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LGBT+ History Month: The use of sanctions against LGBT human rights abuses

Posted on 23 February 2022

Background

The EU made headlines in March 2021 with its decision to sanction two Russian individuals for their alleged human rights abuses, which included detaining LGBTQI+ individuals under the pretence that they opposed far right Chechen leader, Ramzan Kadyrov.

These measures came shortly after the EU sanctioned four other Russian individuals also involved with arbitrary arrests and the repression of freedom of expression. Ramzan Kadyrov, who is under sanctions for human rights abuses himself, denied the alleged purge of LGBTQI+ individuals in Chechnya on the basis that according to him, no such people exist there. Given the conflict of societal and legal norms between different states over LGBTQI+ rights, it is legitimate to question whether a punitive sanctions regime is an appropriate and effective response to such egregious conduct. 

Definition

Sanctions are measures undertaken by governments that aim to influence and often restrict the activity of states, sectors, and legal and natural persons in response to their political, economic or military decisions. The US Council on Foreign Relations describes sanctions as "a lower-cost, lower-risk, middle course of action between diplomacy and war", as the foreign policy tool aims to ensure compliance with the interests of the state or international organisation imposing the measures in a more humane way than military intervention.

Sanctions may come in the form of arms embargoes, asset freezes, travel bans or more general restrictions on trade, and are often grouped together in 'sanctions regimes' which are either thematic or geographic. Sanctions have long been used, and are an increasingly common response to illegal economic or military activity. However only more recently have sanctions been employed in response to human rights abuses, and more specifically LGBTQI+ discrimination.

Historical sanctions on LGBTQI+ abuse

In April and June 2014, the United States announced sanctions against Uganda in relation to its Anti-Homosexuality Act enacted earlier that year. The sanctions package included measures to prevent entry into the US by certain Ugandan officials involved in serious human rights abuses, including against LGBTQI+ individuals. In addition, the United States discontinued and redirected funds for certain programs involving the Ugandan Police Force, Ministry of Health, and National Public Health Institute, and cancelled plans to hold a U.S. military-sponsored aviation exercise in Uganda. A couple years later, the Global Magnitsky Human Rights Accountability Act was enacted in the United States, which authorised targeted sanctions on individuals involved in human rights abuses worldwide.

More recently in February 2021, Joe Biden issued the ‘Memorandum on Advancing the Human Rights of Lesbian, Gay, Bisexual, Transgender, Queer and Intersex Persons Around the World’. This directed US executive departments to enact financial sanctions and travel restrictions on countries and individuals that had a track record of abusive behaviour towards LGBTQI+ persons. Following this, the US House of Representatives approved the Global Respect Act in February 2022 which aims to prohibit those who have committed LGBTQI+ human rights abuses abroad from obtaining a visa to enter the US.

In the UK, the Sanctions and Anti-Money Laundering Act 2018 enables the government to impose sanctions through secondary legislation. The UK currently has 18 autonomous sanctions regimes and 12 mixed UK/United Nations regimes which it uses and maintains under the Sanctions Act. On 6 July 2020, the UK Government launched the Global Human Rights sanctions regime with the aim to hold to account those involved in serious human rights violations or abuses. While the UK sanction list contains over 80 individuals and entities that fall under this regime, only four of these are in response to the specific abuse of LGBTQI+ individuals (all based in Chechnya). In light of the UK's new human rights sanctions, the Council of the European Union adopted a Decision and Regulation implementing a similar regime which targets those involved in serious human rights violations. This new regime will allow the EU to respond to human rights abuses without being limited to the scope of existing geographical sanctions regimes. Several countries have followed suit, including Canada, Latvia, Lithuania and Estonia.

Evaluation

While it is hard to measure the exact overall effect of a particular sanctions regime, a frequently voiced criticism of such measures is that they often result in unintended consequences, and tend to fall short of achieving their objective. A comprehensive study from 2006 which reviewed 200 sanctions regimes concluded that the tool was only successful 33% of the time in the period spanning 1960-2006.

Alongside this alarmingly low success rate, many commentators complain that sanctions harm the living standards and humanitarian situation of the population in the sanctioned state, and this negative impact has been found to effect women, minority communities and other marginalised groups to a greater extent. A 2017 study suggested that targeted sanctions on individuals had a lesser negative impact on the wider population, which may explain the UK's approach, described as "deliberately targeted" in the Foreign Offices' Annual Sanctions Regulations Review 2021. However, the same study found that targeted sanctions were less likely to work on those targeted individuals, who often found ways to circumvent the measures.

The ineffectiveness and collateral damage associated with sanctions regimes invites critics to question whether viable alternatives exist. Diplomatic engagement, for instance, is a foreign policy strategy that offers positives incentives to achieve its objectives. While a strategy like this comes with obvious advantages, such as more easily facilitated negotiations and the ability to monitor democratic progress on the ground, it can be interpreted by the target country's citizens as a inadequate or at best, neutral response to the actions of the perpetrator.

In the case of LGBTQI+ abuses, cooperation with an abusive regime is unlikely to be regarded as an act of solidarity by the LGBTQI+ community, despite both the community and sanctioning government sharing similar values and goals. In contrast, sanctions have the unique ability to send a non-violent message to those oppressed by often autocratic regimes that they have the support of the international community and that human rights abuses will not be tolerated.

Conclusion

The US recorded a 933% increase in sanction designations since 2000, meaning that despite their shortcomings, it is likely sanctions are here to stay. It is therefore important for governments to carefully consider the long-term objectives for the targeted state or individual, carefully assess whether sanctions are the right tools to achieve those objectives and co-ordinate with allies, the civil society and most importantly, humanitarian aid organisations to ensure collateral damage is kept to a minimum.

Long lasting sanctions encourage the target to seek out new alliances and make do without the sanctioning country, severing any hope of reconciliation in the future. Therefore, sanctions regimes should also aim to be temporary, and the criteria for their reversibility should be made clear to the target.

February is LGBT+ History Month – a month dedicated to the remembrance and celebration of LGBTQI+ lives, reflection on the historic progress of the LGBTQI+ community, and raising awareness of contemporary issues facing the LGBTQI+ community today. Mishcon de Reya LLP has long been committed to ensuring and promoting equality and diversity. In 1957 our founder, Lord Mishcon, sat on the Wolfenden Committee which recommended that homosexual activity between consenting adults should be decriminalised, ultimately leading to a change in the law. Today, we run Pink Law, a LGBTQI+ legal advice centre, support the LGBTQI+ film festival BFI Flare, have an active and vibrant Pride Network for both colleagues and contacts, and support a range of LGBTQI+ clients with both their business and personal needs.

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