ETIENNE DESHOULIÈRES:
Hello everyone, thank you very much for coming today to this conference on the theme of criminalisation of homosexuality and crimes against humanity : how can a crime against humanity be characterised when persecution is committed on the basis of laws penalising homosexuality?
I would like to thank all of our partners who have come today, because we have speakers who have come from Uganda, Nigeria, Afghanistan, Cameroon, Senegal, the United States and Germany. I want to thank them very much for coming all the way here.
I would also like to thank the University of Nanterre and our colleagues at the Euclid legal clinic. The purpose of legal clinics is to teach the law by having students carry out legal work in the public interest. And Stop Homophobie has applied this year to be a partner and to work on the issue of criminalisation and its characterisation as a crime against humanity. This is the first time in France that a research program has been created between an NGO, civil society, a university and my law firm, which hosts people from Stop Homophobie who work on the subject.
This conference, I believe, marks an important moment, which I call the reversal of the homosexual question in the international order. There has been a reversal in European countries, in Western thought, particularly thanks to the thinking of Michel Foucault, which has made homosexuals no longer the objects of studies by psychologists and lawyers. They have become the actors, the subjects of their own knowledge, of a production of theories about themselves and their aggressors.
There was this reversal in the human sciences that led to the decriminalisation of homosexuality in most Western countries, but also a subsequent reversal of the homosexual question in legal terms. Until 1981 in the countries of the Council of Europe and 1982 in France, homosexuality was criminalized. However, from the end of the 1990s onwards, there has been a reverse movement towards the criminalisation of transphobia and homophobia. So it is homophobic and transphobic people who have become the focus in law, instead of the LGBT community. I think it is time for the reversal of the homosexual question to take place on the international stage. The question should no longer be whether homosexuals and transgender people should be penalized, should be prosecuted because of their sexual orientation and gender identity, but, on the contrary, whether the people who apply the laws penalizing homosexuality can be prosecuted for the crimes, for the offences, that they commit by prosecuting homosexuals and transgender people on the basis of the laws penalizing homosexuality.
Indeed, there is a whole chain of criminality in the proceedings that are initiated by homosexual persons. First there are the arrests, then the detentions which are very often followed by violence, sometimes even torture. Then, there are the anal tests. Detention conditions are often extremely difficult. These people are usually considered to be at the very bottom of the social ladder when they are detained. And so, all these acts which are committed by these different state actors who implement laws penalising homosexuality, can be apprehended by criminal law. This is the subject of today’s conference.
We are going to start by giving the floor to people who are victims of these acts, who are victims of persecution by political actors, by giving the floor to people from Uganda, Nigeria, Afghanistan and Cameroon to get a range of points of view, a range of testimonies, and situations that are experienced today in the countries where homosexuality is criminalised.
We will then host a second panel, which will look at the question of how to qualify these crimes and offenses committed by state actors, in the procedural chain of criminalisation.
Finally, we will have a third panel which will answer a very practical question: where can we take legal action to prosecute and convict the people and state actors who implement the laws penalising homosexuality?
I would also like to say that, here in France, we are not the initiator of this question of qualification. We are fortunate to have Pepe Onziema in the room who, in the early 2010s, initiated a lawsuit in the United States against Scott Lively with his Ugandan LGBT rights organization. It led to a decision in 2017, which recognised that the acts committed against homosexuals in Uganda were likely to constitute international crimes. It was already a victory, even if the court ultimately stated it lacked jurisdiction because there was not a strong enough link to the American territory. It was a first step in the questioning of the classification of the persecution of homosexuals as a crime against humanity.
At the beginning of 2025, in January 2025, the prosecutor of the International Criminal Court requested that arrest warrants be issued against two state agents in Afghanistan for gender-related persecution of women, girls, and also LGBT people. I would like to take this opportunity to salute Arthemis AKBARY who has worked with people within the International Criminal Court to obtain these requests to issue international arrest warrants.
I now give the floor to Jean-Marc Berthon. Thank you for accepting our invitation. Jean-Marc Berthon is the ambassador for the rights of LGBT people in France.
JEAN-MARC BERTHON:
Thank you, dear Étienne, for allowing me to open this conference.
First of all, I would like to salute your perseverance in good causes. Two years ago, you organized a conference on the decriminalisation of homosexuality. And, at your initiative, the participants signed a tribune stating that criminalisation could be considered as a crime against humanity. Robert Badinter was among the signatories and whose entry into the Pantheon was announced today. This was one of his last public appearances.
A few months ago, you started to organise today’s conference, this time devoted almost entirely to the issue of crimes against humanity. At that time, when you talked about the topic of this conference, the ICC had not yet issued arrest warrants against two Afghan leaders suspected of gender apartheid and persecution against LGBT people. This decision was taken in January, and it has given your question a topicality, but above all credibility, and even international and institutional support. Perseverance is a great quality, and one that will undoubtedly lead to great achievements.
I would like to make two comments. The first one is about the moments that we are living through. It is a paradoxical moment, an ambivalent moment. The ill winds blow very hard on LGBT questions and one could be tempted to lower the head, to keep a low profile, to wait until the end of the storm. I don’t think that’s the right attitude.
On the contrary, we must be offensive, and that is what you have decided with this conference whose question is very provocative. What if we were judging governments that persecute LGBT people, not LGBT people themselves?
You are right to be offensive. We must be. Why? Not only because the attack is the best defense, but also because the international conservative figures, as our President of the Republic says, are more fragile than we think. This movement is in the process of showing its true face, the face of territorial expansion, of trade war, of unfaithfulness to alliances, of rejection of migrants and of all international solidarity, of contempt for nature.
It is the spectacle of force against the rule of law. The image of the international conservative movement is so negative that it emphasizes, by contrast, progressive and liberal ideas. It becomes a real deterrent and we must take advantage of it to push forward our positive agenda. Now is the time to be proactive, now is the time to fight back. In Canada and Mexico, Donald Trump is giving progressives a boost.
The same effect can occur elsewhere. The same effect can occur in Europe. Let us not be afraid to defend our values, to engage ourselves in new battles.
My second comment, and I will end there, concerns the issue of justice. Justice is not at the center of my mandate as an ambassador for LGBT+ rights. My field is the political and diplomatic field, that of dialogue with States to convince them to treat LGBT+ people better. This is about international negotiations to ensure that LGBT+ people and their rights are taken into account. It is the support for civil society actors to help them do their work with the most vulnerable populations.
What the ADUH and other actors like you are doing through the judicial field is complementary. It is equally important to help those unjustly accused win strategic trials in their country with regional courts where they exist. It is equally important, as you are doing today, to think about what actions could be taken before the ICC or before national courts under the principle of universal jurisdiction.
The judicial route is complementary to the political and diplomatic route. Rights are advancing thanks to political power and also thanks to judicial power at the national, the regional and, why not tomorrow, at the global level.
I am delighted to be listening to you. I am quite proud that these thoughts, these exchanges take place in France. Proud of our academics, our lawyers. Of their ability to imagine the future.
And I’m sure that new ideas and directions will come out of your discussions. And thank you for participating.
ÉTIENNE DESHOULIÈRES:
Thank you very much for those words. I would now like to introduce Anne-Savinel Barras, President of Amnesty International France.
Amnesty International has been working for many years to ensure that the rights of LGBT people are respected. Some of our African partners told us that general human rights associations were reluctant to get involved with LGBT people, especially in West Africa. In a way, I understand how difficult it can be for lawyers to get involved with LGBT people. The social context is particularly complex.
So thank you for agreeing to come to this conference specifically on LGBT issues, in your capacity as President of Amnesty International.
ANNE-SAVINEL BARRAS:
Thank you, I am truly honoured to be with you this evening. And with Amnesty International to also put this fight that is yours in the global context of the struggle for human rights everywhere around the world. And that is important, because Amnesty International’s mandate is, of course, to fight for the respect of all human rights, and the issue of LGBTI people is, of course, part of our fight in its own right and even has a special place, and it was important for me to say so.
So, before talking specifically about the problem that concerns you, I will make a link with what the Ambassador has told you. I would still like to talk about the state of our world, and this era, or this new age, in which we are entering.
We have already been entering a new area for a number of years, since we have quite gradually seen the rise of authoritarian practices and regimes, we have seen inequalities grow, we have seen a weakening of the law, international law and in particular international humanitarian law quite dramatically, and this has been going on for several years now. Over the last two years, things have escalated, with armed conflicts flaring up around the world. And through these armed conflicts, we can see the extent to which the law of war itself is being flouted and therefore international humanitarian law as well. It is important for me to tell you this before we go into more detail on the question of international law.
Against this backdrop, the new President of the United States has given the situation an absolutely terrible boost and I agree with you. We are facing very strong, very obvious attacks of the rule of law against institutions, attacks against the separation of powers, and therefore the independence of justice, with some of the key elements of authoritarianism also in their hands, namely control over the information ecosystem, but also control over surveillance like facial recognition. Which means that, tomorrow, every citizen could be recognized in their private life, in their practices, in their activities and so on.
The human values that we have defended for so long are being swept away by these same people with their deeply problematic rhetoric. Rhetoric that ignores the current state of the planet, and of the need to protect it more than ever. A rhetoric that is certainly directed against migrants and refugees. A rhetoric aiming to suppress any dissenting opinion. And finally, a discourse that is profoundly sexist, homophobic and anti-gender. I would even go so far as to say that gender is at the heart of the cultural war that the anti-rights movement wants to lead. It is the rallying cry of leaders who today have authoritarian practices. In other words, the fight is more necessary than ever, and all the more so, since governments react by submitting totally to this anti-law trend, or by imitating it or by partially counterattacking, or by resisting it individually. However, we can also hope collectively. We are therefore facing both insecurity and uncertainty. And so, more than ever, we need to resist, resist the rise of the anti-rights movement.
So we are going to have to work differently on the issue that we’re dealing with. The situation of LGBTI people around the world is that there are twelve countries that still sentence people to the death penalty for homosexuality. These are countries where, today, homosexual persons are arrested and tortured. I am thinking of Tunisia, which is currently drastically increasing its arrests, especially of homosexual men and transgender people.I am also thinking of the United States, where transgender people are now banned from the army and where trans, intersex and non-binary people have had their passports taken away. Of course, I am thinking of Slovakia, which wants to change its Constitution so that it recognizes only two genders. I think of Hungary, which has just banned its pride march, for the first time in thirty years. I am thinking of Afghanistan, where the ideological regime of exclusion of both women and LGBTI people is bringing us into something we had never imagined before.
Alongside all that, there is still some positive news. Indeed, the ICC has issued arrest warrants against two Taliban leaders and we are delighted about that. There is also in Argentina, and this is new, with the courts having recognized that trans people were victims of crimes against humanity during the military dictatorship. It is a victory. It means that we can continue to move forward despite everything that people would have us believe.
So what about international law? It is essential to remember the universality of our rights and therefore that the decriminalisation of homosexuality is a universal right. It is a fundamental fight for human rights. We have some tools : there is the International Criminal Court where we can explore the recognition of certain crimes, notably gender-based persecution.
We, at Amnesty International, support and push for the recognition of the crime of gender-based apartheid. The difference with the persecution we have based on gender is that it addresses the ideological and institutional nature. Apartheid is an institutionalized regime of oppression and domination of a category of people. Having this crime recognized under international law would be a significant step towards bringing to justice the people responsible for apartheid. International law is essential, but it is only as strong as the will of States to enforce it, which is not always enough.
This fight must be led at every level, and it depends on each and every one of us. We must say no to attacks, say no to dehumanizing language, say no to cruelty, say no to dangerous alliances, say no to threats, say no to bullying and sanctions. We must also demand that our governments say no. They must draw the red lines. And if we all fight together, that strength can turn the tide, because it’s not too late.
We have a motto at Amnesty International and I often like to remind people of it. We borrowed it from an ancient Chinese maxim. It says, « it is better to light a candle than to curse the darkness« . That is the symbol of Amnesty International, the famous little candle.
All of us in this room tonight are candles. These candles must be lit, and we must fight against the darkness into which he would like to plunge us. We must reject it, and so, in addition to international law, we also need the strength of all of us. Thank you.
ÉTIENNE DESHOULIÈRES:
Thank you very much for these words of hope, so we are a candle today. I hope that the interventions will be in this straight line to open a possibility of acting against the abuses that LGBT people go through.
I am calling on stage people from Uganda, Cameroon, Nigeria and Afghanistan to come and speak.
Good evening Artemis, thank you for coming, I am very pleased to have you with us. I met Artemis in November during an LGBTQI+ conference. We talked together about organizing a conference on this topic – the criminalisation of homosexuality, a crime against humanity? – Artemis, you have the floor.
ARTEMIS AKBARY:
Good evening everyone, thank you very much for doing this. It is very important to talk about this, but first I want to tell you, while you are here in Paris, in this very beautiful city, and in this great university, there are millions of people in many countries, including Afghanistan, who are living in a very difficult situation.
I want to talk particularly about Afghanistan because more than half of the Afghan population is sentenced to life imprisonment because women cannot go to school, they cannot go to work, they cannot work.
They can’t even leave their homes without their family members, and if they go out without a male member of their family, if they study, if they work, they can be subjected to sexual violence, rape, torture and even extrajudicial executions in Afghanistan. And there are many documented cases of persecution of women and girls in Afghanistan.
