On the International Day Against Homophobia, Biphobia and Transphobia, ILGA Asia and the International Commission of Jurists (ICJ) condemn the death penalty under any circumstances, including as a punishment for consensual, same-sex sexual conduct in Asia, and call for its unconditional abolition.
The use of criminal sanctions, including capital punishment against lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) individuals is rampant in Asia, especially against those from disadvantaged socio-economic backgrounds and/or belonging to racial, ethnic or religious minority groups. Moreover, limited access to legal aid and legal representation, as well as bias within the criminal justice system have a detrimental impact on LGBTIQ people’s ability to be guaranteed a fair trial. As of today, 70 countries around the world still criminalize consensual same-sex sexual conduct, including 22 Asian countries. Furthermore, 11 countries – Afghanistan, Brunei Darussalam, Iran, Mauritania, Nigeria, Pakistan, Qatar, Saudi Arabia, Somalia, the United Arab Emirates and Yemen – of which 8 are in Asia, retain the death penalty as a possible punishment for same-sex sexual conduct.
Laws criminalizing real or purported engagement in consensual, same-sex sexual relations, including extramarital and premarital sex contravene international human rights law and standards, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Each of these core global human rights instruments affirm the universal and inalienable rights to human dignity, justice, equality and non-discrimination.
“The retention and imposition of the death penalty for consensual, same-sex sexual conduct is a violation of the right to life and of the right to freedom from cruel, inhuman and degrading treatment or punishment. Furthermore, legal provisions criminalizing consensual same-sex sexual relations result in violations of a number of other human rights, including the rights to dignity; equality, including equality before the law and equal protection of the law; non-discrimination; liberty and security of person; privacy; opinion and expression; association and peaceful assembly. They may also often lead to denials of the right to access health services and care without discrimination,”
Daron Tan, Associate International Legal Adviser at the International Commission of Jurists (ICJ).
While ILGA Asia and the ICJ oppose the death penalty unreservedly under any circumstances, international human rights law is clear that, even those few States that have not yet abolished capital punishment, may only impose death sentences, let alone carry out executions, except for “the most serious crimes, and then only in the most exceptional cases and under the strictest limits” and “in a non-arbitrary manner”. The expression “the most serious crimes” does, obviously, not include consensual, same-sex sexual conduct, as under international human rights law consensual same-sex sexual relations should not be criminalized at all.
In 2017, the UN Human Rights Council passed a resolution condemning the imposition of the death penalty for consensual same-sex sexual conduct. The resolution urged member States that continue to retain the death penalty to ensure that it is not “applied arbitrarily or in a discriminatory manner”.
“We reiterate our position that same-sex sexual conduct should be decriminalised, and the death penalty should be abolished under any circumstances. Further, we urge authorities in all the countries that continue to retain the death penalty to introduce a moratorium on its use, as a necessary first step towards the abolition of the death penalty. Lastly, we call on the authorities to ensure that all necessary safeguards are in place in order to ensure access to legal representation and fair trials for those currently facing the death penalty in connection with their real or purported engagement in consensual same-sex sexual conduct,”
Ajita Banerjie, Research Officer at ILGA Asia.
AJAR echoes the call to abolish death penalty under any circumstances, read the full joint statement below.