Persecution based on sexual orientation or gender identity - A crime under international law?

Abstract: People of sexual and gender minorities have for decades been discriminated, harassed and prosecuted in large parts of the world due to their sexual orientation or gender identity. Although the acceptance for these groups has increased over the past couple years, the problems still persists. Today, nearly 70 United Nation member states criminalize consensual same-sex sexual acts between adults, and at least six states implement death penalty for the same acts. Ever since the Rome Statute entered into force there has been a continuous debate on whether or not the LGBT+ community is protected from persecution under international criminal law. The paper aims to analyse in what ways the LGBT+ community can find protection from persecution under the Rome Statute, by looking at article 7(1)(h) of the Rome Statute, as well as other international courts and organs. The study examines the most relevant arguments for including the LGBT+ community under article 7(1)(h) of the Rome Statute. The term “gender” and “other grounds that are universally recognized as impermissible under international law” will be studied to determine if the community could successfully find protection within one of these groups. Additionally, the paper will investigate how other international courts view the question of protecting the LBGT+ community under international law. It will further be examined to what extent the International Criminal Court can take lead from the judgements made by these courts. The study concludes that the topic will continue to be highly topical until the International Criminal Court rules in the matter. While considering the uncertainty, several arguments point to the fact that people of sexual minorities are likely to find protection from persecution under article 7(1)(h) of the Rome Statute, whereas people of gender minorities are not as likely to find the same protection.