I want you to imagine that, in this terrible situation, you are a queer person in Afghanistan, you are lesbian, bisexual, transgender or homosexual. The level of discrimination and violence will increase dramatically in Afghanistan as a queer. As a queer person, I want to share some stories with you, but these are so sensitive that it can be very traumatic, because I’m going to talk about sexual violence, torture, and extrajudicial execution.
Sofia was a 25-year-old woman in Afghanistan who was arrested and taken to a secret location where six soldiers and the commander sexually assaulted her many times.
There is another trans person, someone incredible, who has just turned 20 and is now a refugee in Sweden. We, in our organization, with the help of our partner organizations, tried to help him come to Sweden because he was persecuted in Afghanistan. And the day he was at the airport, he was stopped in the airport Talmud and they asked him: Are you a boy or a girl? And they took him to another room. They searched his body. He was raped in that room.
He is in Sweden now, but he tried to commit suicide several times and it was because of all the trauma, all the anxiety spikes from what happened at the airport.
And there is another person I know personally, her name is Massy, she was arrested at a Taliban checkpoint in Afghanistan. They brutally grabbed her hair. She had really long and beautiful black hair, she was beaten, and publicly humiliated and imprisoned.
And unfortunately, since the beginning of the fall of Afghanistan, many LGBTQ people have been publicly flogged every week. There are many ads on the official website of the Supreme Court of the Taliban.
For example, two or three people were publicly flogged in front of people because of homosexuality in Afghanistan.And last year, in 2024, we released a report that shows how we talk about the use of sexual violence as a tool and weapon to fight LGBTQI+ people in Afghanistan.
And all these atrocities are a crime against humanity, from my point of view. And many women and girls in Afghanistan, LGBTQ people have called on the International Criminal Court to do something to hold the Taliban accountable for all of these atrocities they committed. And I am very happy that finally, in January 2025, for the first time in the history of the International Criminal Court, they said they wanted to ask for arrest warrants for the persecution of women and LGBTIQ people.
But these crimes do not only occur in Afghanistan. There are situations of people persecuted in Iraq, Syria, Iran, even in Ukraine, it is the same thing. LGBTQI+ people are victims of conflict-related sexual violence, for example, and in Ukraine there are many documented reports on how Russian soldiers use sexual violence against LGBTQI+ people. In Iraq, Iran or Syria, we have the same situation. We can see that LGBTQI+ people can be persecuted not only by states, but also by non-state actors. For example in the case of Iraq, Syria and Afghanistan, armed groups like the Taliban or ISIS in Syria and Iraq have targeted LGBTI+ people. We’ve seen that in Iraq. There are videos that you can see on the Internet even now. This is how they perform in front of people. And from my point of view, we need justice and accountability for that.
Because all these criminals must be held accountable for the persecution of LGBT people. And unfortunately, international humanitarian law does not specifically and explicitly prohibit persecution based on gender identity and sexual orientation. And since the creation of the UN, the UN Security Council has never issued a resolution for LGBT people. We only had three sessions of the Security Council: two informal sessions and a formal session on LGBTQI+, but none of them ended up in a resolution, which is unfortunately frustrating.
I remember that when I spoke to the Security Council in 2023, the Russian ambassador said that security should not talk about these issues at the Security Council. But from my perspective, the Security Council is responsible for protecting LGBTQI+ in times of conflict.
In conclusion, I want to be clear: what is happening in Afghanistan and other countries is a crime against humanity and our lives, our bodies, our identities deserve protection and recognition.
Thank you very much.
ÉTIENNE DESHOULIÈRES:
Now, we will have the testimony from Cameroon by David Makanda, executive director of Alternative Cameroon, who has a very special story to tell for that country.
DAVID MAKANDA:
In Cameroon, the criminalisation of homosexuality is rooted in historical, cultural and religious factors. Cameroonian law inherited from the French and German colonization concerns repressive laws dating back to colonial times, Article 347-1 of the Criminal Code which criminalizes same-sex relationships or the 1983 law on cybercrime that punishes digital exchanges of a sexual nature between people of the same sex.
Cameroonian law punishes homosexuals with a sentence of 5 to 6 years imprisonment. Arrests are often arbitrary, based on allegations or rumours, and trials lack transparency. Hence 1,870 cases of violence were recorded by Cameroonian organizations in 2023.
In view of this situation, the organization Alternative Cameroon, which is an LGBT advocacy organization created in 2004 and operating in Cameroon for the protection of sexual minorities, was the victim of violences on the evening of September 30 when the prosecutor and some police officers with two or three people with Interpol badges, erupted in the premises of Alternative Cameroon. Thirteen people were sent to the police station, and among these thirteen people, four of them were taken to the central prison and were subjected to anal tests to “prove their homosexuality”.
Given this situation, the majority of LGBT organizations and defenders are regularly subjected to intimidation, violence and arbitrary arrests by the authorities.
It is, therefore, necessary to work together to improve the protection and safety of LGBT persons and defenders, to undertake an effective advocacy for the absolute decriminalisation of homosexuality. Thank you.
ÉTIENNE DESHOULIÈRES:
Thank you, David, for that word on the situation in Cameroon. We will now have a testimony from Nigeria. In Nigeria, there is a kind of double criminalisation of homosexuality. There are federal laws that criminalize homosexuality but there are also local rules which apply sharia and in some of the States in which sharia is applied, the death penalty can be applied against LGBT people.
We now welcome Grace Isong Akpan from Initiative for Gender Equality and Sexual Reproductive Health. Grace, thank you for coming all the way from Nigeria.
GRACE ISONG AKPAN:
Good evening to all. Greetings from Nigeria, where I am the Executive Director of the Initiative for Gender Equality and Sexual Reproductive Health. This is a youth-led feminist organization dedicated to defending the dignity, health and rights of sexual and gender minorities that have been criminalized and dehumanized for too long.
A crime against humanity is more than just a sentence. For LGBTI people in Nigeria, criminalisation is a daily experience that deprives us of our humanity, restricts our movements, our expression, our relationships, our access to health care, our ability to act economically and our right to exist.
In 2014, Nigeria enacted the Same Sex Marriage Prohibition Act, SSMPA, which goes beyond the prohibition of same-sex unions. It criminalizes any form of association, support or advocacy for LGBTI rights, with penalties of up to 14 years in prison. In northern Nigeria, they face the death penalty.
This law is widely used by police militias and even neighbours to harass, blackmail, arrest and assault LGBTQIA individuals and organizations. I will share some documented examples of violations after this has happened.
In July 2022, sixty young LGBTI organized persons were arrested at a private party in Headband, Delta State, falsely accused of attending a gay wedding. They have been detained, parodied and humiliated in public, violating their privacy, dignity and right to freedom of association.
In August 2003, two transgender women were arrested in Lagos and subjected to forced anal examinations, a practice condemned as a form of torture by the UN. No one has been held responsible for this act.
In a study conducted by the Equal Rights Initiative in 2024. More than 73% of LGBT Nigerians have reported experiencing verbal, emotional, physical and sexual violence because of their identity and more than 90% did not report it to the authorities for fear of being arrested.
In 2024, in September, organizations in Nigeria were clapped down due to the SAMOA agreement signed by the European Union and OCP countries, including Nigeria. It included provisions for the protection of human rights, democratic principles and gender equality in line with the UN’s sustainable development goals.
But here is the contradiction. How can a state like Nigeria commit to respecting international treaties? Can it continue to prosecute its own citizens on the basis of sexual orientation and gender identity? How can we talk about partnership and progress when our communities are excluded from education, health care, employment, justice simply because of what they are?
The Nigerian government has claimed that the SAMOA agreement undermines its cultural values, but it does not recognize that there is no culture in the world where violence is present. Culture should not be used as a weapon to justify criminalisation. Sovereignty should not be used to cover up systematic oppression.
Our organization has tried to make sure that we don’t remain silent. We document these violations, support survivors, create economic opportunities, advocate nationally and internationally, and build safe networks. But we cannot fight unfair laws. We need urgent structural change.
Let me conclude by saying that we are not seeking special rights. We demand only equal rights, the right to live, the right to love, the right to learn, the right to work, the right to thrive free from violence, fear and persecution. Criminalisation is violence. State-sponsored discrimination is a crime against humanity.
Decriminalisation is not a debate : it’s a requirement. For us in Nigeria, we are not victims, we are just survivors. We are organizers, we are healers and we are builders of justice. Thank you.
ÉTIENNE DESHOULIÈRES:
Thank you very much, Grace, for the thought on the criminalisation of homosexuality. We now welcome people from Uganda. You probably know that in Uganda, the situation has been terrible over the past year, but especially in 2023.
Since the new law, homosexual relations are punishable by life imprisonment and even the death penalty and the prosecution and persecution of LGBT people seem to have increased dramatically, as a recent report shows.
We have a number of survivors of this state persecution who have agreed to come to France for our conference and testify about the situation of persecution in Uganda.
ANONYMOUS 1:
Hello everyone, my name is xxx and I’m from Uganda.
I’m going to testify. But I’d like my colleague to start. Then I’ll summarize.
ANONYMOUS 2:
Hello, I’m trying to learn a few French words: « I am called xxx » (in French). And I am a transgender man from Uganda. I was raised by a single mom who was not okay with the way I looked, because I grew up as a boy, so she did not want to lose a beautiful daughter because she told me you’re too beautiful to be a boy. She sent me to some family. Once I got there, I found an uncle who started abusing me sexually.
When I tried to talk to them, they told me “that was the reason your mother sent you here. She wanted you to be a girl. So we abuse you sexually because we want you to be a girl”. And I ended up being a parent at age 12 years old. I also ended up being HIV positive at 12 years, so when I tried to fight them off, they chased me away.
I became a street kid at that age, but never gave up. I raised my child on my own. So I grew up with a passion for helping children.
But in Uganda, it’s illegal: when you’re LGBT, you’re not supposed to own anything. You’re not supposed to be a parent, you’re not supposed to be human. You’re not supposed to be. I don’t know how to explain it. So, when the law was passed, the anti-homosexual bill, everything started moving around me, everything that I was doing at the customer organization of charity helping children of sex workers and single mothers and rescuing moms. So I found someone who could fund me, but when that person took me in, they also sent me back to school because I wasn’t studying much. But when the bill came out, the lady said, “I can’t deal with a person who’s like that. You’re crazy. Who are you? What is your name? If someone sees you, how can they take you?”
This person ended up chasing me, away from the kids. Even the kids ended up back in the street. But it all happened because of who I was. But in some way, we have to be human, because I am a person. I don’t work alone, I have kids behind me that I was taking care of. But because of what I am, these kids ended up in the street.
So in the government of Uganda, I don’t think we have the law. I think we have people who sit down and say that you have to put this subject on the table. That’s how the law in Uganda is. We have caricatures, we don’t have laws.
Even when I had my national identity, they were saying that people like us are not supposed to get national identity cards. And instead of dealing with people like us, at least they could give us good IDs.
Instead of dealing with a transgender person, they deal with people who are raping people, so in Uganda things are not easy. Many transgender people are homeless. They don’t have a job. They’re not educated, as they say. I’m trying to educate myself.
You can’t do anything in Uganda when you’re LGBT. Because even now I’m fighting with some people that wanted to take away my daughter. So I’m still in these things.
I really appreciate Étienne, the people they work with, because thanks to them some things are changing here in Uganda, but I still need more help from you. I know, I have the chance to come here. In the name of Jesus, I will change something in Uganda. Amen. Thank you very much. Thank you.
ANONYMOUS 1:
Anonymous 2, it was really, really, really, really strong. It made me want to cry, but let me be a strong and sweet lady here anyway.
Last year, towards the end of 2013, my family found out I was gay by my cousin who went through my phone because we were working on a certain project together. He didn’t like it because I was his boss and he had some malice. So when he saw my phone, he took screenshots of everything.
So when it happened, my family turned against me and they took away all the inheritance I had from my late father. They made sure to be in contact with government agencies and I was not able to get any positions in a public entity. So in another way, they had to freeze my earnings and everything. I couldn’t have any job opportunities in my country.
So I had to run away for a while when they also kept putting security guards to look for me. And they wanted to take me to some kind of military prison where they thought they were going to beat me to put some sense into my head, as they claim. I have so much audio where they thought that it’s a devil. In my culture, they feel like it’s a devil coming to you, to disorganise your head.
In Uganda, it’s so common, because as gay people in Uganda, as LGBTQ+ people in Uganda, people have no right to any employment. Once they have identified you, you are fired immediately.
And with the law that came into effect in 2023, things got worse. That’s something that we need, as a country, to come through and make sure that even LGBTQ+ people and more are also human. They also need a right to employment and they have the right to all labour rights like any other person. I will also speak from my perspective.
In addition, LGBTQ+ people are beaten to death and the police have not even given any help or attention. They won’t even come to help you. They’ll just let the person be there. And it’s only the LGBTQ+ organizations that are still getting away with our health support and everything, and also providing shelter for these people. So this has to change in the country as well.
Another thing is, in 2023, the bill led to a lot of housing inequality, where LGBTQ+ people are not allowed to get housing in any property in Uganda. Once you are identified, you are evicted from the premises.
It’s also something that makes people homeless and wandering. And then, there is also health inequity. There are so many health services that LGBTQ+ people cannot get, for example: when they introduced HIV vaccines, gay men did not have the chance to receive them. They said that these vaccines are only for women. So they left homosexuals exposed to diseases that can cause death.
