Tag Archive: Geneva Convention

European Court of Justice Grants Asylum Rights to Persecuted Homosexuals

Countries that criminally prosecute homosexual behavior have received a ruling from the European Court of Justice that the European Union will protect individuals fleeing from those countries. A ruling concerning homosexual nationals from Sierra Leone, Uganda, and Senegal have reassured any individual fearful of prosecution because of his/her sexual orientation can seek asylum in the European Union.

The European Court of Justice’s ruling  explained that Directive 2004/83/ECwhich maintains the minimum standards for a person to be considered a refugee and references the Geneva Convention, applies to any homosexual who is persecuted in his/her country. The Directive states a refugee is a person 

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

The Netherland’s Supreme Court requested  that the European Court of Justice give a preliminary ruling to clarify whether homosexuals were included in the definition of the phrase “membership of a particular social group.”  The Netherland’s Supreme Court also requested that the European Court of Justice clarify which type of appeal might fall within a receiving host government’s classification of a person as a refugee. 

 The Court’s ruling sets out that a person’s sexual orientation is a trait that is fundamental to the identity of an individual and no one should be required to renounce such an important part of himself/herself.  Explaining that since these criminal statutes target homosexual behavior this supports a finding that homosexuals form a separate group within the definition of a refugee from the Directive

The Court next explained that being a part of that group alone does not secure refugee status if the persecuting country has laws against homosexual behavior without a showing of a serious violation of a human right. Essentially warning potential applicants that not all violations of a right of a homosexual can reach the threshold to be granted asylum in the European Union. Specifically, the press release from the European Court of Justice states

the mere existence of legislation criminalising homosexual acts cannot be regarded as an act affecting the applicant in a manner so significant that it reaches the level of seriousness necessary for a finding that it constitutes persecution within the meaning of the directive. However, a term of imprisonment which accompanies a legislative provision which punishes homosexual acts may constitute an act of persecution per se.

This ruling clarifies the policy in the European Union for granting and denying asylum for any homosexual from his/her country while also ensuring that all of the Member States follow these basic standards.


Who Is Not Protected By the Geneva Conventions

Season 4 of “Chuck” premiered on September 20, 2010.  The episode titled “Chuck Versus the Anniversary” began with the title character attempting to resume a civilian lifestyle after three seasons of working with the CIA and NSA.  During this episode, two active agents of the United States Intelligence Community are kidnapped and taken to Russia.  The agents awake in the basement of a former KGB facility facing the threat of torture from a Russian agent portrayed by Dolph Lundgren.  Although the two American operatives are rescued by the title character before any harm comes to them, the possibility of torture raises a question about who is protected by the Geneva Conventions.

The Geneva Conventions are a series of treaties which set standards of international law and treatment of prisoners of war.  The protocols, adopted in 1949, protect sick and wounded soldiers, prisoners of war, civilians, and occupants of a territory.  The Conventions protect civilians, medical and religious personnel and the wounded on land and sea.

The definition of “prisoner of war” is outlined in the third Convention of 1949.  A “prisoner of war” is outlined in Article IV.  The person in question must fall under one of the categories including members of the armed forces, support staff of the armed forces, occupants of territories, and militias.

In the episode, neither American agent admits to being an American soldier.  This lack of association with American military forces prevents both agents from qualifying for prisoner of war classification under Article IV of the Third Convention.  Although torture is not socially acceptable by the international community, the laws requiring humanitarian treatment of soldiers are not extended to those engaged in espionage, even if both torturer and victim are citizens of nations which are parties to the Conventions.

The American agents were rescued before the Russians return.  By not showing any scenes of torture, NBC can ensure the show appeals to younger audiences and is not met with the criticisms about its depiction of torture that faced “24” during its time on television.  Jack Bauer’s use of torture and the realistic depiction of torture were a general  focus of articles about the show.  The Parents Television Council consistently called the show “Worst Show of the Week” due to its depiction of torture.

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