Afghanistan evacuation … The 40th anniversary of a key ECHR case

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Afghanistan evacuation: First group of LGBT people to be rescued from the Taliban arrives in UK

The group included activists and students who have spoken out against the persecution they face.

A surge in refugees from Afghanistan has been taking place since the Taliban took Kabul in August (Photo: STR/AFP)

The first group of LGBT people to be rescued from Afghanistan since its fall to the Taliban in August has arrived on British soil.

Details of timings, locations, and the route out of Afghanistan have been concealed to protect the safety of those evacuated. But they include LGBT activists and students who have spoken out against the persecution they face.

The group of 29 people arrived safely on Friday, 29 October following international pressure to save LGBT Afghans. They had been subjected to a regime that promised to kill LGBT people through stoning or a practice known as “wall-toppling” – crushing under rubble. Others had been shot dead by the Taliban.

One gay man who spoke a few days after the Taliban seized Kabul said his boyfriend had immediately been captured by the extremists. “They took him away – nobody knows where – and then they kill him,” he said. “Afterwards they said they brought the body [back] and cut his body into pieces to show the people that this is what we do with gay people.”

Several organisations, including Stonewall, Canadian organisation Rainbow Railroad and The Aman Project, which supports refugees in the Middle East, worked with the British Government to organise the airlift. For two months, the Foreign Office, Home Office and the Ministry of Defence collaborated to enable the evacuation.

Tess Berry-Hart of the Aman Project said: “We are absolutely delighted that the first LGBTQ Afghans have arrived on British soil safely … Sadly, many others are still trapped in Afghanistan in danger of being tortured and killed, and we hope today will herald the start of many more safe routes to asylum for LGBTQ people by the international community.”

Efforts are under way to bring more sexual and gender minorities out of the country and to assist them in safe passage to countries in which homosexuality is not criminalised.

Liz Truss, the Foreign Secretary and Minister for Women and Equalities, said: “We played a key role getting these people out and will continue to do all we can to help at-risk Afghans leave the country.”

The Executive Director of Rainbow Railroad, Kimahli Powell, added: “Since the fall of Kabul, Rainbow Railroad has been leading efforts to find safety for LGBTQI+ Afghans facing grave danger. In partnership with others, we have directly relocated dozens of persons to safer countries where they can live lives free of state-directed persecution.

Rainbow Railroad is thankful for the strong advocacy of Stonewall UK and for the UK Government, which helped facilitate the arrival of these LGBTQI+ persons. This is just the beginning of our efforts to help hundreds of LGBTQI+ individuals we are supporting in Afghanistan relocate to safety.”

Nancy Kelley, Chief Executive of Stonewall, said: “Throughout this crisis, Stonewall and our supporters have called for international support for LGBTQ+ Afghans, and for their recognition as a priority group for resettlement in the UK.

Today, we are proud that our campaigning and collaboration has resulted in the first group of LGBTQ+ Afghans arriving here in the UK to resettle and rebuild their lives, and for LGBTQ+ people to be recognised as a priority group for resettlement.”

The group who arrived will now be supported by further organisations including Micro Rainbow, which helps LGBT refugees settle in this country. The Government said that more vulnerable LGBT Afghans would be likely to arrive in the next few months, and will be eligible for the Afghan Citizens Resettlement Scheme.

This gives priority to and protection for a range of groups and individuals including those who have helped Britain in Afghanistan, human rights defenders, and members of oppressed groups such as women, girls, and LGBT people.

The 40th anniversary of a key ECHR case

The fight for LGBT+ persons to enjoy their human rights has not been an easy one. 40 years ago, Jeffrey Dudgeon found justice at the European Court of Human Rights (ECHR).

Back in 1981, the Strasbourg Court was the first international body to rule that laws criminalising sexual orientation violate human rights, namely the right to respect for private and family life. Its ground breaking judgment led to the decriminalisation of homosexuality in Northern Ireland, the United Kingdom and Europe at large, recognising the human rights to millions of people.

The case – Dudgeon v The United Kingdom, 1981

In 1976, Jeffrey Dudgeon lodged an application with the European Commission of Human Rights complaining about the total prohibition of male homosexual acts in Northern Ireland, enforced through a law regulating all acts of buggery and gross indecency between males. This law provided the basis for police raids on the homes of gay men, who were subjected to extensive investigation and the threat of prosecution. Jeffrey had been questioned about his sexual activities by the police, who had also taken and kept diaries and personal correspondence from his home. In 1977, he was informed that a decision had been taken not to prosecute and the papers taken from him by the police were returned. Jeffrey complained that the law prohibiting male sexual acts had a “chilling or restraining effect on the free expression of his sexuality”.

On 22 October 1981, the European Court of Human Rights upheld Jeffrey’s complaint that the criminalisation of homosexual acts between consenting adults in Northern Ireland amounted to an unjustified interference with his right to respect for private life under Article 8 of the European Convention on Human Rights.

Impact of the case in the United Kingdom, Europe and beyond

This judgment was the first case to be decided at the European Court of Human Rights in favour of LGBT+ persons’ rights.

It led the UK Parliament to partially decriminalise sexual acts between men in Northern Ireland in 1982. But it also paved the way for the decriminalisation of homosexuality in Europe, as any law criminalising homosexual behaviour between consenting adults in Council of Europe member states would subsequently be considered a violation of Article 8 (right to respect for private life) under the human rights convention. 

The case underpinned other judgments by the Strasbourg Court against states that enforced a total prohibition of homosexual acts. However, it took until 2014 (Northern Cyprus) to achieve the complete decriminalisation of homosexual acts in all Council of Europe member states.

The Dudgeon case also shaped jurisprudence outside Europe – for example, in the United States, where it was cited in the US Supreme Court’s Lawrence v Texas (2003) decision which found anti-sodomy laws in 14 states to be unconstitutional in the case.

Importance and relevance of the ECHR for the protection of LGBT+ persons’ human rights

The Dudgeon judgement was the first, but not the only case where the European Court of Human Rights made major decisions positively impacting the human rights of LGBT+ persons in Europe.

The Court has recognised:

  • the right of transgender persons to legal gender recognition without the requirement of sterilising surgery or treatment;
  • the right to legal recognition of same-sex relationships;
  • the right for same-sex couples to access civil unions when they are made available to different sex-couples;
  • non-discrimination with regard to second-parent adoption in a same sex-relationship;
  • the protection of freedom of assembly and freedom of expression, particularly for vulnerable groups including LGBT+ persons; and
  • the recognition of homophobic hate speech and homophobic hate crimes.

The Court considers the European Convention on Human Rights as a “living instrument”, which is “interpreted in the light of present-day conditions and of the ideas prevailing in a democratic society”. There are areas in which the Court’s case-law is still evolving, such as on equal access to marriage, the elimination of discrimination in immigration and asylum, non-discrimination on the grounds of sex characteristics and gender identity, and the depathologisation of transgender identities. There is still a long way to go in the fight for equal rights.

From the Pride March 1976, organised mainly by the Campaign for Homosexual Equality

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