By: D’Andre Gordon

Impunity Watch Staff Writer

Kingston, Jamaica — In 2006, Times dubbed Jamaica “The Most Homophobic place on Earth.” Seven years later, Dwayne Jones, a 16-year-old transgender woman was brutally murdered at a party for wearing clothing considered feminine. Dwayne Jones’ tragic death sparked worldwide condemnation and certainly did not help the island state of Jamaica shake the label Times assigned years earlier. Dwayne’s murder was not an isolated incident, but part of a long history of state-sponsored violence against LGBTQ individuals.

At minimum, the violence is impliedly supported by the state through a lack of judicial enforcement against perpetrators of crimes against LGBTQ people. Many of the heinous acts of violence against LGBTQ people in Jamaica stem from homophobic legislation originating in the colonial era known as The Offences Against the Person Act 1864, in combination with religious zealotry.

Unfortunately, it is incredibly difficult and arguably impossible for LGBTQ people to seek relief when they suffer harm based on their sexual identity because the “savings clause” in the Jamaican Constitution effectively bars discriminatory provisions in The Offences Against the Person Act 1864 from constitutional scrutiny. As such, Plaintiffs Gareth Henry and Simone Edwards brought a case against Jamaica at the Inter-American Commission on Human Rights. Plaintiffs alleged The Offences Against the Person Act 1864 violated the principle of non-discrimination and equality before the law, right to life and to humane treatment, right to privacy, right to freedom of thought and expression, right to family life, right to freedom of movement and residence, right to participate in government, and right to health. This Act prohibits same-sex sexual activity and criminalizes acts of “buggery” and “gross indecency.” Consequently, anyone (only men) convicted under this law face a maximum penalty of ten years imprisonment with hard labor. Under current Jamaican law, LGBTQIA people have no protections and The Offences Against the Person Act 1864, a remnant of British colonization, reinforces and legitimizes violence against LGBTQIA people.

Plaintiffs now live abroad where they have found safety. It is not unusual for LGBTQ victims of violence to flee the island and seek asylum elsewhere. Further, their families can also become targets. Because Jamaica lacks LGBTQ protections, LGBTQ people are frequently subjected to mob violence, corrective rape, extortion, harassment, forced displacement, and discrimination. Many of these acts are perpetrated by state officials including law enforcement.

After a decade long struggle, the IACHR issued a public report in favor of Plaintiffs on December 31, 2020, declaring Jamaica non-compliant with its legal obligations under the American Convention on Human Rights. This decision is a landmark decision because it was the first decision of its kind issued by the IACHR regarding the rights of LGBTQ individuals in the Caribbean. The Commission laid out an array of recommendations for Jamaica to protect LGBTQ individuals. Two of the recommendations were repealing sections 76, 77, and 79 of The Offences Against the Person Act and adoption of anti-discrimination legal framework to prohibit discrimination based on sexual orientation, gender identity or expression – real or perceived – and body diversity.

The Commission’s decision is non-binding but is a ray of optimism because it may pressure the Jamaican Parliament to act in the interests of LGBTQ individuals. The decision is a massive victory for not only the two plaintiffs, but all LGBTQ people in Jamaica and the Caribbean. Though the decision was met with opposition from anti-LGBTQ advocates, it is incumbent on the Jamaican state to act with haste by passing laws in support of LGBTQ people because an injury to one is an injury to all. Whether the country will pass protections for LGBTQ people and enforce them is still uncertain, but dedicated activists continue to urge the government to do so.

For further information, please see:

CBC Radio – After fleeing to Canada, activist helps secure victory for LGBTQ rights in Jamaica – 18 Feb. 2021
IACHR – Report No. 401/20. Case 13,095. Merits (Publication) – 31 Dec. 2020
Laws of Jamaica – The Offences Against the Person Act – 1 Jan. 1864
Making Queer History – Dwayne Jones and the dangers of tragedy tourism – 09 Dec. 2020
The New York Times – On Being Queer in the Caribbean – 30 Oct. 2015
U.S. Dep’t. of State – 2021 Country Reports on Human Rights Practices: Jamaica – 2021

By: Marie LeRoy

Impunity Watch Staff Writer

DARFUR, Sudan– On October 3, 2022, the Chamber, in the matter of The Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman, issued a decision admitting thirty-one additional victims to participate in the proceedings and ordering the Registry to begin identifying the potential beneficiaries of reparations. These thirty-one new victims will join the one hundred and forty-two other victims already authorized to participate in the trial.

