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“Corrective” Rapes Be Addressed by Combining the Legal Frameworks of LGBT Rights and Women’S Rights?

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“Corrective” Rapes Be Addressed by Combining the Legal Frameworks of LGBT Rights and Women’S Rights? Master’s Thesis International and European Law – Human Rights Law – 2016-2017 To what extent can the issue of “corrective” rapes be addressed by combining the legal frameworks of LGBT rights and women’s rights? Thesis by Rati Gujadhur Snr: 2005082 Submitted in partial fulfilment of the requirements for the LL.M International and European Law Supervised by Mr. dr. A.K. Meijknecht Tilburg Law School June 2017 1 Master’s Thesis International and European Law – Human Rights Law – 2016-2017 I would like to express my sincerest gratitude to my supervisor Anna Meijknecht for her guidance and support, I would like to thank my parents and my brother for their unconditional love and support, And my friends who kept supporting me and encouraging me throughout this year! 2 Master’s Thesis International and European Law – Human Rights Law – 2016-2017 TABLE OF CONTENTS Introduction 8 I. Issue of ‘’corrective’’ rapes in South Africa 13 II. How can LGB rights help with the issue of “corrective” rapes in South Africa? 17 2.1. LGBT rights in the international legal framework (international human rights law) 17 2.1.1. First resolution (UN Res 17/19) 18 2.1.2. Anti-LGBT violence 19 2.1.3. Alarming nature of this late resolution 19 2.1.4. Report (A/HRC/19/41) 20 2.2 .Born Free and Equal Booklet – published by the OHCHR 22 2.2.1. The protection of individuals from homophonic and trans-phobic violence 23 2.2.2. The prevention of torture and cruel, inhuman and degrading treatment of LGBT persons 25 2.2.3. The decriminalization of homosexuality 26 3 Master’s Thesis International and European Law – Human Rights Law – 2016-2017 2.2.4. The prohibition of discrimination based on sexual orientation and gender identity 28 2.2.5. The obligation to respect freedom of expression, association and peaceful assembly 31 2.3. LGBT rights in the African legal framework 33 2.4. LGBT rights in the South African legal framework 37 2.4.1. Establishing LGBT rights in South Africa 37 2.4.2. The issue: the non-application of the laws – is South Africa following its obligations as a state regarding the protection of LGBT individuals? 39 2.4.2.1. The obligation to decriminalize homosexuality 39 2.4.2.2. The obligation to respect freedom of expression, association and peaceful assembly 40 2.4.2.3. The obligation to protect individuals from homophobic and trans-phobic violence 40 2.4.2.4. The obligation to prevent torture and cruel, inhuman and degrading treatment of LGBT persons. 41 2.4.2.5. The obligation to protect LGBT people from discrimination 44 4 Master’s Thesis International and European Law – Human Rights Law – 2016-2017 III. How can women’s rights help with the issue of ‘’corrective’’ rapes in South Africa? 46 3.1. Women’s rights in the international legal framework 46 3.2. Women’s rights in the African legal framework 49 3.3. Women’s rights in South Africa 54 IV. How can a combination of LGBT rights and women’s rights may help solve the issue of ‘’corrective’’ rapes? 58 4.1. Combining LGBT rights and women’s rights in the international legal framework. 58 4.2. Combining LGBT rights and women’s rights in the African legal framework. 60 4.3. Combining LGBT rights and women’s rights in the South African legal framework 61 4.3.1. Application of the South African Constitution to “corrective” rapes 61 4.3.2. Qualifying ‘’corrective’’ rape as a hate crime 63 5 Master’s Thesis International and European Law – Human Rights Law – 2016-2017 Conclusion 67 Bibliography 71 6 Master’s Thesis International and European Law – Human Rights Law – 2016-2017 GLOSSARY ACHPR African Commission on Human and Peoples’ Rights CEDAW Committee on the Elimination of all forms of Discrimination against Women ECOWAS Economic Community of West African States HRC Human Rights Committee ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights LGBT (QI) Lesbian Gay Bisexual Transsexual (Queer Intersex) OAU Organisation of African Unity OHCHR Office of the High Commissioner of Human Rights UN United Nations UNGA United Nations General Assembly UNHRC United Nations Human Rights Council 7 Master’s Thesis International and European Law – Human Rights Law – 2016-2017 INTRODUCTION “Some say that sexual orientation and gender identity are sensitive issues. I understand. Like many of my generation, I did not grow up talking about these issues. But I learned to speak out because lives are at stake, and because it is our duty under the United Nations Charter and the Universal Declaration of Human Rights to protect the rights of everyone, everywhere.” — UN Secretary-General Ban Ki-moon to the Human Rights Council, 7 March 2012 The United Nations (UN) was established with the aim to maintain national peace and security, thus it will