Prides, prejudices and the Human Rights Committee: What do we do with the master’s tool?
I am an international lawyer. International lawyers bring cases to international bodies that adopt international decisions. A heavy book living on a shelf in my home office states that such decisions ‘represent a considered assessment of alleged violations against a particular factual background … with a determination of admissibility, violation or otherwise’.1 Dry legal technical terminology. But international lawyers – at least, some of us – also know the other side of international cases. Their human faces, their human struggles, their healing (or not) potential.
Exactly ten years ago, it was a sunny Saturday in Saint Petersburg, and I woke up thinking about some easy stuff. And then I’ve got a message from a friend – something serious was happening just 700 meters from my apartment, at the Field of Mars, where fellow activists gathered for an LGBT pride demonstration. There was an aggressive crowd attacking the activists, there was violence against them, and the police started to detain people. That’s how this story started for me.
This story is full of pain, injustice, silencing, but also solidarity, friendship and mutual support. I do not remember the details of the following weeks – it was simply too much to handle; but I do remember creating lists – a list of people detained (dozens), with police departments where they were held; a list of lawyers and attorneys – our usual LGBT allies but also those from a civil disobedience group; a list of things to bring to police stations (water, food, mats, sometimes medications); a list of court hearings – everyone detained was charged with violating the Code of Administrative Offences. And then I remember some exact moments of that day.
Flash: me and my friend staying at the back of a trolleybus on our way to one of the police departments where activists were held.
Flash: yellow flowers on a bench. Glasses nearby. Our joking about donating them one day to a museum of history of homophobia in Russia.
Flash: me, with one hand holding a bathroom door in the Mariinskaya Hospital, to help Sasha (the bathroom was quite old and quite broken, and the door lock wasn’t functional), and having a phone with a journalist calling, in my other hand.
Sasha was one of the four friends who get circled by a homophobic crowd right after the police started to detain activists. It was physical violence, horror and humiliation. I know that at one moment, they thought that was going to be the end. But they survived. Sasha survived twice, as a few months later, in one of these Saint Petersburg’s dark chilly November nights, two masked men entered an office where an LGBT support group was meeting. Sasha was the one they met first. They were armed with a gun, and they screamed homophobic slurs. Another activist who was present there, lost his eye and then escaped the country. Sasha was injured and went through a lot. And, honestly, some scars never heal.
Both attacks were reported to the police, but no real investigation followed, and the motive of the attacks has never been officially recognized. And then it became Sasha Krikkerik v Russian Federation.
Decision of the UN Human Rights Committee
Merits
On 15 March 2023, the UN Human Rights Committee adopted a decision Krikkerik v Russian Federation,2 holding Russia accountable for the violation of article 7 and article 26 of the International Covenant on Civil and Political Rights (ICCPR). According to the former, no one shall be subjected to torture, cruel, inhuman or degrading treatment; the latter is about non-discrimination. That was the first decision of this committee concerning anti-LGBT violence, and the second on this topic from UN treaty bodies.
Some important observations and conclusions were made in this decision by the Human Rights Committee.
Regarding article 7 of the ICCPR (torture and ill-treatment), the Committee recalled that states have positive obligations to protect people from foreseeable attacks – in this case, more than foreseeable as it was the whole crowd surrounding the pride demonstrators and raging under the guise of police.3 The state’s failure to investigate hate-motivated violence amounted to another violation of the same article.4
The Human Rights Committee also applied article 26 of the ICCPR (non-discrimination) to this case. The Committee refuted the Russian Federation’s claims that investigators were not able to establish the motives of the attacks for the reason of the perpetrators not being identified and therefore the impossibility to question them. According to the Human Rights Committee, the motive was evident from the attacker’s behaviour and slogans they used – all of which clearly demonstrated hatred against LGBT persons. Moreover, even the police itself did acknowledge that during the pride event, there was ‘animosity’ from ‘persons with traditional sexual orientation’ towards LGBT activists.5
Further – and this part is particularly interesting – the Committee also explained the meaning of article 26 of the ICCPR in the context of hate crime legislation.