So with everything that’s going on in Uganda, we think there is a need for change. And that’s why we thank organizations like SMUG who have always been there for us, to defend our rights, to defend our interests and to make sure that we are in order in Uganda. Thank you so much.
ÉTIENNE DESHOULIÈRES:
Thank you very much. The situation of LGBT people is terrible and could be described as a crime and perhaps, in some countries and under certain circumstances, a crime against humanity. Thank you very much for your testimony.
I would like now to call Antoine Idier, who will speak in French, to talk about the persecutions that took place in France after the Vichy law 1942, which established a difference in sexual majority between homosexuals and heterosexuals. This law was then applied by various administrations until homosexuality was decriminalised in 1982.
Antoine Idier is a senior lecturer at Science Po Saint Germain and he is a researcher dealing specifically with these issues.
ANTOINE IDIER:
Good evening, everyone. Many thanks to Étienne Deshoulières and to the organizers of this conference for their kind invitation. It is a privilege to take part in these discussions and to listen to such powerful testimonies.
I am a lecturer at Sciences Po Saint-Germain-en-Laye and have recently published Réprimer et réparer, released by Textuel. This book traces the history of the repression of homosexuality in France and also addresses the current debates surrounding a reparations law—a law that, in my view, suffers from significant shortcomings and limitations. In that respect, tonight’s discussions are particularly relevant, as the use of international law and various legal instruments offers alternative pathways for redress.
I was asked to speak about the repression of homosexuality in France between 1942 and 1982. However, I would like to broaden that perspective. When we discuss the criminal repression of homosexuality in France, we typically focus on this 1942–1982 timeframe. But in my opinion, this narrow framing is a mistake—a mistake, notably, repeated in the reparations bill currently under debate in the French Parliament. Highlighting this error invites us to rethink what the repression of homosexuality has truly entailed in France and, more broadly, raises questions relevant to many other countries. Repression, both in France and elsewhere, has taken many different forms.
To fully understand this repression, we must go beyond the legal texts. It is essential to examine not only what is explicitly written in the law, but also institutional and judicial practices. Judges have applied general provisions of the penal code that do not specifically mention homosexuality but have been used to target homosexual behaviour. Police forces, too, have engaged in autonomous repression, often independently of the justice system—harassing LGBTQI+ individuals even in the absence of laws explicitly criminalizing homosexuality. Repressive practices extended beyond judges and police to include broader public institutions.
Although the 1942–1982 period is often emphasized in France, and not without reason, we must be cautious not to limit our focus to it. During these four decades, two articles of the penal code explicitly targeted homosexuality. First, a 1942 law—repealed only in 1982 after François Mitterrand’s election—set a higher age of sexual consent for homosexual relations. While individuals aged 13 or older could legally consent to heterosexual relations, the age of consent for homosexual acts was raised to 21. Anyone under 21 engaged in a homosexual relationship risked prosecution, and both partners could be convicted. Over 10,000 people were convicted under this law between 1942 and 1982—a law first implemented under the Vichy regime and deliberately retained in 1945 when republican legality was restored.
A second penal code article, in force from 1960 to 1980, increased penalties for public indecency when the acts involved homosexual behaviour—described in the law as « acts against nature. » Though the offence of public indecency dates back to the early 19th century, this specific provision allowed for heightened repression of homosexual acts in public spaces. It was also used against sex workers and others whose behaviour was deemed « offensive. »
However, we must not limit our understanding of repression to these two articles, or even to the 1940–1982 period. Homosexuality had already been prosecuted earlier through various penal provisions: public indecency, which has existed in the code since the 19th century; offences against public morality, which were used to censor activist publications like the Arcadie magazine in the 1950s; and « corruption of minors, » which criminalized certain sexual relations, particularly as the age of majority was then 21.
Additionally, administrative measures—often overlooked—played a role. The Paris police imposed fines on individuals labelled « transvestites, » a practice that persisted into the 1960s and 1970s. More broadly, one could speak of systemic police harassment. In the 1920s and 1930s, the police also employed internment, deportation, and expulsion measures against homosexual foreigners. They often viewed the law as inadequate and actively sought other tools to suppress homosexuality. For example, a 1907 Paris ordinance regulating carnival costumes was misused to target so-called « transvestites »—what we would now recognize as transgender individuals—whose attire was deemed inconsistent with their assigned gender at birth.
All of this underscores a key point: homosexuality was repressed through a regime of invisibility. French law long remained silent, not out of ignorance, but from a belief that explicitly legislating against homosexuality would grant it too much visibility and, in the eyes of lawmakers and jurists, promote homosexual behaviour. Thus, the repression was covert and deliberately obscured.
This invisibility has been tragically effective. The continued focus on the 1942–1982 period is itself a reflection of homophobic reasoning—it reinforces the narrative that repression was exceptional and confined, when in fact it was pervasive and ongoing. To restrict our understanding to that period is to participate, unwittingly, in the erasure of a broader history of repression.
We must also consider the geography of repression. As the presentation on Cameroon reminded us, today’s France was once a colonial empire, imposing repressive laws across its territories. In my book, I examine the case of Tunisia, where Article 230 of the penal code—still in force today—was introduced under French colonial rule in 1913. Thus, homosexuality was criminalized in Tunisia even before explicit repression existed in France itself. Moreover, colonial law was often more repressive than metropolitan law. In the colonies, administrative measures were deployed that had no equivalent in France. These historical realities raise critical questions for current debates on reparations: who are the rightful recipients of such reparations? Can they be imagined on a global scale?
Finally, these are not exclusively French issues. When we examine reparation efforts in other countries, we find similar patterns and challenges. In the United Kingdom, no fewer than four separate laws were required to establish a somewhat effective compensation system. Germany also had to implement multiple corrective measures. In Canada, many historians and sociologists pushed back in 2019 against official commemorations of the 50th anniversary of the supposed « partial decriminalization » of homosexuality in 1969. They argued that no real decriminalization had occurred, since repression continued under other legal forms and police actions—paralleling the French experience.
Thank you for your attention.
ÉTIENNE DESHOULIÈRES:
Thank you very much, Antoine, for your intervention which shows us that decriminalisation is a step towards the recognition of rights, but that the fight continues well beyond criminalisation, because chains of discrimination are anchored in the heart of the administration. Before we started thinking about decriminalisation of homosexuality, with several NGOs that are present here, we have initiated in France 200 lawsuits on the grounds of discrimination, violence and homophobic hate speech. It shows that, when repressive patterns and patterns of discrimination are anchored within a State, they can be found up to 40 years later, with persistent patterns of discrimination against LGBT people in the administration, for example.
This was the last intervention of this first panel, which concerned the state of discriminations related to the criminalisation of homosexuality.
Before the second panel, we have a question and answer session. You can ask questions to our speaker, Antoine Idier and to all speakers in the first panel.
QUESTION:
My question is the following: I would like to know whether you have any data concerning homosexuality in the overseas territories—the Antilles, Réunion, and so on ? It’s true that, often when the topic of homosexuality comes up in France, we limit ourselves to the question of bars in Paris, since, indeed, they have served as spaces of visibility. But it’s also true that in those territories that were colonized and later made “départments”, we have experienced rather particular situations. So, there you have it: we would really like to know if you have any information, especially since I myself am originally from these overseas regions.
ANTOINE IDIER:
Thank you very much for the question. I am afraid that my answer is a little disappointing, because in fact neither I nor my various colleagues working on these issues have any information about the overseas territories. And it is a fact, you said it: we know better the repression of homosexuality in Paris. We are beginning to know it in other metropolitan cities and to discover that there has been a fairly extensive repression in different parts of the country. In my book, I looked at several cities: Dijon, Nice, Brest, etc. And we see how much there is a story throughout the territory. But in fact, at that moment, to my knowledge, we do not know anything about territories that are not metropolitan territories, and this is certainly a project that must be launched.
QUESTION OF PR. BENJAMIN MORON-PUECH:
Good evening, thank you very much for your very stimulating intervention. I would like to ask a question from one colleague to another, coming from another field than yours. What is the historiography on this French criminalisation of homosexuality? If I have understood correctly, you are opening the field post colonisation, how can you explain the historiography on the question?
ANTOINE IDIER:
On the colonial question specifically?
BENJAMIN MORON-PUECH:
On the criminalisation of homosexuality in France, where are we? What remains to be done?
ANTOINE IDIER:
We have a number of things. There are several projects that have been launched. There is one project going on from 1942 to 1982, since we know that 10,000 people have been convicted on the issue of the specific age of sexual consent. On the public indecency, we have estimations that are only projections, it was Régis Schlagdenhauffenin who did this.
The problem as soon as we have public indecency, like other general crimes, is that it is very complicated to quantify their use for homosexuality, since it requires going through the judgments one by one to find out if it was a homosexual “indecency” or not. And so what this research team did was to analyse a certain number of judgments in an attempt to establish a statistical variation that allows for the quantification of 50,000 to 60,000 convictions over the period 1942-1982 for public indecency.
Beyond these limits, we have no numerical data, but we have leads. I’m talking about it and other colleagues are talking about it. I think of the works of Florence Tamagne that give a certain idea. We have a number of local studies.
And the exciting thing that is happening now is that there are many students in master’s or doctoral studies who do localized studies. For example, in Brest, in the department of the Loire, it makes it possible to specify the data that we have and the specificities of repression. It reveals that Brest or Toulon, military port cities, were the site of an intensification of repression in the 1920s and 1930s, with the idea that the presence of homosexuality threatened the military fleet, the greatness of France and our strategic capabilities, etc. And so a much more intense repression was put in place. But we don’t have a general picture.
In my book, for example, I come back to the question of the army, showing how there was a persecution of homosexuals in the army, with a rather simple slogan that is “we must eliminate homosexuals from the army”. There was a military security, which sought to flush out homosexuals in the army until at least the 1980s. For example, on the issue of civil servants and public employees, we have a few cases, but we do not have an overall picture. You can exhume things like that, but you don’t have a general landscape. It’s very complicated to quantify.
And on the question, for example of colonialism, we have very little to go on. I was talking about Tunisia, because in Tunisia, there is a study on the genesis of the Penal Code and so we have some elements. But even on the history of the action of France in the drafting of foreign criminal codes, it seems to me that there is very little and therefore even less on their practical application.
ÉTIENNE DESHOULIÈRES:
Small clarification on a particular case, that is the deportation of French homosexuals from French territory during the Second World War. We have an absolutely chaotic historiography, since we did not have data really collected by historians before 2018. That is to say, on this question of knowing whether homosexuals had been deported during the Second World War, we were not able to answer scientific certainties, here by historians before the production of a book in 2018. We had projections that were far beyond what we are able to demonstrate today and which also show, in my opinion, that when there is a state-sponsored homophobia, when homophobia is deeply rooted in society, it is felt in the academic field where studies on the question of penalisation are slow to arrive, since they only arrive today.
QUESTION:
I find the issue of reparation for unjust laws from the past quite interesting. Are there other cases of victims that the law subsequently wanted to repair in this way? Colonization is a tragedy that has cost the lives of many people around the world. But France is what it is, and there are people who ask the question of repairing the damage done by colonization around the world.
ANTOINE IDIER:
Thank you very much for the question. There are a number of examples. For example in France, since Étienne mentioned the question of internment and deportation, there was a policy of reparation after the war with the adoption of two status of internees and deportees. It concerns internees and deportees from the resistance movement and political internees and deportees, of which a number of homosexual persons who, despite having been interned and deported, did not receive reparation after the war. It is quite fascinating to go through the claims for reparation and see these reparations rejected.
And what is even more fascinating is that, from the 1990s and 2000s, when France officially recognized the role of the State in the deportation of homosexual persons, it did not change anything in the reparation, that is to say that all the people who had previously claimed reparation did not get economic or financial compensation, their cases were not reexamined at the end of this position. I have even found at least one case of a person who asked for their application to be reconsidered in the late 1990s, early 2000s, and their application was denied on the grounds that they were not going back on a decision already made.
There is an area today where the issue of repair is extremely important. This is the issue of slavery, both in France and abroad. There are many things in Brazil, many things in the United States, political reflections, theories, and also legal attempts. There have been at least two attempts by the French State to prosecute the history of slavery, which were unsuccessful very early on.
This raises a number of questions and I think that, even if slavery and homosexuality are not the same thing, this is an area for reflection that we can also draw on when thinking about our tools.
In recent legislation, there is a law on harkis that had to be passed a year and a half ago. It is a law of reparation that also opens up an interesting reflection on ways of granting reparations and providing justice in the present time.
OTHER QUESTION:
Good morning, everyone. So thank you very much to all the people who have come here from Afghanistan and various countries in Africa to testify for us. It was very painful to hear, but I think it is important. I have a specific question for you.
If I understand correctly, it is very difficult to act in your own country because of the repressive laws that prevail there, but is there any international aid or help from outside the country that can benefit you? I am thinking of Amnesty.
ARTEMIS AKBARY:
In fact, there are ways to help people. When there is a victory, there is a way, of course. So, from my perspective, there are several ways. The first way is based on my experience as, over the past few years, I have worked and travelled in different countries.
I have noticed that for LGBTIQ+ people, especially in conflicts, for example, there are many international organizations that provide humanitarian assistance to people who have been affected by conflict or other crises, such as Afghanistan and Syria. Even in Ukraine, in Iraq, when there was a humanitarian program, they provided, for example, shelter, housing, food for LGBT people.
