The Protection of LGBT+ rights in International Criminal Law

Sammanfattning: Sexual and gender minorities have historically and globally been vulnerable to persecutory and discriminatory acts. Today, sixty-eight United Nations member states criminalize consensual same-sex sexual conduct and nine states expressively criminalize the gender identity/expression of transgender people. These discriminatory laws are exposing millions of individuals to the risk of arbitrary arrest, prosecution, and imprisonment. In at least five of these states, LGBT+ conduct is punishable by death. The legal persecution of LGBT+ people violates international human rights law. However, there remains a debate whether the rights of LGBT+ people are equally protected under international criminal law. It is a controversial and highly debated issue if the criminalization of LGBT+ people can be considered a crime against humanity of persecution under Article 7(1)(h) of the Rome Statute. This thesis examines if LGBT+ people can be considered a protected group under Article 7(1)(h) and thus internationally protected from legal persecution. The research is conducted through a critical examination of a number of arguments arguing for the inclusion of LGBT+ people under the three different protected grounds of “gender”, “political” and “other grounds that are universally recognized as impermissible under international law”. Additionally, with a purpose of assessing and furthering the rights of all LGBT+ people in international criminal law, the examined arguments are analysed from a queer critical perspective. The thesis concludes that there are valid and strong arguments for the inclusion of some LGBT+ people under all of the examined protected grounds in Article 7(1)(h). However, as revealed through the queer critical analysis, the protection of all LGBT+ people, especially non-binary people and intersex, remains dubious.