To give some historical background, the 1996 Criminal Code of the Russian Federation initially considered as aggravating circumstances only the motives of national, racial, or religious hatred. In early 2000s, several attempts to amend the Criminal Code were made, including one bill suggesting adding to the list of aggravating circumstances ‘social or sexual hatred or enmity’, and another bill only focusing on ‘hatred against a social group’. The first bill was rejected as the term ‘sexual hatred’ was considered ambiguous, and sexual orientation was deemed to be a strictly private matter. However, the second bill made its way to the Criminal Code, and since 2003 ‘hatred against a social group’ is listed among other aggravating circumstances.6 But that was a very different time and a very different country. What has actually happened to these norms, with the political changes in Russia, was that LGBT people were hardly ever considered a ‘social group’ in need of protection from hate crimes. By contrast, LGBT community was called ‘anti-social group’ in this context, but, for example, police was recognized as a ‘social group’ hatred against which shall increase the punishment. Ironically, exactly the example of the master’s tool not being able to dismantle the master’s house.7
But let’s get back to the Human Rights Committee and its analysis of the Russian hate crime legislation. The Committee recalled that ‘the enjoyment of rights and freedoms on an equal footing does not mean identical treatment in every instance'.8 Something international lawyers would call ‘substantive equality’. The Committee then indicated that sometimes, specific actions are needed to correct general conditions of a certain part of the population historically marginalized or excluded – for example, LGBT people. Here, according to the Human Rights Committee, the Russian Federation was obliged to enact clear legislation to effectively protect Sasha – and, in general, LGBT community – as a targeted social group, instead of leaving this to the discretion of investigative authorities.9
Remedies
Having conducted all this analysis, however, the Committee remained very unambitious with regard to the remedies awarded. Individual measures, aimed at remedying the harm suffered by Sasha, involved ‘adequate compensation’, including reimbursement of legal costs, and – if required – also psychological rehabilitation.10 General measures – those aimed at non-repetition of the violation – were formulated as ‘bringing [the state’s] legislation, and implementing policies and practices concerning protection of the rights of lesbian, gay, bisexual and transgender persons, in accordance with the [ICCPR]’.11 No concrete actions, no tangible goals, no indicators.
According to international legal scholars, the Human Rights Committee is not a court but rather a ‘quasi-judicial body’. Its decisions (or ‘views’) do not have the same legal status as, for example, decisions of the International Criminal Court or even the European Court of Human Rights. Still, I think that the Human Rights Committee could have done more while determining the remedies in this case. And there are examples to look at.
In 2022, a ‘sister’ treaty body of the Human Rights Committee – the Committee on the Elimination of Discrimination against Women (CEDAW) – adopted the first decision on anti-LGBT violence. The case concerned a lesbian couple attacked in the street by strangers and the following lack of effective investigation into the case.12 Recognising the violation of the two women’s rights by the Russian Federation, CEDAW called on the state to adopt a number of actions, and this list was more comprehensive than the measures designed by the Human Rights Committee. Among the measures recommended by CEDAW were training programmes for law enforcement officials; due diligence in respecting, protecting and fulfilling the human rights of women, including lesbians and to be free from gender-based violence; investigation, prosecution and punishment for cases of anti-lesbian violence; and ensuring access to justice, including free legal aid, remedies and rehabilitation, for lesbian survivors of violence.13
Another example is remedies awarded by the Inter-American Court of Human Rights, especially its decision Vicky Hernández v Honduras.14 This case concerned a femicide of Vicky Hernández – a trans woman, sex worker and trans activist. The Court not only provided an excellent analysis of the facts revealing multiple layers of oppression Vicky was subjected to during her life and even after, but also identified a comprehensive list of individual remedies and general measures aimed at addressing the systemic nature of the violations committed by the state. Individual remedies included investigation into the case of Vicky’s death; measures of satisfaction in the form of publication of the decision, public acknowledgement of the state’s international responsibility, a scholarship for Vicky’s niece, a documentary about violence against trans women in the country, and a study grant programme for trans women; and, in addition, rehabilitation and compensation for Vicky’s family.15 Among the general measures, the Court requested Honduras to conduct training programmes for law enforcement officials; to establish a simple legal gender recognition procedure based on self-determination; to develop and implement special investigation protocols; and to ensure diagnosis, compilation of data and elaboration of statistics on violence against LGBTI persons.16
I wish the UN Human Rights Committee could learn from these examples to award more comprehensive and, at the same time, more concrete measures in cases of LGBTI human rights violations. Otherwise, it would be just too easy for a state (especially a state not really caring about queer lives) to either ignore the Committee’s recommendations, or to make the implementation purely performative – for instance, conducting a one-hour training for a couple of police officers mentioning LGBT in passing, and then claiming they did a great job.
On the other hand, the Human Rights Committee itself advises claimants to include in their submissions an indication of the types of reparation that they are seeking.17 While such indications are not obligatory for the Committee, and it only uses them as a reference, more attention to the marginalized voices can and should be paid by the Committee. Sasha Krikkerik sought specific general measures and individual remedies – including concrete changes in legislation, adoption of investigating protocols, collection of statistics, carrying out proper investigation, and an official apology.18 None of them were awarded by the Human Rights Committee.