One of the things that these international organizations can do, for example if we take the Red Cross in Afghanistan, is to adopt LGBTIQ perspectives, in their programs, in their agendas, to make sure that LGBTIQ people can benefit from humanitarian aid. One of the problems of countries that are stifled by conflict, is that LGBTIQ people do not have access to humanitarian aid.
I can give you a specific example, in Afghanistan, there are many organizations that distribute food or water, but when it comes to a trans person, they cannot go there and wait for humanitarian aid.
Two years ago, there was a terrible earthquake in Afghanistan, 2,000 people died. There were NGOs that helped people, but queer, when they wanted help from these NGOs they were persecuted by the local staff of these organizations. So it’s really important that in their strategies, organizations have this queer perspective, to be sure that LGBTIQ people can also benefit.
The other thing I’ve often pushed for, is establishing a safe and legal way to educate people, to save their country, perhaps in Europe. I think of an example from four years ago. There was a very nice person, an Italian activist who asked me why many LGBTIQ+ Afghans were coming to Europe with the help of smugglers? Why didn’t we just buy plane tickets?
I told him that he needed a visa and he didn’t know the concept of a visa, because we Afghans, but also in many countries in Africa, all over the world, need a visa to travel to another country. So it’s very different. But unfortunately, European countries don’t issue visas. That’s why it would be great if we campaigned for this, especially if we have the ambassador from France and other countries. I think we need a specific humanitarian visa to help these people go to other countries. But apart from the protection provided to people, it is also a question of justice and responsibility. Yes, there are in Europe, they are protected, they are in safe countries, but it is not like that everywhere.
And the other thing that an international organization can do is at least make some adjustments to the accountability of justice. Because while we have many processes going on for Afghanistan, for Syria, for some of the war criminals, these accountability processes don’t include LGBTQI+ victims. They don’t care about LGBTQI+ victims at all. We should therefore ask these international organizations, in particular the international accountability mechanisms, to bring justice and accountability to people, because LGBTQI+ people can be also victims of crime against humanity, war crimes, genocide and apartheid.
There is another thing that I want to mention specifically this year, which is that there is now an ongoing process of LGBTQI+ codification of gender apartheid as a crime against humanity under international law. But the proposed definition of gender apartheid is very exclusive and excludes the LGBTQI+ of victims of apartheid. It would be great if we were to plead in a way that LGBTQI+ people could be recognized as victims of apartheid, especially gender apartheid. Thank you very much.
ÉTIENNE DESHOULIÈRES:
We must move forward in the conference. Thanks for your intervention and your answers. I now invite Olivier de Frouville, Nick Leddy and Valérie Suhr. The question we are dealing with now is how can a crime against LGBTIQ+ people be classified as a crime against humanity?
Our first speaker is Olivier de Frouville, he is a professor of international law at the University of Paris Assas, which was my university when I was a student in law. You are going to talk about how we can legally characterize the criminalisation of homosexuality. In light of all the testimonies that we have heard, can one qualify an attempt? Can we call it complicity? The floor is for Olivier de Frouville, who is not here with us today, but whom we are lucky enough to have online.
OLIVIER DE FROUVILLE:
I have been asked to address the criminalisation of homosexuality within the framework of crimes against humanity. Before proceeding, I would like to echo the statements made at the opening of the conference by Ambassador Berton and the President of Amnesty International. We are currently facing a particularly challenging period, marked by the rise of anti-rights movements. However, I concur that this is not the moment to retreat from the defence of human rights; rather, it is a time to renew our efforts and strengthen our unity. All those committed to fundamental rights and inclusive societies should act collectively to counter anti-rights movements and reaffirm the values of universality and human rights, which are foundational pillars of the post-war international order. The construction of peace and equality depends on this collective commitment.
Turning to my presentation, I wish to clarify my approach to the concept of the criminalisation of homosexuality. I propose to understand both terms— »criminalisation » and « homosexuality »—in a broad and contextual manner, informed by the realities of sexuality, sexual identities, and sexual characteristics. The terminology varies according to context; some refer simply to « homosexuals », while others prefer LGBT, LGBTQI, or LGBTQI+, with the latter being more inclusive. What unites all those concerned is the experience of discriminatory criminalisation based on sexual orientation, gender identity or expression, or sexual characteristics. This point has been emphasised in reports of the United Nations Special Rapporteur on sexual orientation and gender identity, which state: “at the root of the acts of violence and discrimination under examination lies the intent to punish based on preconceived notions of what the victim’s sexual orientation or gender identity should be, with a binary understanding of what constitutes a male and a female or the masculine and the feminine, or with stereotypes of gender sexuality.”[1]
Within the framework of this conference, the term « homosexuality » should thus be understood as encompassing all those targeted under such preconceived gender notions and consequently subject to criminalisation. It is equally important to adopt a broad understanding of criminalisation itself. On one level, criminalisation refers to legislative and regulatory provisions that explicitly or implicitly criminalise homosexuality or other non-conforming gender identities or expressions. Such laws, by their mere existence, have a chilling effect and constitute discrimination in violation of international human rights instruments.
However, it also refers often to the enforcement of these laws, and the measures taken pursuant to them—such as arbitrary detention, imprisonment, or, in some jurisdictions, the death penalty—that further compound the harm. There are instances where laws are not systematically enforced, but their presence enables or justifies discriminatory practices. Uganda is a telling example: while the law prohibiting homosexuality and providing for the death penalty is not always enforced, its existence fosters discrimination and shapes societal attitudes. Beyond the law, or even absent a clear legal basis, there may be de facto criminalisation of homosexual conduct, or the use of other legal provisions to target individuals for reasons that are, in reality, rooted in their sexual orientation or gender identity.
It is therefore essential to approach the notion of criminalisation from a broad perspective. Criminalisation does not concern only acts perpetrated by State agents, which can be directly attributed to the State, but it also encompasses acts by private individuals. Several scenarios can be distinguished. A first scenario is when private individuals act as de facto organs of the States. They are not officials, but they receive instructions or at least act under the effective control of state’s entities. A second scenario is when private individuals who, emboldened by hate speech or encouragement from political leaders, the media, or social media campaigns, perpetrate acts of violence or discrimination without adequate institutional response, indicating a lack of due diligence on the part of State institutions to prevent or punish such crimes. Finally, there are instances where private individuals or groups—whether acting independently, as armed groups, political organisations, de facto authorities, or criminal organisations—engage in conduct that may amount to an organisational policy, a term employed in the Rome Statute, to which I will return.
Examining the phenomenon of criminalisation of homosexuality in this broad sense, it remains challenging to obtain a comprehensive global overview. The 2023 ILGA report, « Our Identities Under Arrest » documents approximately 1,300 cases across 74 countries, 53 of which maintain explicit criminal laws against same-sex acts between adults. Other states may not formally criminalise such conduct but do so in practice, in a broader sense of the term. Notably, the report highlights the significant underreporting of incidents, including arrests and prosecutions—a phenomenon common to other types of human rights violations—suggesting that reported cases represent only the « tip of the iceberg ».
The ICC-OP Policy Paper on the Crime of Gender Persecution offers a framework for analysing when gender persecution might constitute a crime against humanity, identifying contexts such as Afghanistan, Colombia, the so-called Daesh group in Iraq, Libya, Myanmar, Nigeria, Syria, and Yemen, where such policies may be implemented by states or by organisations, including political groups.
There remains relatively little strategic litigation in this area, though there are exceptions. A few years ago, for example, Maître Deshoulières submitted a communication to the International Criminal Court concerning Chechnya, invoking the crime of genocide. Various cases have also been brought before the European Court of Human Rights, other regional human rights courts and commissions—including the African Commission on Human and Peoples’ Rights and the Inter-American Commission on Human Rights—and certain United Nations human rights treaty bodies. Greater recourse to strategic litigation before international human rights mechanisms, such as international courts or committees, would enhance the visibility of this phenomenon and underscore the extent to which such practices violate international human rights law.
I turn now to the question of the applicability of the notion of crimes against humanity. This concept, as you know, comprises two types of elements in international criminal law. First, the contextual element defines the prerequisites for the application of the category of crimes against humanity, distinguishing it from genocide or war crimes. Second, there is a set of prohibited acts, or inhumane acts, which may qualify as crimes against humanity if the contextual elements are present.
The contextual elements are defined in the chapeau of Article 7(1) of the Rome Statute, which reflects customary international law and is thus relevant beyond the jurisdiction of the International Criminal Court, including in states that have not ratified the Statute or incorporated it into domestic law. Article 7 requires that there be an “attack”, defined in Article 7(2) as a course of conduct involving the multiple commission of acts referred to in paragraph 1, pursuant to or in furtherance of a State or organisational policy to commit such an attack. Thus, it is necessary to demonstrate the commission of a series of prohibited acts, as well as the existence of an intention—on the part of a State or organisation, including criminal organisations—to pursue a policy involving such acts. This is not always easy to establish.
Furthermore, it must be shown that the attack is directed « against a civilian population ». This can be particularly complex to prove in situations of armed conflict, where it is sometimes difficult to demonstrate that civilians are specifically targeted. The attack must also be “widespread or systematic”—two alternative criteria. “Widespread” refers to a large number of victims, while “systematic” refers to the existence of a particular pattern of conduct. Finally, it must be established that the perpetrators acted with knowledge of the attack’s nature. These contextual elements distinguish crimes against humanity from genocide and war crimes, and establish a high threshold of violence, whether in terms of the number of victims or the existence of a repeated pattern of conduct. This threshold is what differentiates crimes against humanity from other “autonomous” crimes, such as torture or enforced disappearance when these crimes are not committed in the context of a widespread or systematic attack.
In the application submitted by the Prosecutor before the ICC’s Pre-Trial Chamber II under article 58 for warrants of arrests against two leaders of the Taliban in Afghanistan (23 January 2025), there is some ambiguity regarding the precise meaning of « attack »: whether it refers to Taliban actions since the 1st of May 2003 (entry into force of the Statute for Afghanistan), or whether it concerns a more specific attack comprising multiple acts of gender-based persecution. At the next stage, the Prosecutor will need to clarify whether the aim is to demonstrate a crime against humanity based on an attack specifically targeting individuals for gender-based reasons, or whether the acts form part of a broader attack within the context of Taliban policy in Afghanistan.
In conclusion, and as the subsequent speaker will explore in greater detail, it is important to consider the category of prohibited acts under Article 7 of the Rome Statute that may serve as a basis for characterising the criminalisation of homosexuality as a crime against humanity. While several of the listed crimes may be committed against individuals on the basis of their sexual orientation, gender identity or expression, or sexual characteristics, only the crime of persecution could make that specific element of discriminatory intent (dolus specialis) apparent. However, the grounds of discrimination in the definition of persecution under article 7, paragraph 1-h have been purposely restrictively drafted. “Gender” as a ground of discrimination is defined in paragraph 3 which states: “For the purpose of this Statute, it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above.” And paragraph 1-h indicates clearly that if other grounds not enumerated might be considered, they should be “universally recognized as impermissible under international law”. This refers to an ongoing controversy, especially at the UN Human Rights Council, where a group of States – mainly from the Organisation of Islamic Cooperation (OIC) the African Group vehemently oppose the inclusion of sexual orientation and gender identity among the “universally recognized” grounds as impermissible under international law.
The ICC’s Office of the Prosecutor has clearly made a choice to resist that interpretation. In its Policy on the crime of gender persecution of December 2022, the Office supports the view that “gender-based crimes target groups such as women, men, children and LGBTQI+ persons, on the basis of gender”. Such a view was implemented in the Prosecution’s application under article 58 for a warrant of arrest against two leaders of the Taliban (23 January 2025, § 88): “Alongside its persecution of girls and women, the Taliban persecuted those who were otherwise perceived not to conform with their ideological expectations of gender identity or expression, such as members of the LGBTIQ+ community.”
But the next question then is: what will be the position of the judges when they will decide on the application?
It would be very hard to predict, if one is to take into consideration the Al Hassan judgement (26 June 2024) where the accused was acquitted of the charges of gender-based sexual violence and forced marriage because two of the three judges composing the chamber denied them, but for completely different reasons. While they did not agree on the substance, the result of their votes was to drop the charges…
Thank you for your attention.
ÉTIENNE DESHOULIÈRES:
Thank you very much, Professor, for this very clear presentation, which will feed our reflection on homosexuality and crime against humanity.
We will now continue with the speakers with a question for Nick Leddy, head of litigation of Legal Action Worldwide.
The question is: Which state agent can be prosecuted? Because, during the prosecution of a homosexual person before a court, in a country that criminalizes homosexuality, a lot of agents could be prosecuted : the agents who voted the law, the state prosecutor, the judge, prison officers. All of these persons could possibly be prosecuted, because they participated together in the persecution of LGBT people. Therefore, we asked Nick Leddy to make a clear presentation on this difficult question.
NICK LEDDY:
Thank you Etienne, Merci et bonsoir à toutes et à tous. My name is Nick Leddy and I am the Head of Litigation at Legal Action Worldwide (LAW). It’s a pleasure to be here, and I want to start by thanking all the participants who started the evening. Your extremely inspiring words are something that I am going to take home with me. Bravo for your bravery and courage : coming here to share your story, and going back to continue the fight is really inspiring. And if there is anything you need, or that I can do or my organization can do to help, don’t hesitate to ask.
