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Lesbian, gay, bisexual, transgender, intersex, and gender non-conforming individuals are among the least protected groups in armed conflict. Their existing vulnerability to discrimination and violence is specifically exacerbated in the context of situations of occupation. However, there have been very few efforts to respond to these risks in the context of armed conflicts, leaving LGBTQIA+ communities as a blind spot in the monitoring of civilian protection concerns. In occupied territories, there is an inherent and unresolved conflict between international humanitarian law’s imperative to maintain the status quo ante,and a State’s obligation to protect and promote the human rights of LGBTQIA+ individuals within its jurisdiction. Under international humanitarian law, an Occupying Power is generally bound by a presumption of continuity that requires it to maintain the domestic laws in force. However, adherence to this rule in regions such as the Occupied Palestinian Territories and eastern Ukraine has seen LGBTQIA+ persons subject to rape, torture and lethal violence at the hands of local security and police forces. This has generated an impetus to reexamine the scope of an Occupying Power’s legislative prerogative in order to better reflect the needs of those with diverse sexual orientations, gender identities, and gender expressions. This paper demonstrates how a queer-sensitive interpretation of the law of occupation and international human rights law may be applied to advance legislative protections for LGBTQIA+ persons in occupied territories. It proposes that the exception to the conservationist principle that permits a Belligerent Occupant to legislate to ensure humane treatment of the civilian population, when read in conjunction with contemporary interpretations of international human rights law, allows an Occupying Power to abrogate a limited set of provisions that constitute cruel, inhuman, or degrading treatment, such as the death penalty or corporal punishment. This does not grant a blank cheque to an Occupant to reform the law of an occupied territory, however it does allow the most harmful laws to be repealed.

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