A lot can be written about each of the measures envisaged by Sasha and his representative. But I would just focus here on one of them, namely an official apology. Apology – as a remedy for queer pain – has an ambiguous reputation. In Australia, it was critisised, for example, for re-centering the problem and re-cultivating the state’s and police’s proud ('transforming shame into pride'), instead of healing queer community.19 I have never been to Australia. But I have lived in countries that never apologise to queer communities, my communities. And I think that apology can also be read reparatively.
In Vicky Hernández v Honduras, the Inter-American Court requested the state to hold a public act to acknowledge its international responsibility for the facts of the case. According to the decision, this act must be organized as a public ceremony and be attended by high-level state representatives, including the highest police authorities. The ceremony must be held at the Colectivo Unidad Color Rosa – the organisation where Vicky was an activist and that defends trans persons’ rights in Honduras and specializes in HIV/AIDS. Further, the act must be widely publicized, including through radio, television and social media.20
The public ceremony was held on 9 May 2022 in front of the office of the Colectivo Unidad Color Rosa in San Pedro Sula, Honduras. A number of high-level officials, including the President of the Republic of Honduras, human rights defenders, representatives of the Colectivo Unidad Color Rosa and Red Lesbica Cattrachas, and Vicky’s mother – they all made statements and acknowledged the importance of the event.21
Discrimination, and especially hate crimes, harm not only individual persons but also their whole communities. Therefore, a public apology or acknowledgment of responsibility plays especially important role in the reparation process. For communities that are marginalized, the question of where such public act is to be held has both symbolic and practical meaning. For queer people, offices of LGBTI organisations or community centres are special places. A public acknowledgment or apology by state authorities in such spaces, known and safe for the community members to visit, can also symbolically shift the power imbalance between the community and the state, and send a signal to the community that their griefs, harms and needs are not invisible anymore.
Vicky deserves justice. She was not able to attend the ceremony, but she was there through her community's presence, and this ceremony at least paid some respect to her memory.
Survivors of LGBT violence deserve justice, and they should be awarded remedies that bring this justice a little closer. And in this, recommendations from the UN Human Rights Committee, as well as other international bodies, can be instrumental. Even though some scars will never heal.
1 Paul M Taylor, A Commentary on the International Covenant on Civil and Political Rights: The UN Human Rights Committee’s Monitoring of ICCPR Rights (CUP 2020) 9.↩
2 Krikkerik v Russian Federation: communication no 2992/2017.↩
3 ibid 9.3-9.5.↩
4 ibid 9.6.↩
5 ibid 9.7-9.8.↩
6 I described this legislative process in more detail in Kseniya A Kirichenko, Study on Homophobia, Transphobia and Discrimination on Grounds of Sexual Orientation and Gender Identity: Legal Report: Russian Federation (2010) 22-26.↩
7 I am referring to Audre Lorde’s text ‘The Master’s Tools Will Never Dismantle the Master’s House’ that can be found in Audre Lorde, Your Silence Will Not Protect You (Silver Press 2017). Some international lawyers also have these books in their home offices.↩
8 Krikkerik v Russian Federation (see n 2 above) 9.9.↩
9 ibid.↩
10 ibid 11.↩
11 ibid.↩
12 ON and DP v Russian Federation: communication no 119/2017, decision of 24 February 2020.↩
13 ibid 9.↩
14 Vicky Hernández et al v Honduras (Merits, reparations and costs) (IACtHR, 26 March 2021).↩
15 ibid 149-166.↩
16 ibid 167-179.↩
17 Guidelines on measures of reparation under the Optional Protocol to the International Covenant on Civil and Political Rights, UN Doc CCPR/C/158 (2016) 4.↩
18 Krikkerik v Russian Federation (see n 2 above) 7.8.↩
19 Emma K Russell, Queer Histories and the Politics of Policing (Routledge 2020) 128.↩
20 Vicky Hernández et al v Honduras (see n 14 above) 156-158.↩
21 Jorge Burgos, ‘En acto público reconocen culpabilidad del Estado por asesinato de Vicky Hernández’ (10 May 2022); Cristian González Cabrera, ‘Honduras Recognizes Its Responsibility in Trans Killing: Groundbreaking Commitments in Implementing Regional Court’s Ruling’ (13 May 2022). The recording of the ceremony is available here.↩
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