I want to start with a brief history of my experience with international criminal law and how I came to this topic of gender persecution as a crime against humanity. I started my legal career as a prosecutor in New York, where I was part of the LGBT Diversity Committee, and then I started at the International Criminal Court in 2017 as a Trial Lawyer at the Office of the Prosecutor. We created a group called the ICC-Q. It was the LGBT affinity staff group that addressed issues of sexual orientation and gender diversity at the ICC. And we started talking about the need for greater visibility not only among the staff of the Court, but also in investigations and prosecutions.
So, wanting to do more in that regard, I did some research, and published a few articles. Valerie [Suhr], your research was instrumental, thank you for that. This was all before the OTP (Office of the Prosecutor) even had a gender persecution policy. And I think the path of this policy is really attributable to Lisa Davis, who has made an incredible contribution to promoting LGBTIQ+ visibility in international criminal law, particularly at the ICC. And you probably saw her with the prosecutor announcing the arrest warrants applications in Afghanistan a few months ago.
It’s great to see the progress we’ve made, going from a total lack of visibility in 2019 to now having an arrest warrant application for gender persecution for LGBTIQ+ people, a real change I think and something that demonstrates the power of our community, our activism, our ability to bring people like us together at the table.
But we still have a lot to do, don’t we? As we heard from the first panelists, there is an incredible amount of criminality, violence and repression against LGBTQ+ people around the world. And we will now talk about the legal frameworks that apply to state actors and non-state actors who are committing this violence against our community. So we had an excellent overview of the crimes against humanity from Professor Olivier De Frouville, thank you for that. I’m going to talk a little bit about the same contextual elements, just to give a quick overview of this law, and then go into gender-based persecution and then give some examples.
Starting with the crime against humanity, you heard the overview of the elements, but I will focus on a few important ones. We heard about the “attack on any civilian population”. And the definition of this attack requires a “course of conduct” involving multiple acts pursuant to a state or organisational policy. So the question is: which state agents can be prosecuted? Can we hold criminally liable those who voted and signed a law criminalizing same sex relations?
And so, in my research and experience, the mere act of passing a law, in my opinion, is not a crime against humanity. The law must be enforced. Plenty of countries have discriminatory laws that are not enforced. There must be a broader attack on the civilian population and multiple commissions of acts. This is how the law defines an attack. So you really have to look at what’s actually happening on the ground: how is that law being enforced? Who are these state agents or private actors acting as state agents? Are they enforcing this law in a violent or discriminatory manner? Who is arresting gay people? Who is detaining lesbians, who are trying to correctively rape them? So, in my view, it’s really about law enforcers and the level of violence that the state or its agents use to enforce the law.
We have heard of these terms, widespread or systematic. Widespread is in reference to the number of victims. A crime against humanity must be widespread or systematic, involving a large number of victims, or resulting from some kind of regular pattern with the same perpetrators and the same victims. It must either be a state or organizational policy. And I’d like to think creatively here. So for state policy, the state’s action is obvious. We know that police can arrest, detain, and torture people in prison. But what about these non-state actors? You probably know of the Lafarge case here in France involving contributions to ISIS crimes as a company, right? What about the non-state actor who contributes to a crime? What about non-state actors contributing to the persecution of queer people in these countries? There may be foreign groups, religious groups, outside actors who want to influence the exercise of policy in a national jurisdiction. I’m suggesting we think outside the box, and that it’s not just state actors, but organizations that could be liable for crimes against humanity in this context.
The crime of gender persecution, as has been said, is really the most relevant, I would say for this particular context. The elements, which I will address very quickly, require more than a deprivation of a fundamental right; it must be a severe deprivation of that right. So to come back to the question of who can be prosecuted, if it is someone who has voted for a law, or someone who has passed a law, in and of itself, it will probably not reach the level of severity of deprivation of a fundamental right required for gender persecution. Essentially the case law and practice suggest that more serious acts of violence are necessary to meet this element of crimes against humanity. Whether it is murder, rape, deportation, unlawful detention, torture, denial of right to life, right to liberty, denial of freedom of movement, right to employment, which we heard about earlier with respect to forced labour – these can be fundamental rights that are generally a play in the crime of persecution.
And we saw excellent examples of that in the arrest warrant application in Afghanistan. We have seen, for example, restrictions on the right to education, freedom of movement and freedom of association. And it is this deprivation of private and family life that is most relevant to consensual sexual relations between adults. And the deprivation of this right, for example, is the one considered “severe”, at least for the Office of the Prosecutor of the ICC who has found reasonable grounds to believe Taliban leaders are guilty of gender persecution by depriving queer Afghans of this and other fundamental rights.
I would like to talk more about the other elements of the crime of persecution and how they help us determine who may be liable for these crimes. It’s important to look at these intersectional grounds of persecution, not just gender, but also people who discriminate on other grounds, whether political, racial, ethnic or otherwise, and who have a reason to do so. This crime of persecution is not a standalone crime. It must be charged in connection with other Rome Statute crimes, whether it is murder, torture or other inhumane acts. So it cannot be just gender persecution in the context. There must be other alleged crimes and they do not need to be charged, but they can form the basis of the impact on the broader civilian population. In addition, there must be a particular nexus of these acts of persecution to the broader attack on the civilian population and the perpetrator must commit the act knowing that it was part of a larger attack. So it’s really, in my view, not enough for an elector or a legislator in a particular context to suggest that merely voting for a law is an actual contribution to a crime against humanity. I think there is a real problem proving the knowledge element as well as the intention.
In addition to having to prove all of these elements of crimes against humanity and gender-based persecution, prosecutors should also link the individual perpetrator through a mode of liability. It’s a little technical, but it’s Article 25 and Article 28 of the Rome Statute. Take a look. It outlines the different ways in which you try to connect the individual actor, whether he is a police commander, a prison warden or a demagogue who engages in hate speech. All these people must be connected, through their intent to perform the particular act in question. There’s a lot of case law on that too, and it adds another layer of difficulty in proving these cases beyond all reasonable doubt. I was going to come back to the example of Afghanistan, but Artemis did a great job in describing it earlier.
I’ll just touch on a couple of points very quickly. The picture that the Taliban arrest warrant request painted was that of a broad system of repression, not only against women and girls, of course, but against LGBTIQ+ people. And it wasn’t just the criminalisation of homosexual relationships. It was a whole list of viciously discriminatory laws and regulations that were applied with extreme violence, including the death penalty, torture, detention, arbitrary arrest. So this is a really compelling case, a very clear case of gender persecution, I would say. It is in this context that we have seen perpetrators, for example, not only criminalize same-sex relations, but also the punishment of the same behaviour under alleged crimes of morality. The Taliban had a true state policy to crush any resistance, and we saw this through public executions designed to intimidate the population.
I think it’s also interesting to think about other contexts. We heard our colleagues and friends talk about their experience in Uganda, which is an ICC State Party. When I was reading some literature on the train on my way over here, it occurred to me that there was an incredible organization on the ground doing the documentation. It’s the Strategic Response Team, an NGO that documents the crimes in Uganda against LGBTQ+ people. They have documented more than 1,000 cases of violations against queer people, human rights defenders and the allies of people there, and the perpetrators they have identified are, for example, local police as well as local councils, state agents, but also landlords. So private citizens were thus responsible for many violations and evicted people from their homes, reported them to the police, forcing them into situations of insecurity. In that context, I think it’s interesting to examine the relationship between private and state actors to determine the extent to which landlords and organised private citizens can be held accountable by the state if they are acting under the direction of the police by handing over victims.
I think there’s certainly room for liability there, and that it is an interesting angle to look at. Of course, it gets much more complicated if it’s some kind of random violence without a clear chain of command or control, it’s a little harder to prove, you know, intent and knowledge beyond a reasonable doubt. But the report that I read suggested that landlords played a significant role in violence and discrimination against queer people in Uganda. And that was an important point for me.
The alleged harm there was reported: at least 69 allegations of arrests, more than 300 cases of detention, physical and sexual violence, including gang rapes, and over 400 allegations of evictions. So there is an incredible amount of crime against LGBTIQ+ people that has to be worked on, and I’m curious to hear our Ugandan colleagues talk about this experience later today.
I think I’d like to wrap up quickly with some thoughts not only about who we hold accountable, but also how we hold them accountable, right? Certainly, making applications to the ICC prosecutor under Article 15 or otherwise is an option, and I think we’re all encouraging you to do that. If you have questions about this process, you can ask any of us here, but also think outside the box. I think one of our first speakers talked about the importance of universal jurisdiction, for example. And when you think about it, it is important to consider the legal avenues outside of the state in question, because it is probably not safe to bring a legal action in your own country. Where the state would not or could not prosecute this crime, think of third states where you can file a complaint. I can think of some organizations like LAW that have had some success in bringing cases of universal jurisdiction in other contexts in other countries against military leaders, for example. And I think the same could be true for those who discriminate against queer people through gender persecution, torture, murder and detention. All these crimes could be the basis for claims of universal jurisdiction complaint in a third party state.
I would like to stop there and again thank the organizers for the invitation
ÉTIENNE DESHOULIÈRES:
Thank you very much for this explanation, it will be useful in the wake of where we engage after the conference. The third intervention on this panel is more precise. In fact, we know that gender-based persecution can be a crime against humanity. But could persecution against LGBT people be considered a crime against humanity?
Our specialist in this area is Valérie Suhr. She holds a doctorate in law from the University of Hamburg, and is the author of a very recent book on the same subject: Criminalisation of homosexuality and crimes against humanity.
Thank you, Valerie, for coming to Paris from Germany.
VALERIE SUHR:
Thank you very much for the invitation. I’m really happy to be here for my presentation. I wanted to say that I was really touched by some of the testimony you gave earlier.
I will, as you said, talk about the question: are sexual orientation and gender identities recognized grounds for persecution? And yes, you already said it, I am at the university of Hamburg and I have written my PhD thesis on exactly this topic and my book was published as “Rainbow jurisdiction at the International Criminal Court: Protection of sexual and gender minorities under the Rome Statute”. By sexual minorities, I mean lesbian, bisexual and gay people. With gender minorities, I refer to trans and inter-sex persons.
The key question of research is: Are the worst human rights violations specifically targeting sexual and gender minorities punishable under the Rome Statute?
There has been a big improvement for sexual and gender minorities (SGM) and their rights – at least in the global north, sometimes seen as woke and trendy. We heard earlier today that SMG still face a lot of state and non-state violence in many parts of the world.
I therefore analyse whether the worst human rights violations specifically directed at them are punishable under international criminal law. To answer this question in the affirmative means to recognize crimes against SGM as belonging to the most serious crimes of concern to the international community as a whole.
I will also focus on the crime against humanity of persecution as codified in the Rome Statute. As we have already heard, sexual orientation and gender identity are not explicitly listed as prohibited grounds of persecution in the Rome Statute, but gender is, and also other grounds, which are universally recognized as impermissible under international law.
Drawing on general rules of interpretation on the development of SGM human rights, as well as on the social construction of gender, I will show that the persecution of SGM falls under both grounds. In my book, I analyse this question more comprehensively, but in this presentation, I focus on the issue of these two grounds for persecution.
Unfortunately, my research question is still very current and relevant. So far, there is no decision in international criminal law on this topic. But we heard earlier this year that the prosecutor of the ICC filed the first two requests for arrest warrants in the situation of Afghanistan, and the Prosecutor firmly alleges that they are responsible for the crime against humanity of persecution on gender grounds according to the Rome Statute.
With this historic decision, the Prosecutor for the first time explicitly included alleged crimes against sexual and gender minorities. All crimes against humanity, we have heard in more detail now, must fulfil the contextual elements which means that they are to be committed as part of a widespread or systematic attack against a civilian population pursuing state or organizational policy.
In my opinion, the contextual element is particularly fulfilled with regard to SGM through laws imposing imprisonment, corporal punishment or death penalty for consensual same-sex sexual activity if they are actually enforced. And in general, when the broad range of gender non-conforming individuals are attacked, with perceived SGM just being one of the targeted groups.
In my opinion, instances of violence and discrimination against SGM that can amount to persecutors include anti-SGM laws, extrajudicial arbitrary arrests, killings and violence by non-state and state actors.
I will now turn to the issue of gender-based persecution, which is the most part of my presentation here. In my opinion, the persecution of only male or only female SGM is always gender-based irrespective of whether the Rome Statute covers persecution based on sexual orientation and gender identity, as these are intersectional subgroups of women and men.
The Rome Statute defines the term gender in a specific way. Here, in article 7, paragraph 3, for the purposes of the Statute, it is understood that the term “gender refers to the two sexes, male and female genders within the context of society. The term gender does not indicate any meaning different from the above.”
So, we have this definition of gender. What shall we do with it? It’s about the formulation of both sexes within the context of society. We have this distinction between sex on the one hand and gender on the other. Sex refers to the biological distinction between men and women. The term “gender” is a broader concept that includes socially constructed roles played by women and men that are required to them, based on their sex.
And the Rome Statute uses these two definitions – both sex and gender. The term gender was in fact deliberately chosen. This shows that the definition of the Rome Statute does not only include sex in a biological sense but also gender as a social construct.
The Rome Statute’s gender definition takes biological sex as a starting point but goes beyond it by indicating that gender is created in the context of society. In my opinion, because of the Nullum crimen sine lege principle (Article 22 of the Rome Statute), saying that the “definition of a crime shall be strictly constructed and shall not be extended by analogy,” perpetrators must perceive victims as belonging to the two sexes, male and female.
So, unfortunately, this definition remains in an outdated binary understanding. However, because of the inclusion of gender as a social construct, the perpetrators also persecute on a gender basis when they target their victims, as they perceive victims as violating gender expectations.
