State-sponsored Hatred and Persecution on the Grounds of Sexual Orientation

Persecution as a crime against humanity offers an important opportunity to provide accountability for State-sponsored hatred and violence committed against persons due to their actual or perceived sexual orientation. This chapter explores theoretical and legal issues surrounding the prosecution of persecution on the ground of sexual orientation under Article 7(1)(h) of the Rome Statute, with a focus on Africa. It considers how universal protection of sexual minorities may be legitimized in the face of varying cultural contexts and nuances in how sexuality is understood. It argues that sexual orientation, currently absent from the protected groups in Article 7(1)(h) can be addressed under either ‘gender’ or ‘other grounds universally recognized as impermissible under international law’. Nevertheless, it is considered that further attempts to expand Article 7(1)(h) to explicitly recognize sexual orientation are needed to guarantee protection for sexual minorities.