A/HRC/19/41
44.
In at least 14 countries, the legal age of consent differs for homosexual and
heterosexual relationships, which treaty bodies have held to be discriminatory.76
B.
Death penalty
45.
In at least five countries the death penalty may be applied to those found guilty of
offences relating to consensual, adult homosexual conduct. In addition to violating rights to
life, privacy and non-discrimination, application of the death penalty in these circumstances
violates article 6 of the International Covenant on Civil and Political Rights, which
provides that, in countries that have not abolished the death penalty, a “sentence of death
may be imposed only for the most serious crimes”.77 The Commission on Human Rights
and the Human Rights Committee have confirmed that use of the death penalty for nonviolent acts, including sexual relations between consenting adults, constitutes a violation of
international human rights law.78
46.
The Special Rapporteur on extrajudicial executions has noted that “death sentences
may only be imposed for the most serious crimes, a stipulation which clearly excludes
matters of sexual orientation.”79 Commenting on the situation in parts of Nigeria, the
Special Rapporteur stated that, “in relation to sodomy, the imposition of the death sentence
for a private sexual practice is clearly incompatible with Nigeria‟s international
obligations.”80 Addressing the response that there was a de facto moratorium on executions,
the Special Rapporteur stated, “the „mere possibility‟ that it can be applied threatens the
accused for years, and is a form of cruel, inhuman or degrading treatment or punishment.
Its status as a law justifies persecution by vigilante groups, and invites abuse.”81
C.
Arbitrary arrest and detention
47.
The Working Group on Arbitrary Detention has stated that detaining someone for
offences relating to sexual orientation or gender identity, including offences not directly
related to sexual conduct, such as those pertaining to physical appearance or so-called
“public scandal”, breaches international law. In 2002, the Working Group considered a case
involving 55 men arrested at a discotheque and charged with “debauchery” and “social
dissension”. It concluded that the arrests were discriminatory, in violation of articles 2 and
26 of the International Covenant on Civil and Political Rights, and that the detention was
arbitrary.82 The Working Group has since reaffirmed its position on several occasions.83
76
77
78
79
80
81
82
83
See the concluding observations of the Committee on the Rights of the Child on Chile
(CRC/C/CHL/CO/3), para. 29; the United Kingdom of Great Britain and Northern Ireland: Isle of
Man (CRC/C/15/Add.134), para. 22; and the concluding observations of the Human Rights
Committee on Austria (CCPR/C/79/Add.103), para. 13.
See the concluding observations of the Human Rights Committee on the Sudan
(CCPR/C/SDN/CO/3), para. 19; and E/CN.4/2000/3, para. 57.
See Commission on Human Rights resolutions 2002/77, para. 4 (c); 2003/67, para. 4 (d); 2004/67,
para. 4 (f); and 2005/59, para. 7 (f). See also the concluding observations of the Human Rights
Committee on the Sudan (CCPR/C/SDN/CO/3), para. 19.
E/CN.4/2000/3, para. 57.
E/CN.4/2006/53/Add.4, para. 37.
A/HRC/8/3/Add.3, para. 76.
E/CN.4/2003/8/Add.1, opinion no. 7/2002 (Egypt).
See, for example opinions No. 22/2006 (Cameroon) (A/HRC/4/40/Add.1) and No. 42/2008 (Egypt)
(A/HRC/13/30/Add.1).
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