In addition, the ICC’s OTP defines gender crimes as those committed against people because of their socially constructed gender roles. This is broad enough to include violence as a punishment for non-compliance with alleged or attributed gender social roles. The applications for arrest warrants show that the OTP is currently seeing crimes committed against SGM as gender-based persecution.
Discrimination on the basis of sexual orientation is directed against those who violate their social and cultural conception of gender. They are often targeted as punishment for not complying with the expected or prescribed gender rules of appropriate maleness or femaleness.
With regard to the sexual orientation here – I refer to homosexuals and bisexuals – they usually fit well into the binary part of the Rome Statute’s gender definition. Society expects women to have a male partner and men to have a female partner. If they have a partner of the same sex instead, they do not meet this expectation. And if they are discriminated against because of the person they love, that discrimination is gender-based.
With regard to transsexual persons, who are born belonging to one sex but identify as the other gender, they also fit in the binary definition of gender. They are discriminated against because they do not meet society’s expectations of gender. They challenge the biological sex as prescribed at birth is the ultimate determinant of one’s sex.
When transsexuals are discriminated against because they are perceived as male or female, yet, not rightfully belonging to the chosen gender, this is gender discrimination.
Regarding transgender and intersex people, they generally identify outside the binary gender system. Intersex could even from a medical point of view be considered as a gender or even a sex. However, they do not belong to the two sexes: male or female. The interpretation of international criminal law must not exceed the wording. Therefore, transgender and intersex people are unfortunately not included in the regular meaning of the definition. However, in international criminal law, the perpetrator’s perspective is the relevant perspective. And in fact, most people, – and particularly the perpetrators in this case I would say –, consider all people to be male or female, regardless of how they identify themselves.
When the perpetrator wrongfully perceives someone as belonging to the persecuted group, this is persecution, for example: a heterosexual woman with short hair who is persecuted as a lesbian. The same applies to international human rights law and international refugee law. Such an interpretation is therefore supported by the human rights interpretation, article 21 of the Rome Statute.
Therefore, the persecution of transgender and intersex persons can be based on gender when the perpetrator misperceives them as women or men behaving in a manner that violates gender assumptions.
To conclude, with respect to gender-based persecution, the wording of gender definition favours an interpretation that includes sexual orientation and, at least to some extent, also gender identity. This is supported by a human rights interpretation. Some international law institutions and courts have already interpreted gender, sexual orientation and gender identity from their respective gender or sex provisions. The United Nations usually sees gender as socially constructed. In my opinion, therefore, although heavily criticized, the Rome Statute’s gender definition can actually include most cases of persecution based on sexual orientation and gender identity.
Most importantly, the OTP with its application for arrest warrants earlier this year has shown that the OTP is already prosecuting crimes against SGM as gender-based crimes. So, this was it regarding gender-based persecution.
I would also like to talk briefly about the other ground that could apply here – “other grounds that are universally recognized as impermissible under international law”. With this ground, the Rome Statute allows to react to further developments in international human rights on the international criminal law level. There is not yet a consensus on how to interpret these grounds exactly. However, there is a consensus that universally recognized sets a high standard, but rather means widely recognized as opposed to being recognized as impermissible in every single state.
In my view, this standard covers a human rights treaty law as interpreted by international human rights bodies. State practice plays only a minor role for the standard of the Rome Statute because it could constitute a violation of international human rights law and is generally considered to have less interpretative value in the field of international human rights law. And as I said, the Rome Statute explicitly refers in this norm to international human rights law.
So now, I want to say very briefly something about the most important developments in SGM rights at the international level to show that sexual orientation and gender identity are universally recognized as impermissible grounds for prosecution.
On the universal level, we have several decisions from the United Nations, including by the Human Rights Committee on prohibition of discrimination based on sexual orientation. In addition, the Yogyakarta Principles state that binding international human rights law poses an absolute prohibition of discrimination based on sexual orientation and gender identity. In 2008, the UN General Assembly reaffirmed the principle of non-discrimination which requires that human rights apply equally to every human being, regardless of sexual orientation or gender identity. In addition, there are several UN human rights council’s resolutions on human rights, sexual orientation and gender identity, and for some years we have already had an independent expert on the same subject here at the UN.
At the regional level, for many decades now, we have had a settled jurisprudence, by the European Court of Human Rights and the European Court of Justice on the prohibition of discrimination based on sexual orientation and gender identity.
In 2014, the African Commission also adopted a resolution on SGM human rights. In addition, the Inter-American Commission on Human Rights makes clear that violence and discrimination of SGM constitute a clear violation of human rights as recognized by international and inter-American instruments on human rights. For the emerging Arab and Asian human rights systems, there are no decisions on this topic yet.
I would therefore argue that discrimination based on sexual orientation and gender identity is in fact prohibited under international human rights law, particularly at the universal level as interpreted by the United Nations.
Therefore, in my view, sexual orientation and gender identity are other grounds that are universally recognized as impermissible under international law, as required by the Rome Statute. First, international human rights law, as we have seen, clearly states that sexual orientation and gender identity are protected grounds. Second, on this basis, international refugee law clearly states that sexual orientation and gender identity are protected grounds.
The next logical step is that these developments also influence international criminal law. And this obvious development makes it difficult to argue that the accused could not have foreseen the possibility that the crime of persecution on other grounds covers grounds of sexual orientation and gender identity.
The ICC has already qualified sexual orientation as a protected ground under its non-discrimination clause contained in Article 21 of the Rome Statute.
Recognizing that persecution against SGM may constitute a crime against humanity of persecution does not mean that international criminal law requires states to adopt laws explicitly protecting SGM. It simply means that they must not engage in the most serious violations of their human rights, including criminalizing same-sex sexuality.
So, to conclude here, crimes against SGM may amount to persecution under the Rome Statute. The Rome Statute’s definition of gender includes sex as a biological sense as well as gender as a social construct. Therefore, the persecution of homosexuals, bisexuals and transgender is a gender-based persecution in my opinion.
However, as we have seen, due to the unclear formulation of the definition, the definition stays in an outdated binary gender understanding. Therefore, the perpetrator must perceive the victim as a male or female, which I think would generally be the case. Intersex and transgender people are not included, unless, and I think it often is the case, the perpetrator mistakenly perceived them as either male or female and violating society’s gender expectations. Moreover, sexual orientation and gender identity are grounds universally recognized as impermissible under international law.
So far, the ICC’s OTP has prosecuted crimes against SGM as gender-based persecution and I think that is a very good way to do it, because it doesn’t single out SGM but show that they are persecuted on the same grounds as other people, in this case, all of those not following the Taliban’s gender regime.
Thank you very much for your attention.
ÉTIENNE DESHOULIÈRES:
Thank you very much for this explanation and especially for developing those key concepts. They are going to be very important in the next few years to know whether or not the persecution of LGBT people will fall into the category of crime against humanity. Now is the time to ask our speakers questions. Are there any questions?
QUESTION (CAMILLE SCHALTENBRAND):
Thank you so much, that was very interesting and enlightening. I have a question for Nick. I have understood that you said that if local parliamentarians pass the law, that it would be difficult to show whether they knew that this law could lead to a crime against humanity. But passing legislation means we have committee discussion, commission discussion to put it in debates and show the purpose of the law. Could this be a good ground to show that, even though you can’t find in writing that people want to commit a crime against humanity, that people have the intent to prosecute, to punish, to put in jail, or clearly to harm LGBTQ+ people, notably in countries where you have the death penalty ? Would this kind of documentation be a good basis to document intent in relation to parliament members or a president signing a law for example ?
NICK LEDDY:
Excellent question and I think clearly you’ve done your homework. So I was thinking about this question while preparing for the conference and I did some research online. As far as I know, I haven’t come across a single case in international criminal law where legislators have been held criminally reliable for passing a law.
Certainly not sitting with the voter or a legislator, you would have seen people who acted as legislators and who, for example, became some kind of demagogues in their field and became very well known for their hate speech against a particular group. And it is all the things combined that result in the persecutory act. So it’s the passing of the law, the hate speech, the rallies, I guess the online era, social media. All of those things would be relevant to characterizing intent and serving legislative history, like the debate about the bill or the intent behind the bill.
It would certainly be relevant evidence of their intent to commit sexual persecution against queer people, but I guess I would push back passing a law in isolation whether that this in itself is sufficient for the threshold of crime against humanity, not only because of the multiplex required for an attack, but also for the gravity threshold under Article 17 has to meet a certain level of gravity to become admissible at least before the ICC for prosecution. So I think it’s very interesting, very relevant.
And I think any investigation into these crimes should certainly look at that as part of the state policy, as part of the intent of the state in question. But I guess I’m just not sure that in itself, in isolation without enforcement, the passing of the law could be a crime.
ÉTIENNE DESHOULIÈRES:
And what about complicity? Because they give the people (…) the means to persecute people?
NICK LEDDY:
So, if I understood Étienne’s question correctly, he was asking about complicity in persecution based on gender and whether a legislator could be convicted for it. Would this amount of aiding, abetting or otherwise contributing under Article 25(3) of the Rome Statute, which outlines the specific modes of liability that I mentioned earlier?
And in those cases, you know, each motive of liability is different. You see classic examples of providing weapons to an armed group to commit a crime knowing that these weapons will be used in the course of the crime. But in that context, I guess you could creatively argue that this law is the weapon to commit the persecution.
But I’m not sure that in and of itself, passing a law without any kind of knowledge or clarity on the degree of enforcement would pass because there are many states that criminalize same-sex relationships but do not enforce anything. So I think we need to be aware of that. There must certainly be an intention and knowledge on the part of the legislator that the state would apply it in a violent and discriminatory manner.
VALERIE SUHR:
I wrote a chapter about that subject in my book. I would have liked to be able to analyze this issue a month ago. But in the end, it turned out to be extremely complex. Honestly, I regret having had this idea, even though I went to the end and spent a lot of time on it. It was, in my opinion, really very complicated.
As you have often said, there are many forms of accountability, and I’ve tried to explore them all. It was not a good idea. In the end, if you want to read it, my result is that maybe we could use instigating as a mode of liability in case the law is actually enforced. It is my result after a lot of reading and a lot of thinking, but I didn’t find anyone who ever tried to do that.
ÉTIENNE DESHOULIÈRES:
Okay, we’re out of time, so we’ll go to the next panel. Thank you very much, Olivier, Nick and Valérie, for your presentation.
The next panel will answer a very practical question. Once you know that state actors who enforce the law are likely to be prosecuted for crimes against humanity, for the persecution of LGBT people, where will you file your complaint? Are you going in front of the International Criminal Court? Are you going to a regional court? Are you going to go to local tribunals that have international jurisdiction?
These are the questions that our speakers will be talking about within the next minutes.
Our first speaker is my dear colleague Camille Schaltenbrand, an international lawyer at Stop Homophobie. Do you think, Camille, that it would be possible to prosecute people in front of the ICC? And what are the prospects of success in front of the ICC?
CAMILLE SCHALTENBRAND:
Can the International Criminal Court be seized in connection with the criminalisation of homosexuality? Does the ICC have jurisdiction ratione personae, ratione loci and ratione temporis? How does the principle of complementarity apply to situations where LGBTQ+ people are victims of atrocious crimes?
Thank you very much for the floor, Etienne, I am pleased to open the third panel. I will not predict the future. The purpose of my presentation is to determine whether or not there is a legal avenue for the ICC to deal with situations and potential cases involving crimes against sexual and gender minorities. I will take all the conditions of jurisdiction and admissibility for crimes committed on the territories of Uganda and Afghanistan and show how they are, or not, met. It is a means of concluding the second part on the substance of the law in order to begin that part relating to the procedure.
As regards the possibility of bringing cases before the ICC in relation to crimes allegedly committed in Uganda, this seems prima facie possible under the applicable law. In particular, the ICC has already examined a situation in Uganda regarding war crimes and crimes against humanity committed in the context of a conflict between the Lord’s Resistance Army (LRA) and national authorities in Uganda since 1 July 2002. Two cases have already been heard by the Court: those of Joseph Kony and Dominic Ongwen. So there is already a ground at the ICC for Uganda to be examined for crimes against LGBT+ people.
For Afghanistan, we have a basis with the Prosecutor’s Office’s request of arrest warrants dated 23 January this year, targeting two Taliban leaders, which shows the Prosecutor’s willingness to focus on that country when it comes to crimes targeting the LGBT community. Although the Chambers have not yet confirmed the application, this document provides a good basis for examining the jurisdiction and admissibility of alleged crimes in Afghanistan. Even though the situation in Afghanistan and Uganda is politically sensitive and gender crimes are difficult to highlight in these two countries because of their contentious nature, and although we do not know what the future holds, the mere referral of these issues and offences by the ICC’s Prosecutor remains a symbolic gesture in favour of universal rights and the protection of minorities.
Concerning the jurisdiction ratione temporis (article 11 of the Rome Statute), Uganda ratified the Rome Statute on 14 June 2002. Afghanistan ratified the Rome Statute on 10 February 2003. To date, both are still Member States of the Court, so the time requirement is met. On the jurisdiction ratione materiae (article 5) as discussed before, the crimes under the jurisdiction of the ICC include crimes against humanity of persecution. On the jurisdiction ratione loci/personae (article 12), the crimes were allegedly committed on the territory of Uganda and by nationals of the Ugandan state. The crimes were also allegedly committed on the territory of Afghanistan and by nationals of the Afghan state, as illustrated by the January request in which the Prosecutor mentions Haibatullah Akhundzada as the Taliban’s supreme leader and Abdul Hakim Haqqani as the Chief of the Supreme Court of the Islamic Emirate of Afghanistan. The conditions of jurisdiction are therefore, on a prima facie basis, fulfilled.
