A/56/156
23. When detained, members of sexual minorities are
often considered as a sub-category of prisoners and
detained in worse conditions of detention than the
larger prison population. The Special Rapporteur has
received information according to which members of
sexual minorities in detention have been subjected to
considerable violence, especially sexual assault and
rape, by fellow inmates and, at times, by prison guards.
Prison guards are also said to fail to take reasonable
measures to abate the risk of violence by fellow
inmates or even to have encouraged sexual violence, by
identifying members of sexual minorities to fellow
inmates for that express purpose. Prison guards are
believed to use threats of transfer to main detention
areas, where members of sexual minorities would be at
high risk of sexual attack by other inmates. In
particular, transsexual and transgendered persons,
especially male-to-female transsexual inmates, are said
to be at great risk of physical and sexual abuse by
prison guards and fellow prisoners if placed within the
general prison population in men’s prisons.
24. The Special Rapporteur has received information
according to which members of sexual minorities have
been subject to cruel, inhuman or degrading treatment
in non-penal institutions. In a number of countries,
members of sexual minorities are said to have been
involuntarily confined to state medical institutions,
where they were allegedly subjected to forced
treatment on grounds of their sexual orientation or
gender identity, including electric shock therapy and
other
“aversion
therapy”,
reportedly
causing
psychological and physical harm. The Special
Rapporteur notes, in particular, that the World Health
Organization removed homosexuality from its
International Classification of Diseases-10 (ICD-10) in
1992. The Special Rapporteur has received information
according to which, in a number of countries, persons
suspected of homosexuality have been subjected to
compulsory, intrusive and degrading medical
examinations of anus and penis in order to determine
whether penetration had taken place, inter alia, within
the context of enlistment for military service.
25. Finally, the Special Rapporteur notes and shares
the views of the Special Representative of the
Secretary-General on human rights defenders regarding
“greater risks ... faced by defenders of the rights of
certain groups as their work challenges social
structures, traditional practices and interpretation of
religious precepts that may have been used over long
periods of time to condone and justify violation of the
human rights of members of such groups. Of special
importance will be ... human rights groups and those
who are active on issues of sexuality, especially sexual
orientation ... These groups are often very vulnerable to
prejudice, to marginalization and to public repudiation,
not only by State forces but other social actors.”16
D. Torture and impunity
26. The Special Rapporteur has noted in the past that
the single most important factor in the proliferation and
continuation of torture is the persistence of impunity,
be it of a de jure or de facto nature. Causes of impunity
of a de jure nature encompass measures relieving
perpetrators of torture of legal liability, inter alia, by
providing an unrealistically short period of
prescription, adopting acts of impunity or by granting
amnesties to perpetrators of grave violations of human
rights. It is with regard to the granting of amnesties
that the Special Rapporteur wishes to review the recent
developments in international law on the question of
the compatibility of amnesties with States’
international obligations to combat torture.
27. The Special Rapporteur would like to draw
Governments’ attention to the Vienna Declaration and
Programme of Action, which stipulates that “States
should abrogate legislation leading to impunity for
those responsible for grave violations of human rights
such as torture and prosecute such violations, thereby
providing a firm basis for the rule of law”.17 The
Special Rapporteur further notes the report “Question
of the impunity of perpetrators of human rights
violations (civil and political)”, prepared by
Mr. Louis Joinet of the Subcommission on Prevention
of Discrimination and Protection of Minorities,
pursuant to Subcommission decision 1996/119, which
states that “amnesty cannot be accorded to perpetrators
of violations before the victims have obtained justice
by means of an effective remedy” and that “the right to
justice entails obligations for the State: to investigate
violations, to prosecute the perpetrators and, if their
guilt is established, to punish them”.18 As requested by
the Subcommission in its decision 1996/119, Mr. Joinet
drafted a set of principles for the protection and
promotion of human rights through action to combat
impunity,19 in which he states that “there can be no just
and lasting reconciliation unless the need for justice is
effectively justified” and that “national and
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