Rights in Exile Programme

Refugee Legal Aid Information for Lawyers Representing Refugees Globally

Occupied Palestinian Territory LGBTI Resources

(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)

 

As stated in a 2013 ILGA report, same-sex acts in the West Bank (including East Jerusalem) have been legal since 1951 when the Jordanian Penal Code was implemented. In Gaza, however, the British Mandate Criminal Code Ordinance, No. 74 of 1936 is still in force and condemns homosexuality.

Article 152(2) of the British Mandate Code criminalises sexual acts ‘against the order of nature’ and stipulates penalties of up to 10 years:

Any person who:
(a) has carnal knowledge of any person against the order of nature;
(b) has carnal knowledge of an animal;
(c) permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony, and is liable to imprisonment for ten years.
(Article 152(2) of the British Mandate Criminal Code)

In Palestine, religion has a strong influence on the population, regulating people’s life and society. The Islamic law works together with the criminal and civil law ruling most civil matters between Muslims. According to Islamic law, homosexual behavior is punishable by different predetermined penalties, including flogging and hanging.

Palestinian asylum seekers in Israel

Numerous Palestinian LGBTI people attempt to seek asylum in Israel. According to the 1951 Refugee Convention, Israel should offer effective protection to asylum seekers, but Israel rarely fulfills its protection obligations towards Palestinian asylum seekers. Since 1993 indeed, Israel has implemented a policy of ‘closure’ which forbids the entrance of Palestinians from the Occupied Territories, due to the alleged security risk presented by Palestinians.

As a result of this policy, the majority of Palestinian asylum seekers in Israel are undocumented. Irregular status puts Palestinian asylum seekers under the constant threat of deportation. If deported to the Occupied Palestinian Territories, Palestinians are at risk of being perceived as Israel’s collaborators and killed.

Israel's refusal to allow Palestinians to seek asylum constitutes a violation of the Refugee Convention, the Fourth Geneva Convention, the Convention against Torture, and other bodies of law that prohibit discrimination based on national origin.

The U.N. Relief and Works Agency for Refugees in the Near East (UNWRA) principles present another limit to the right to asylum for some Palestinians. Article 1D of the Refugee Convention states that: Palestinian refugees from Arab-Israeli wars continue to fall within the mandate of the (UNWRA).The principles stipulate that the majority of Palestinian refugees are the majority of Palestinian refugees are not entitled to be protected by the 1951 Refugee Convention or the UNHCR mandate.
 

CASE LAW

John Doe v. Israel (Ministry of the Interior): Tel Aviv Administrative Court, 1965/04

This case was submitted to the Tel Aviv Administrative Court by the Association for Civil Rights in Israel on behalf of a gay couple consisting of an Israeli citizen and a Palestinian resident of the Occupied Territories. The State recognized the couple’s right to family unification, but did not recognize the Palestinian claimant’s asylum claim under the 1951 Convention.

C. v. Israel (Minister of the Interior): Tel Aviv Administrative Court, 2004

This 2004 case demonstrates the negative attitude of Israeli authorities towards Palestinians. The authorities refused to provide any status even on a temporary basis. The Palestinian applicant asked for a temporary status in order to be able to remain in Israel while his refugee application was being considered. However, the Palestinian applicant did not receive a permit to stay in Israel and was deported, constituting a breach of the principle of non-refoulment prohibiting return to serious danger.

 

PUBLIC ATTITUDES AND/OR STATE'S CAPACITY TO PROTECT

LGBTI rights are not protected in the Occupied Palestinian Territories, the life of LGBTI people is continuously under threat. There are various LGBTI organizations trying to protect LGBTI rights by providing legal and psychological support, and by trying to improve community attitudes towards LGBTI persons. LGBTI organizations are strongly rejected by religious authorities, and the Hamas government continuously censors their activities and websites.

LGBTI persons are persecuted in both the Gaza Strip and the West Bank. As evinced by LGBTI organizations active in the area and by Palestinian testimonies, both state and non-state actors continuously perpetrate serious human rights violations and discrimination.

The US State Department Human Rights Report 2003 emphasises: ‘In the Palestinian territories several Palestinians alleged that PA security officers tortured them because of their sexual orientation. Homosexuals were persecuted by both the public and by PA security officers. Homosexuals were subject to harassment and physical abuse, and some were arrested’ (Tel Aviv University, 2008).

In addition to being targeted due to their sexual orientation, Palestinian LGBTI persons are also seen as Israel's collaborators. Because Israel appears to protect LGBTI rights in the Middle East, many Palestinian LGBTI persons to seek protection in Israel. However, Israel has a record of rejecting and/or exploiting Palestinian LGBTI asylum seekers, presenting an additional risk in the life of Palestinians.

Most of the available reports focus on gay men. However, various organisations indicate equally high levels of discrimination against lesbians. Aswat, a Palestinina Lesbian Organisation reported on their website: ‘Our society has no mercy for sexual diversity and/or any expression of the 'otherness' away from societal norms.’

Testimonies

There are a number of testimonies in the form of interviews conducted by qualified lawyers trained in refugee specific interviewing technics.  These can be found in a report by Tel-Aviv University called Nowhere to Run.

 

NON-GOVERNMENTAL ORGANIZATIONS (NGOs)

[to be completed shortly]

 

COUNTRY OF ORIGIN SPECIALISTS

[to be completed shortly]

 

 

Researched by Nicoletta Idili

Email: nicoletta [dot] idiliatgmail [dot] com

 

 

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