On the matter of admissibility, we must first discuss complementarity (article 17). The ICC may not deal with a case if it is being investigated or prosecuted by a competent state, unless that state is unwilling or unable to conduct the investigation or prosecution effectively. The ICC also cannot deal with a case if the State has decided not to prosecute the person concerned, unless that decision is motivated by a lack of will or a real inability on the part of the State to prosecute.
Lack of will (unwillingness) is characterized if the proceedings were or are being conducted, or if the national decision was taken, with the aim of exempting the person concerned from criminal liability, if an unjustified delay has been found in the proceedings or if there has not been or is not conducted independently or impartially in a manner incompatible with the intention to bring the person concerned to justice. Incapacity (inability) is established when, due to a total or substantial collapse of the national judicial system or its unavailability, the state is unable to persecute someone.
In Uganda, proceedings are underway for the Anti-Homosexuality Act of 2023, which introduces severe penalties for same-sex relationships, including life imprisonment and the death penalty for “aggravated homosexuality”. Petitions have been filed before the Constitutional Court to challenge the constitutionality of this law, notably by Pepe Onziema. In April 2024, the Constitutional Court decided to maintain most of the law. The appeal to the Supreme Court is ongoing, and for more details you can turn to our expert Pepe Onziema.
With regard to the condition of complementarity before the ICC, article 17 emphasizes the obligation to investigate and prosecute, which stresses the necessity for the proceedings to be of criminal nature. An appeal for unconstitutionality will probably not be considered as an ongoing proceeding within the meaning of section 17. In this sense, it would first be necessary to demonstrate that the State is not prepared to prosecute perpetrators of crimes against humanity by pursuing domestic courts on these grounds, which has not yet been done. However, if the head of state and members of parliament are the potential authors to be brought to justice, it is unlikely that this will happen due to the nature of their duties. This may constitute a lack of willingness, as the Prosecutor argued in the request for arrest warrants relating to the situation in Afghanistan.
With respect to Afghanistan, the Prosecutor, in his submission to the Pre-Trial Chamber in August 2022, recalls that after the Taliban took power in August 2021, the current authorities representing Afghanistan have neither the will nor the capacity to conduct genuine investigations or prosecutions, as evidenced by the release of thousands of prisoners and the proclamation of a general amnesty for all “political prisoners […] without any restriction or condition”.
The ICC repeatedly notes that no proper investigation is currently being conducted in Afghanistan (ICC, Preliminary Chamber II, Situation in the Republic of Afghanistan, 31 October 2022, §58). Although not required to do so in his request for warrants, the Prosecutor nevertheless reviewed the condition of complementarity in January and concluded that no internal proceedings are ongoing against Akhundzada and Haqqani, they exercise supreme authority over the Taliban and no institution of the Afghan de facto government has the authority or ability to investigate or prosecute them. We are waiting to see if the Chambers will accept these arguments.
Admissibility means complementarity, but it also means gravity (article 17). The case must be serious enough to be tried by the ICC, and rule 145 of the Rules of Procedure and Evidence serves as a guide. In Uganda, the scale of the attack must reach a certain threshold of severity. Based on surveys conducted by civil society organizations (including Sexual Minorities Uganda and Human Rights Awareness and Promotion Forum) and based on the testimony of our Ugandan colleagues, we have identified hundreds of reported human rights violations between 2018 and 2021, and we do not know the actual number of violations. SMUG has reported more than 1,000 cases of violence since last September. The nature of the attack includes arbitrary arrests, expulsions, insults, threats, police raids on LGBT shelters, police checks, very long police custody, physical assaults, physical and psychological violence and public humiliation. The impact on victims includes physical and psychological trauma, exclusion from the community and forced migration. The role and rank of perpetrators is particularly relevant because it is state-enacted legislation; therefore, a large proportion of crimes are committed or encouraged by state agents.
In Afghanistan, organizations reported that between 2022 and 2024, at least 98 LGBTQ+ people were publicly punished in 14 provinces, including stoning, flogging and imprisonment. There are credible reports of “kill lists” targeting LGBTQ+ individuals across the country, increasing fear and forcing concealment within the community. Since the mere fact of reporting these acts puts victims at risk, it is difficult to assess their true extent. The nature of the attack involves physical violence (beatings, sexual assaults and public flogging of people considered to be in violation of the gender norms imposed by the Taliban) and psychological abuse (Severe restrictions that have a major impact on the mental health of women, girls and LGBTI people). The impact on victims is extremely heavy, both physically and mentally, reinforced by the social isolation and marginalization of these populations. The role and rank of the perpetrators is crucial as persecution is sanctioned by the state, including the highest Taliban hierarchy, notably Supreme Leader Haibatullah Akhundzada.
Admissibility also includes the principle of Ne bis in idem. To date, there is no evidence that individuals responsible for crimes against LGBT people in Uganda or Afghanistan have been tried in another state.
Finally, the interest of justice is also a condition to take into account. The ICC has argued that not investigating potential perpetrators at the preliminary stage would be contrary to this interest. This had initially impeded the admissibility of the situation in Afghanistan, But this was remedied by the Appeals Chamber when it authorized the Prosecutor to open an investigation into crimes under the jurisdiction of the Court related to the situation in the Islamic Republic of Afghanistan. The Prosecutor is now explicitly mandated to investigate all potential perpetrators from the preliminary stage.
Jurisdiction and admissibility conditions seem to be all, prima facie, fulfilled. The ICC could be a legal avenue for atrocious crimes against the LGBTQ+ community in member states.
ÉTIENNE DESHOULIÈRES:
Thank you, Camille, for this intervention!
Prosecuting people at the International Criminal Court is not the only way. And, as I said in my introduction, we have Pepe Onziema, whom we are very happy to welcome to Paris. He is a human rights activist. He is the program director of SMUG Sexual Minority Uganda. As already said, SMUG was already at the origin of this movement to qualify the criminalisation of homosexuality as a crime against humanity. And they started in the USA. The question I ask you today, Pepe, is: could we go before national courts or regional courts in order to prosecute people who persecute LGBT people in countries where homosexuality is criminalized?
PEPE ONZIEMA:
I represent Sexual Minorities Uganda (SMUG), an organisation that has been in existence for 21 years. In the eyes of the Ugandan government, our existence is illegal, but for us, the right of association is guaranteed by the Constitution of our beloved country.
In 2009, American evangelists began to flow into Uganda. Since then, their influence has grown. In the space of ten years, two anti-homosexuality acts have been created, both supported and financed by these extremist American evangelicals. Our strategy was to “send homophobia back to the sender” by suing one of these pastors, Scott Lively from Springfield, Massachusetts. For us, it was a symbolic action to say that homophobia is not African, homophobia is not Ugandan. The US federal court has recognized that the acts of Lively and his accomplices in Uganda constituted crimes against humanity. Unfortunately, the case was dismissed on jurisdictional grounds, but the moral judgment was made—and that was all we wanted: for the truth, be recognized. What the evangelists were doing in Uganda was causing harm and has led to the death of some of the LGBTQ+ activist in Uganda.
We have used the U.S. Alien Torts Statute, although since the Kiobel v. Royal Dutch Petroleum case it has been much more restrictive. This makes it difficult for any non-American to sue an American in the U.S. Unfortunately, the case has not been widely publicized. But it does exist, it is public, and it shows the argument that we have put forward. In ten years, we feared that a new law might be coming.
Today, a new anti-homosexuality law has emerged, still under the influence of the same and new conservative American actors. We are considering another trial, but we are looking for other ways. Already in 2012, we had considered bringing this case before the African Court and the International Criminal Court (ICC). At the time, this was not possible, but now it seems that there are grounds for holding Uganda accountable.
We want the real perpetrators—like the Speaker of Parliament, the members of Parliament and others authorities—to be held accountable for the repeated systematic abuses and violations against Ugandan citizens, simply because of their sexual orientation and gender identity, when we are the ones who voted them into office to serve the national and protect the marginalised.
At the national level, we have taken all possible jurisdictions: courts of first instance, superior courts and now the Supreme Court. We won some cases on the right to privacy, but lost others, such as the ones on freedom of association. With the current anti-homosexuality act, we got a negative judgment except the right to health. Unfortunately, the death penalty was retained as the maximum punishment. We appealed that decision, and we are currently before the Supreme Court, and the Supreme Court, extremely conservative and religious, is influenced by conservative organisations like Family Watch International, who fund hate. So, the possibility of getting a positive ruling in the Supreme Court is hard, that is why we need to explore other mechanisms.
Uganda is a member of the African Union, and in April 2014 the African Commission on Human and Peoples’ Rights adopted resolution 275, which protects LGBTQ people from violence. Although it is not legally binding, it is an instrument that we must test and use for advocacy. We must act on a continental scale to defend the rights of all Africans.
We are soon entering an election year, which increases human rights violations. This creates an emergency: those responsible must be arrested and prosecuted. But this can only happen through collective mobilization and organization. We need to do a lot of work internally.
We have produced two reports documenting violations: the first in 2023, when the anti-homosexuality law was enacted, and the second more recently. Despite the threats of arrest, we continued our work because if we don’t talk, no one else will. We coordinate the strategic response team, our work has been mentioned in cases so it’s not in vain. To date, we have verified approximately 1,258 cases—out of more than 3,000 reported—of serious violations against LGBTQ people. You can imagine, this is the second edition that we produced, over a thousand cases, and the government is denying that they are there. The first edition was in 2023, when the anti-homosexuality act was a burning point. At the time, we were constantly threatened with arrests. We tried to mitigate that situation, the threats continued to go on, but we went ahead and produced a second edition, because we are not shy about the violation. Because if we don’t speak up, no one is going to be held accountable. We are looking to help victims and survivors.
Some victims had to flee the country for their physical and psychological safety to escape imminent arrests. We have even taken legal action against some landlords who have evicted LGBTQ people without paying them back. We want justice, but we also want to provide shelter for these people. We are building a legal foundation for the big cases to come.
We have also tested the East African Court of Justice. Results are still limited, but we are not giving up. There are efforts by African group already working on an action to be brought before the African Court of Human Rights.
Our struggle continues as long as justice is not done to our community, as long as our rights are not recognized, as long as homosexuality continues to be criminalized in Africa. Because homosexuality is African. What is not African is homophobia.
Thank you.
ÉTIENNE DESHOULIÈRES:
We will now finish the lecture with the intervention of Benjamin Moron-Puech, who is a professor of law at Lyon 2 University.
His intervention will echo the intervention of Antoine Idier, as, along with Ioannis from our team, they have been thinking for several weeks about whether it would be possible to sue the French authorities because of the criminalisation of homosexuality before 1982 in France.
As a Canadian colleague once said, it’s always a good idea to sweep your own house before going to your neighbour’s. Let’s ask ourselves whether, in France, the criminalisation of homosexuality can be subject to a lawsuit for liability?
BENJAMIN MORON PUECH
Good evening everyone. I’m very happy to be here. I would like to thank the organizing NGO for the invitation and Étienne Deshoulières. I would also like to warmly thank Ioannis Sokolakis, who helped me prepare this intervention and my friend Régis Schlagdenhauffen, who supported me with the social data. I will speak in French for my speech. I apologize for the people in the room who speak mostly English. I hope that on the screen you will be able to follow me. Otherwise, I can produce an abstract after the conference.
I am speaking as an academic who has been working for several years on the reparation of certain mass crimes, in particular those committed in France, in the past, on intersex people. Until now, we have talked more about the reparation of current crimes. Reparation for mass crimes in the past poses a number of additional challenges. So, my subject, as Étienne said, is to try to find out if there would be a legal way to hold the French authorities accountable for the criminalization of homosexuality. Concerning the temporal delimitation, I have stuck to the « homophobic framing », to use Antoine Idier’s words earlier, i.e. the period 1942-1982. Because there, at least, we have a clear text to discuss and so it’s a little easier to target the State’s responsibility. But I understand of course that the penalization has gone through many other executives, as Antoine Idier and Régis Schlagdenhauffen before him recalled. So, this responsibility of the State in law, as you know, can be of a criminal or civil nature. The criminal liability of a legal person is not possible before 1994, the new penal code. And even since 1994, the state cannot be touched.
We could consider attacking specific individuals. We could consider attacking natural persons working for the State. The problem is that the 1942 law criminalizing homosexuality in part has not been annulled, so that it is a law under which individuals have acted and, therefore, they can rely on the justifying fact known as the « authorization of the law » to be exonerated from all responsibility. So, it seems to me that the path of criminal responsibility cannot be retained.
Let us now turn to civil liability, which can be brought before a civil judge, an administrative judge or an international judge.
The civil judge has jurisdiction only in a very limited case of assault; Ioannis Sokolakis explored this possibility ahead of this paper; it is not reasonably conceivable. Therefore, in domestic law, we are left with only liability before the administrative judge and subsidiarily before the international judge. So, for the administrative judge, there are several types of liability: liability for fault and no-fault liability. And special responsibility for laws that are contrary to international treaties or the Constitution. And it is this avenue that I think it is interesting to explore in my speech.
