The Emerging Crime of Persecution Based on Sexual Orientation

Abstract

This Article argues that persecution based on sexual orientation constitutes a crime against humanity under international law. Unlike other scholarship that has focused on the definition of crimes against humanity in the 1998 Rome Statute for the International Criminal Court—which does not explicitly enumerate “sexual orientation” as a protected classification—this Article looks to customary international law made up of the practices of states. Here, diligent research has revealed that between 1998 and 2022 no less than 107 states have enacted laws or revised existing laws to decriminalize sexual orientation and/or categorize sexual orientation as a protected classification from discrimination, in addition to the sizable number of states that already did so before 1998. Similarly, since 1998 a plethora of UN and regional resolutions along these lines as well as NGOs as a subsidiary basis for customary law formation have solidified sexual orientation as a protected classification today. In short, the legal landscape has changed dramatically in the intervening years since the Rome Statute went into effect, and now argues more powerfully for the inclusion of sexual orientation as a protected classification from persecution under international law. Finally, because persecution is a crime against humanity, all states have jurisdiction to prosecute the perpetrators or hold them civilly accountable. This Article hopes to provide the hard, empirical data and the sound legal reasoning on which such arguments can be made.

Keywords: Crimes against humanity, Sexual orientation, Persecution, Discrimination, International criminal law, International customary law, Decriminalization of homosexuality, Rome Statute, Sexual minorities, Protected classification, Human rights, Universal jurisdiction

JEL Classification: K33, K38