on the US consulate in the country. Is it the mess which is Libya that shows the failing of the UN so well? The Russians believe they were sold out and are determined to not make the same mistake with Syria, with the main objective of the offensive becoming regime change. And who can blame them, it’s happened before. I share in Vladimir Putin’s worry that, “military intervention in internal conflicts in foreign countries has become commonplace for the United States”.

The League of Nations failed because national interests were stronger than a desire for true world peace and equality. It lacked any real credibility especially when the US did not become a signatory. The UN is in real danger of falling down the same wayside. One thing that does seem apparent is the need to modify and strengthen it as a tool of international law. If it can be bypassed and sidestepped at will, to suit the powerful, we have indeed, already lost it. The words peace and equality seem as moribund as ever, diplomacy is another relative limping sadly behind the big guns of our modern times. That there was a chemical attack is not in dispute, but what happens next, is in my view just as important as the choices of whether to bomb or not to bomb Iraq ten years ago…

Russia has advocated peaceful dialogue and diplomacy to be the only way forward on Syria. Speaking with the echo of many countries, citizens and even the Pope behind their statement, they categorically state that they ‘do not protect the Syrian government, but international law’. Anything other than self-defence or a decision taken by the Security Council is not in accordance with international law, and is seen as an ‘act of aggression’. We could break the mould; renew the lack of trust in Western policy towards the Middle East. I guess we have to ask ourselves, what kind of world do we want to live in, and how do we want to achieve peace in these turbulent times?