In a landmark decision, a Lebanese military tribunal decriminalizes homosexuality
In his decision, judge Peter Germanos said the law condemns sexual relations “against nature” but doesn’t specify what that means.
For decades, a 75-year-old article in Lebanon’s Penal Code has been used to criminalize homosexuality. But in recent years, there have been signs of progress with fewer and fewer people have faced charges of homosexuality in courts.
On Saturday, March 30, Military Tribunal judge Peter Germanos acquitted four soldiers who were accused of homosexuality. Germanos dismissed the charges of committing sexual acts “against nature” that were filed against the soldiers and decided not to issue arrest warrants.
This landmark decision is a first in the Lebanese military court system and follows a trend of decriminalizing same-sex relations that began in Lebanon’s civil courts in 2009. On July 12 last year, a court of second instance, the Penal Appeal Court in Mount Lebanon, chaired by judge Randa Kfoury, upheld a decision by criminal court judge Rabih Maalouf not to penalize homosexuality, stating that it does not constitute a crime when it is practiced in private.
For his part, Judge Germanos based his decision on the legal argument that, while the Penal Code criminalizes sexual relations that are “contrary to nature”, it does not specify the kind of relations included in this classification. A judicial source close to the case told L’Orient-Le Jour (OLJ) that Article 534 of the Penal Code, which says sexual acts against nature can be punished with imprisonment for up to one year, is not applicable to homosexuality. The article does not address sexual orientation and does not distinguish between men and women, according to the source, who noted that a man may have a sexual relationship with a woman in a way that is contrary to nature and explained that this is the “offence against public decency” that article 534 refers to.
Article 534 falls under the Penal Code section titled “Offenses Against Public Decency and Morality” and can only be applied when criteria laid out in other articles are met. Specifically, for an act to be against public decency it must be committed in public, and Article 209 of the Penal Code states that a public act or gesture must take place in a space that is open and visible to the public or where a third party can see the act taking place (this includes by indirect means, such as films).
Consistent with evolving morals
“Judge Peter Germanos interpreted the text of the law literally, rendering a technical decision without explicitly invoking human rights,” the source stressed. “[Germanos] used the well-known principle of strict interpretation of the criminal law to courageously make an ideological decision consistent with evolving morals,” attorney Akram Azoury told OLJ.
“Lebanese military courts have joined civilian courts in affirming that homosexual acts are not a crime,” said Lama Fakih, deputy Middle East director at Human Rights Watch. “To reinforce this positive development, parliament should move to abolish Penal Code Article 534 entirely to avoid inconsistent judicial rulings, and the Minister of Justice should publicly affirm not only that same-sex behavior is not a crime, but that sexual diversity cannot be grounds for discrimination.” As governments around the world have decriminalized same-sex relations and legalized marriage equality, HRW considers Article 534 to be a “relic of the colonial past”.
Bertho Makso, founder and director of Proud Lebanon, an LGBT rights group, told OLJ that the military court’s decision is “a victory for the LGBT community in military and security institutions”, and added that military courts’ rulings also apply to cadets and officers charged with the same accusations in other security institutions, such as General Security.
But just because Germanos decided not to criminalize homosexuality doesn’t mean that the four soldiers will not face punishments. “The judicial decision differs from disciplinary measures since the four people brought to justice can be dismissed from their posts by their superiors,” Makso said. ”At a minimum, the soldiers involved should be able to resign rather than be fired,” he continued, saying that it would be a shame if soldiers were dismissed because they would lose their end-of-service benefits.
“The private life of a soldier concerns him alone”
“The private life of a soldier concerns him alone,” Makso said. “Accountability should be based on loyalty to the army and on love and commitment to the country rather than on intimate relationships… [Hopefully] the decision of the military court will finally open a new page in the army.”
“Things are moving toward normalization,” Nizar Saghiye, executive director of Legal Agenda, told OLJ. “Although judges could continue to convict, many others are increasingly convinced that progress is needed… It is through jurisprudence that a law is emptied of its meaning and its effects and the development of a new law begins.”
It remains unclear, however, whether religious authorities would allow for the adoption of a new law. But Saghiye believes they would end up adapting. “Many Islamist movements in the world, mainly the Tunisian Nahda party, are in favor of decriminalizing homosexuality,” he said.
(This article was originally published in French in L'Orient-le Jour the 2nd of April)