On June 6, 2005, the Prosecution reached the conclusion that the statutory requirements for beginning an investigation into the situation in Darfur, Sudan had been met and issued warrants for Mr. Abd-Al-Rahman’s arrest in 2007 and then again in 2020. On June 9, 2020, Mr. Abd-Al-Rahman voluntarily entered ICC custody. The confirmation of charges hearing took place from May 24 through May 26, 2021, and the charges were confirmed on July 9, 2021. During this hearing thirty-one counts of war crimes and crimes against humanity were brought against Mr. Abd-Al-Rahman, having allegedly been committed during the time Mr. Abd-Al-Rahman was a “senior leader of the Militia/Janjaweed in the Wadi Salih and Mukjar Localities”.

On October 3, 2022, the Chamber admitted an additional thirty-one victims to the trial and ordered the Registry to begin the process of “mapping potentially eligible beneficiaries of reparations”. This, the Chamber notes, can include direct and indirect victims of crimes that the accused is ultimately convicted of. The Registry states that the number of potential victims, because of the nature of the charges in this case, could reach the thousands with “at least a few additional hundreds of applications” expected to be submitted by the end of the year.

The Chamber states that anyone who would like to be considered a victim should reach out to Victims Participation and Reparations Service, before they have to make their victim report, by filling out the information for victims form on the ICC website. The applications will be assessed on a case-by case basis.

The Chamber reiterates the fact that this does not affect the fact that the accused remains innocent until proven guilty.

For further information, please see:

ICC- Case Information Sheet – The Prosecution v. Ali Muhammad Ali Abd-Al-Rahman- July 2022

ICC- Information for victims- Abd-Al-Rahman Case

ICC- Response on behalf of Victims to the Defense “Demande d’autorisation d’interjeter appel de la decision ICC-02/05-01/20-759 – Oct. 7, 2022

ICC- Second decision on the admission of victims to participate in trial proceedings – Oct. 3, 2022

By: Megan Gamache

Journal of Global Rights and Organizations, Associate Articles Editor

BRIDGETOWN, Barbados – The Caribbean Court of Justice (CCJ) ruled that men can be liable for raping other men. In its February 2022 decision, the Court reversed lower courts’ decisions that Barbados’ Sexual Offenses Act (Act) definition of rape did not apply to sexual intercourse between men.

The respondent, Alleyne, was charged in Barbados on rape counts by the Commissioner of Police. The CCJ found that the Act now extends to same-sex intercourse. The Act was originally written in 1992 and amended in 2014 to include more general and gender-neutral language. One of the pertinent changes is that Act does away with the terms “man” and “woman” in defining rape in favor of the terms “any person” and “another person.” The CCJ found that these new terms can be used to refer to same-sex sexual offenses.

The sole dissent argued that common law held that only a man could commit rape and only against a woman, and if Parliament wanted to change this common law understanding it must do so explicitly. However, the majority disagreed, and found that Parliament’s embracing of gender-neutral language, Barbados’ commitment to gender equality before the law, and Barbados’ constitutional rights against discrimination all led to a broader definition of rape.

The CCJ acknowledges that buggery, anal sex, is still technically illegal in Barbados. However, the Court declined to broach the legality of buggery with the facts of this case since Alleyne was charged only with rape and not buggery.

The Inter-American Commission on Human Rights agrees that this is the right decision and a step forward for all victims of rape, including LGBTQ+ people. But this is not the end. The continued legality of buggery, and similar statutes that criminalize consensual same-sex relations, make the legal system discriminatory and unsafe for LGBTQ+ people.

For further information, please see:

Breaking Belize News – Caribbean Court of Justice Rules that men can be charged for rape of other men – 2 Feb. 2022

Caribbean Court of Justice Appellate Division – Commissioner of Police v. Stephen Alleyne – 1 Feb. 2022

Organization of American States – IACHR takes note of the decision of the Caribbean Court of Justice concerning rape – 23 Feb. 2022