So, let’s start by first looking at the question of the possibility of this action: is there a chance that it is well founded? And then, I will look at the questions of admissibility, in particular the issue of the statute of limitations, which is crucial when we are talking about facts that happened several decades ago. Finally, in view of the risk that, despite its merits, the action may be held to be inadmissible, civil liability will be examined before the international court.
So, on the merits of the action, starting with the responsibility for laws contrary to the Constitution– we will then see that for laws contrary to the treaty – the first idea we might have is to say to ourselves: « Wouldn’t this 1942 law be unconstitutional? » To answer this question, it is necessary to distinguish according to 3 periods because the constitutional regime changed: 1958 to 1982 (Fifth Republic), 1946 to 1958 (Fourth Republic) and 1942 to 1946 (French State / Third Republic).
So, on the first period, I could be asked: « But no, this is a law that predates 1958, how could it be unconstitutional? »This is to forget that the Constitutional Council has been seized of priority questions of constitutionality relating to texts prior to 1958 and that it has been able to say « no, no, it is possible: as long as the effects have occurred after 1958, it is good ». So we could say that for all the people who were prosecuted between 1958 and 1982, we are indeed under the 5th Republic, so it would be possible in this respect to act through a priority question of constitutionality to obtain the annulment of this law, and to have this law recognized as engaging the responsibility of the State because of its unconstitutionality.
The other difficulty that may arise would be: can we make QPC against laws that have been repealed? Indeed, this 1942 law was repealed in 1982. Here again, the Council said: « no problem, we can make QPC against repealed laws ».
So, the question that we could now ask ourselves is: is it really necessary to take all this step before the Constitutional Council to obtain the responsibility of the State for having voted for an unconstitutional law? Couldn’t we go directly before an administrative judge? The answer is no. Because the Council of State, when for the first time, in 2019, it recognized the responsibility of the State for laws that are contrary to the Constitution, did say: « Be careful, it has to go through the Constitutional Council. » A way for him to lock, and he locked in a 2nd way by saying that it should not be prescribed. We will see the question of prescription a little later.
So, as you can see, in terms of what happened after 1958, there is a possibility of taking action to have this law declared unconstitutional and therefore to characterize a fault on the part of the French State, a responsibility because of an unconstitutional law. But before 1958 – since the law also of course produced effects before 1958 – what can be done?
So, before 1958, in the second period from 1946 to 1958, as Ioannis Sokolakis pointed out in his preparatory work, there was the principle of dignity, which was a constitutional principle on which one could rely to argue unconstitutionality. This principle of dignity was established in 1994 by the Constitutional Council on the basis of a 1946 text: the preamble to the 1946 Constitution. Since this interpretation is retroactive, we can say that for all the convictions of homosexual persons over the period from 1946 to 1958 something should be done.
Finally, what about the last period, the one before 1946? Here, it is a little more complicated, but the Council of State, in the Hoffman-Glemane judgment of 2009 – a very important decision that considers the possibility of State responsibility for the deportation of Jews during the 2nd World War – will rely on a principle of dignity that would derive from the Declaration of the Rights of Man and of the Citizen as well as the important laws of the 3rd Republic. The problem is that, in the 3rd Republic – since between 1942 and 1946 we are fictitiously in the 3rd Republic – there is no hierarchy of norms. So, there is a law of 42 that is contrary to a principle, but we don’t know if this principle is really contrary to the law of 42, if it is above the law of 42. So it seems complicated to me to engage the responsibility of the State for an unconstitutional law, whereas under the 3rd Republic the notion of a Constitution which would be superior to a law is a bit flawed. So, in my opinion, if you want to do something more or less safe, you have to go between 46 and 82. So much for the responsibility of the State that could be engaged for laws contrary to the Constitution before the administrative judge. What about responsibility for laws that are contrary to international treaties?
For this responsibility, one naturally thinks first of the notion of crimes against humanity, present in various normative materials (1.) But there is also the Convention for the Protection of Human Rights and Fundamental Freedoms (2.).
So, for crimes against humanity, in my opinion, this is a red herring, because the Rome Statute, which has been discussed at length by my colleagues, does not enter into force until 2002, and it is clearly stated in Article 28 of the Rome Statute that it is not retroactive. Therefore, not all facts prior to 2002 can be classified as crimes against humanity. So, you could say to me: « But this notion of crime against humanity is much older! Wasn’t it present in the text that created the Nuremberg tribunal or at least is it not a kind of international custom? ». Of course, the notion of crimes against humanity is very present and defined in the agreement that made it possible to create the Nuremberg tribunal and to try Nazi criminals. Except that, in these Nuremberg agreements, what is targeted? These are the violations during the 2nd World War. However, with the 1942 law, we are not so much dealing with facts related to the 2nd World War, so we can hardly rely on this treaty.
Secondly, as far as international custom is concerned, one could certainly consider that there is a custom that prohibits crimes against humanity. The problem is that custom, in the hierarchy of norms, is below the law. So we can’t hold the legislator liable for not having respected a standard that is inferior to the law, so it wouldn’t work.
Let us not despair, we still have the Convention for the Protection of Human Rights and Fundamental Freedoms. However, it did not enter into force until 1974, in particular because there were a number of acts of torture in Algeria and they wanted to wait until decolonization was over to ratify this convention. So, for everything after 1974, we could consider holding the French State liable for a violation of the Convention. So, what violation of the convention could we consider? With Étienne, we discussed the possibility of mobilizing Article 5 of the convention, which is the article that prohibits arbitrary detention, before this conference. The only problem is that these are detentions that have been pronounced on the basis of court decisions for, possibly, homosexual people who would have been imprisoned. However, the Convention says that detentions must have been ordered by law, which seems to be the case. So, perhaps if we were to obtain the annulment of the 1942 law, there would no longer be any legal basis for these convictions and therefore we could say that there is no longer a legal route, but it is not extremely simple and not a very direct path.
In my opinion, there is a safer and simpler way than Article 5, and that is to start with the violation of the right to respect for private life, Article 8, possibly inhuman and degrading treatment, Article 3, and discrimination, Article 14. One could rely on the Dudgeon v. United Kingdom judgment, the first judgment to have considered that the criminalization of homosexuality was a violation of Articles 8 and 14. However, attention must be paid to the date of the facts, because the Court often specifies that the conduct of States must be judged in relation to the norms applicable on the day on which the conduct occurred. So, in Dudgeon, when did the facts date? They date from 76. However, 1976 is almost 1974, the date of entry into force of the Convention. So I think that we can consider that the Dudgeon decision can be applied as early as 1974 in France. So, on the basis of Dudgeon, one could consider that maintaining a law criminalizing homosexuality in France between 1974 and 1982 was a violation of the Convention.
This is good to know in relation to what was said above about liability for unconstitutional laws. Indeed, for the violation of the Convention, the Council of State does not require a prior declaration from the European Court of Human Rights that France has violated the Convention; he can do it on his own. He could therefore consider that the Convention had been violated of his own accord and he could of his own accord hold the State responsible. From there, we can say that we have avenues whose merits seem quite solid, either on the ground of a law contrary to the Constitution, or on the ground of a law contrary to the Convention.
However, one problem remains, that of the statute of limitations. And so, we come to the question of admissibility.
So, on the statute of limitations, we can think of two things to get around this obstacle: we can think of the statute of limitations of crimes against humanity, and then, if it doesn’t work, we can possibly think of a major rule of public law which is the four-year statute of limitations.
The statute of limitations of crimes against humanity was affirmed in France by a law of 1964. The problem is that we are talking about the statutes of limitations for criminal proceedings, not for civil actions. There are quite a few lower courts that have ruled in this direction, as Nicolas Chifflot recently reminded us in his article in the book recently published by Dalloz and directed by Delphine Porcheron: Réparation des crimes du passé. Just last February in Nice, for someone who had been sentenced to compulsory forced labour during the war, this was refused. Schematically, administrative judges say: « statutes of limitations only works for criminal cases, not for civil cases ». The Council of State has not yet ruled on this, but it is often said in doctrine that the Council of State is responsible for protecting the public finances of the State. So it seems very unlikely to me that he will do what the trial judges refused to do. In my opinion, in terms of the statute of limitations of crimes against humanity, things are off to a bad start.
There remains the four-year statute of limitations. So, the four-year statute of limitations is the fact that you have four years to act. Four years from when? Four years from the day you knew all the elements of your damage and the day you are able to attribute this damage to an authority.
It seems to me that from the moment you have been convicted, when you have served your prison sentence, you know very well who you have convicted, so it seems to be off to a bad start in terms of the four-year statute of limitations. So could we not say that the rules of French law on the four-year statute of limitations are contrary to international law, which would amount to (finally!) raising the question of the civil liability of the French State before the international judge?
We return here to the Convention for the Protection of Human Rights and Fundamental Freedoms, which allows for the (« civil ») liability of member States in the event of a violation of the Convention. This responsibility could be engaged in the field, in my opinion, first and foremost in the procedural aspect of article 3, which prohibits torture and other inhuman and degrading treatment, which obliges States to react to such acts, including through criminal proceedings. However, a distinction should be made according to the subject of the claim submitted to the administrative courts and which has failed: a claim for compensation or other.
As regards claims for damages, the obstacle would therefore be that of the four-year statute of limitations. This four-year limitation period has been challenged twice before the European Court of Human Rights.
The first time was in the case of the displaced people of the Creuse, those people from overseas who were taken more or less by force with more or less the consent of their parents to repopulate the Creuse. These people have organized themselves, when they reach adulthood, to know the reality of their situation. They sued the French state; Most of these actions failed. They brought the case before the European Court of Human Rights and were dismissed by a decision of inadmissibility that was never made public on 15 December 2011.
Nevertheless, 11 years later, in another case of sexual violence (Loste v. France), the European Court of Human Rights condemned France for refusing to accept a liability action against the French State. The action had previously failed on the four-year statute of limitations before the administrative judge. While the European Court condemned France, it nevertheless justified its decision by saying that there were very special circumstances. This suggests that, in other less specific circumstances, they would not make the same decision. When we look at these circumstances, we realize that the person had taken steps to try to find out about his file, to try to understand what had happened because there were holes in his story. This does not seem to be the case for people convicted of homosexuality who had a clear decision, which they could blame on the authorities. So it seems to me that, on the prescription side, it is quite difficult, at least if we are looking for money, because that is what the four-year limitation period applies to above all.
On the other hand, if we are looking for something other than money (such as apologies, symbolic recognition, the creation of places of memory), then the four-year statute of limitations does not seem to apply. However, we are then in the dark about the statute of limitations. Let us imagine that for such a request, the Council of State nevertheless declares it time-barred, then it seems to me that something could be done before the European Court. It should also be remembered that, in the Hoffmann-Glemane judgment that I cited earlier, the Council of State said that we could not limit ourselves to financial measures for crimes against humanity and that other types of reparations, including symbolic recognition, were necessary. Would a decision before the Constitutional Council seek, for example, to obtain the annulment of this law in a dispute concerning the deletion of the criminal record, or a dispute that sought to demand an apology from the French State, be sufficient? Could we not, in the context of this dispute, obtain both the recognition and the annulment of this shameful law of 1942?
In any case, this is a prospect that deserves to be examined, especially in the context of the debates that will take place on 5 May in Parliament. Because the question is not only political. The question of reparations is also a legal one, as I tried to show you at the end of the day. Thank you.
ÉTIENNE DESHOULIÈRES:
Thank you very much for this very brilliant presentation. I admit that I worked alongside Ioannis, but I did not yet know the conclusions of Benjamin, which seem to me absolutely brilliant and which paves the way for the future and for action, because we might be in a university where we have produced knowledge, but this knowledge is not intended to remain only in books or possibly in the minds of students. No, this knowledge that we have produced, it is intended to be mobilized to take action, to hold accountable those who persecute homosexuals.
So I would like to end with four lines of action:
First, on June 10, I will plead against Éric Zemmour in a case where he denied the deportation of homosexual persons from France during the Second World War ever took place. This deportation of homosexuals constitutes a priori a crime against humanity. It would therefore be necessary for the Paris correctional court to consider this deportation as a crime against humanity in order to convict Éric Zemmour. And it would be the first time that a French court would recognize the existence of a crime against humanity, precisely for the persecution of homosexuals.
There is this action that we will undertake in the coming weeks against France to have it recognize that the criminalisation of homosexuality in France before 1982 was a crime or at least constituted a fault of the state of France with respect to the Constitution and international norms.
There is also the possibility of a communication to the OTP of the International Criminal Court. As a French organization, we can produce knowledge that we make available to our partner organizations, and it is our partner organizations that will decide whether or not to file a complaint with the International Criminal Court because of the persecution they are facing today in their country.
And then there’s the issue of universal jurisdiction. And here I’m thinking more specifically about anal testing. Anal tests, which are considered by the UN as acts of torture and many jurisdictions, including the French courts, can judge a crime of torture, even if this act would have been committed abroad by a foreigner and on a foreigner. This is the definition of universal jurisdiction. And so, in the near future, if the elements are gathered, if the victim gets for example a refugee status in France and has been a victim of an anal test, then it would be possible in France to initiate an action for torture…
This concludes today’s conference.
CAMILLE SCHALTENBRAND:
Just one last word, I want to say a big thank you to our great team of interns: Léane, Alessandra, Oriane and Ioannis. Thank you very much for your work.
[1] UN. Doc. A/HRC/38/43, §§ 48-49.
