Lawyers, Not Diplomats, are the Key to Decriminalising Homosexuality Worldwide

20/02/2012 22:31 GMT | Updated 21/04/2012 10:12 BST

The recent announcement that Uganda's parliament has resurrected its infamous Anti-Homosexuality Bill and the news last week that a Ugandan cabinet minister ordered a raid a gay rights conference and demanded that one of the organisers was arrested, demonstrates the problem many gay people face worldwide. Despite high level diplomatic efforts to shelve the Bill and more broadly, calls by US Secretary of State Hilary Clinton and UK Prime Minister David Cameron to link aid to LGBTI rights in regions such as Africa, gay people remain criminalised simply for being who they are.

There have been increasing attempts to use diplomacy to tackle this issue. Hilary Clinton's speech in Geneva last December, while pulling no punches, conceded that what she was saying was, culturally, controversial to many of the ambassadors present. At the same time, she asserted a global culture of human rights which trumped national or regional beliefs and attitudes, a standpoint that has been shared by UN Secretary General, Ban Ki Moon, and the UN High Commissioner for Human Rights, Navi Pilay.

This is not new: international human rights law has been used as 'soft' diplomacy at least since the promulgation of the Universal Declaration of Human Rights in 1948. Subsequently binding treaty law, particularly at the regional level with mechanisms for enforcement, such as the new African Court, as well as the European Court of Human Rights and its Inter-American counterpart, has transformed soft diplomacy in this context into something more hard edged, indeed something that is not diplomacy at all.

There are currently over 80 countries that criminalise same sex sexual conduct between consenting adults despite its protection under international human rights mechanisms. For over half the countries in the world that outlaw same sex sexual conduct, their laws stem primarily from the United Kingdom's own colonial past. They are a British legacy; 42 of the 54 members of the Commonwealth criminalise.

Make no mistake: criminalising sexual identity violates human rights while creating an atmosphere where extortion, violence and fear thrive. One Ugandan teenager listened while his entire family were first beaten and then shot by a police-led mob just because they had hidden him.

Another young woman was turned into the police by her father: she was beaten and repeatedly raped; one policeman urinated into her mouth. Many LGBTI people now seek asylum elsewhere, creating obligations on the international community to provide protection against persecution.

Dehumanising laws such as the one before the Ugandan Parliament once again only legitimise this sort of brutality. As Hilary Clinton hinted at, it is not good enough to hide behind the veil of cultural relativism: there can never be any cultural excuse for the sort of treatment described above.

The international community's response has been clear: the UN Human Rights Council's Universal Periodic Review mechanism, for example, has consistently highlighted criminalisation as a violation of international human rights law. But there is no obligation to adopt the Recommendations made during this process and in Africa, following the recent periodic review process, 14 countries received recommendations that they repeal their anti-homosexuality laws. None were accepted.

'Soft' diplomacy has a place, but 'harder' threats to cut aid, for example, can be a double-edged sword. On the one hand, when a court in Malawi sentenced two young men to 14 years imprisonment under that country's sodomy laws, the storm of protest from the international community forced the President to pardon them on humanitarian grounds. Ugandan Presidential adviser, John Nagenda, however, has warned Western governments to refrain from publicly condemning homophobic laws as this would fuel the anti-homosexual and anti-western rhetoric of their proponents. Ghana's President, in response to David Cameron's comments about cutting aid, has stated he will never support decriminalisation.

But we should not lose sight of the activists in this process. There are those who are critical of aid conditionality, but others disagree and welcome interventions by the Global North. One Cameroonian LGBTI human rights defender has recently blogged:

I call on all European and Inter-American States not to give any more Aid to these leaders, until they accept to implement Fundamental Human Rights.

What is clear is that the means and methods of decriminalisation must be owned by those directly affected by such laws.

As with all serious and systemic human rights abuses being perpetrated across the globe, diplomatic pressure will remain a crucial tool in bringing these violations to an end, but other more locally controlled options may also be available to be run in tandem. As the issue is ultimately one of human rights law, it is also ripe for legal challenge. Constitutions should protect all within a jurisdiction: Bills of Rights have equal application to everyone. Consequently, the right to identity protects everyone's right to identity, including those who define themselves as LGBTI. It goes without saying that such a right is taken for granted by the heterosexual community. Most states that criminalise homosexuality are signatories to at least one international human rights treaty. They are therefore in breach of their own treaty obligations as well as their own constitutions.

Almost without exception decriminalisation of consensual same sex sexual conduct between adults has come about through a legal challenge. Even in the UK where Parliament initiated decriminalisation, full equality was only brought about through litigation, ultimately before the European Court of Human Rights. The United States of America only decriminalised as a matter of Federal Constitutional law as recently as 2003. India followed suit in 2009. South Africa trail blazed this issue as one of the first cases under its post-apartheid Constitution. Fiji and Nepal decriminalised through test case litigation.

In general, wherever there has been a legal challenge to criminalisation the offending laws have been overturned. However, this is a long, slow and often expensive process which is fraught with challenges. It also requires brave LGBTI people to bring the case. It therefore puts huge pressure and risks on the local LGBTI community. And when human rights law is so clear on the issue, there is something morally wrong about forcing individuals to fight for their rights through the courts.

Decriminalisation will be brought about through multiple routes, including the diplomatic art of persuasion. It would be better if governments decriminalised of their own volition, but inevitably litigation brought by desperate LGBTI people will force the issue in many countries. Just getting rid of the criminal laws is no silver bullet, but it is the start of a process. There are no rational and objective justifications for retention of criminalisation, but decriminalisation does not mean that a Western liberal notion of gay identity has to be embraced across the Globe. Cultural difference and distinctions ought to be respected but this does require that other notions of sexual identity are equally respected. Ultimately the rule of law on this issue must be upheld one way or another.