Protection against violence and discrimination based on sexual orientation and gender identity - Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity (A/75/235) [EN/AR/RU/ZH]

Seventy-seventh session
Agenda item 69 (b) of the provisional agenda
Promotion and protection of human rights: human
rights questions, including alternative approaches for
improving the effective enjoyment of human rights and
fundamental freedoms

Protection against violence and discrimination based on sexual orientation and gender identity

Note by the Secretariat

The Secretary-General has the honour to transmit to the General Assembly the report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, Victor Madrigal-Borloz, submitted in accordance with Human Rights Council resolution 45/10.

Summary

In the present report, the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, Victor Madrigal-Borloz, addresses the call for greater awareness of how gender and sexual orientation and gender identity dynamics operate in the context of armed conflict, and within peacebuilding and peacekeeping. In the report, he aims to provide insight on the application of a comprehensive set of legal resources to foster prevention, participation, protection, relief and sustainable peace for persons, communities and peoples suffering violence and discrimination in war-torn contexts around the world. The Independent Expert seeks to establish a basis for expanding existing policies within the United Nations system to promote compliance by State and non-State actors.

I. Introduction

1. United Nations human rights agencies have gathered significant knowledge on violence and discrimination perpetrated worldwide by State and non-State actors based on actual or perceived sexual orientation and/or gender identity. The Independent Expert seeks to contribute to filling a gap in the evidence base concerning all gendered dimensions of armed conflict, their root causes and their consequences, and to strengthen United Nations strategies to tackle them. The aim of the report is to provide an assessment on conflict dynamics, mechanisms for participation in peacebuilding and political transitions and measures providing access to truth, justice, reparation and non-recurrence: all of these in the light of a comprehensive international law framework for non-discrimination, empowerment, participation and accountability, as well as the just aspiration of a sustainable peace for all.

2. The Independent Expert is indebted to all States, entities, organizations and individuals who are committed to supporting his work and who have so significantly contributed to the present report. Unless otherwise requested for risk-related reasons, the submissions will be published on the web page of the Expert.

3. In the present report, armed conflict is understood in accordance with existing international humanitarian customary and treaty law:

(a) An international armed conflict exists “when one or more States have recourse to armed force against another State, regardless of the reasons or the intensity of this confrontation”, or in armed conflicts in which “peoples are fighting against colonial domination, alien occupation or racist regimes in the exercise of their right to self-determination (wars of national liberation)”;

(b) A non-international armed conflict is defined as “protracted armed confrontations occurring between government armed forces and the forces of one or more armed groups, or between such groups arising on the territory of a State” party to the Conventions, which exist whenever an armed confrontation reaches “a minimum level of intensity and the parties involved in the conflict […] show a minimum of organisation”. In relevant cases, it can also refer to the more restricted definition as enshrined in Additional Protocol II, which supplements common article 3 of the Geneva Conventions.

4. The Independent Expert uses the term gender-diverse to refer to persons whose gender identity is at odds with what is enforced as a norm. The widely used acronym LGBT (lesbian, gay, bisexual and trans) and terms such as queer, questioning and asexual, are all reflections of political and legal identities, and persons affected by violence and discrimination based on sexual orientation and gender identity often self-identify in ways that do not coincide with these. In relation to intersex persons, the Independent Expert follows a consistent policy not to extrapolate data and policy frameworks on LGBT persons to the intersex population without clear evidence and reasoning for supporting that inclusion. In all cases, the Expert endeavours to use inclusive nomenclature; when citing evidence, as a rule, he will nonetheless refer to that used at the source.

5. In the present report, the Independent Expert concludes that it is fundamental to advance in the recognition of all forms of gender-based violence that distinctively affect LGBT and gender-diverse persons during armed conflict, and that exceed the scope and definition of conflict-related sexual violence. The Expert has consistently stated that gender frameworks, and gender-based and intersectional approaches, provide a sharp lens for analysing violence and discrimination based on sexual orientation and gender identity, as “they enable the analysis of multiple asymmetries of power, deriving from the way in which sex is understood within society, including those that fuel violence and discrimination against women in all their diversity”. The Independent Expert concludes that, as in other areas, the implementation of inclusive definitions of gender is indispensable in order to make visible, analyse and address the consequences of conflict-related violence for all persons who depart from hegemonic assumptions related to gender and sexuality.