take all the necessary and non-violent steps to settle disputes that might lead to a breach of the peace. Unlike its predecessor, the League of Nations, the United Nations gives more importance to Human Rights, by establishing the Office of the United Nations High Commissioner for Human Rights (OHCHR). The OHCHR represents the world’s commitment to universal ideas of human dignity. Since taking office in 2014, the Commissioner’s priorities, expected accomplishments and strategies have been set out in the OHCHR Management Plan 2014-20171. In the section regarding implementation at the national level, of the Management Plan, we observe that one of the thematic priorities regards enhancing equality and countering discrimination with a focus on: women; racial and religious discrimination; migrants; persons with disabilities; indigenous peoples; minorities; and lesbian, gay, bisexual and transgender (LGBT) persons2. This could be due to the presence of inequality and all forms of discrimination, which are often manifested in xenophobia and hate crimes. The international human rights organizations, specifically the Committee on the Elimination of all forms of Discrimination against Women (CEDAW) has expressed concern on the situation of 1 OHCHR Mission Statement: The mission of the Office of the United Nations High Commissioner for Human Rights (OHCHR) is to work for the promotion and protection of all human rights for all people; to help empower people to realize their rights and to assist those responsible for upholding such rights in ensuring that they are implemented. 2 OHCHR intends to contribute to this change by: Advocating for increased compliance with international norms and standards relating to persons deprived of their liberty, including those pertaining to women and specific groups, such as: migrants; asylum-seekers; refugees; children, including children of incarcerated parents; persons with disabilities; lesbian, gay, bisexual, transgender and intersex (LGBTI) persons; persons on death row; and persons serving life sentences. - OHCHR Management Plan 2014-2017 – Working for your rights 8 Master’s Thesis International and European Law – Human Rights Law – 2016-2017 women in South Africa who are being victim of gender based violence due to being lesbian3. This brings us to the subject of South Africa itself as a legal entity in international law. The South African legal system can be described as a hybrid creation; similar to its previously colonized counterparts we see the influence of the colonizing countries. South Africa being colonized by the Portuguese, Dutch and the British, has seen its legal system being highly influenced by two uncodified systems of law: the roman-Dutch civil law and the English common law. Like its influencers, South African Law is also uncodified4. If we go further down the timeline of the country’s history, we can establish that its system of law has radically changed, going from the Apartheid, a system based on oppression, towards a more just and equitable society5. South Africa was one of the 51 founding members of the United Nations in 1945, but due to the Apartheid the country was suspended from participating in the UN. In 1994 it was re-admitted following its transition into a democracy. The government declares to be faithful to the purposes and principles of the United Nations Charter as it strongly advocates a rules-based multilateralism6. Unfortunately, South Africa may look like the most progressive country in Africa regarding human rights; some major fundamental issues remain untouched by the government. Nevertheless, in 2006 the South African government legalized gay marriage, becoming the first African country to do so. Although it was a positive move towards the promotion of human rights in the country, it didn’t mean that South Africa itself was progressive enough for gay people to live their lives entirely without fear. In its report on “corrective” rapes, published in December 2011, Human Rights Watch, states that over the past decade activists in South Africa have recorded and analysed dozens of incidents of sexual and physical violence against lesbians and transgender men, including rape and murder7. Corrective rape is a hate crime aimed at converting lesbians to heterosexuality it is an attempt to 'cure' them of being gay. The term was 3 Concluding observations of the Committee on South Africa (CEDAW/C/ZAF/CO/4), para. 39 4 CG Van der merwe and JacquesE Du Plessis, Introduction to the Law of South Africa (The Hague : Kluwer Law International, cop 2004 2004) 5 Ibid. 6 Ibid. 7 “We’ll show you you’re a woman” – Violence and discrimination against black lesbians and transgender men in South Africa – report by the Human Rights Watch, December 2011 9 Master’s Thesis International and European Law – Human Rights Law – 2016-2017 used in South Africa in the early 2000s when charity workers first noticed a rise in the number of these types of attacks8.
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