Gay genocide in Chechnya

As the large scale violence against the Rohingya people continues to occupy the lion’s share of the world’s attention, another disturbing situation also is of growing concern: the reportedly State sponsored “purges” of gay men in Chechnya. In April, 2017 an independent Russian newspaper, Novaya Gazeta, published an article about the arrest and torture of gay men in Chechnya, reporting that large numbers of gay men were rounded up, arrested and subjected to prolonged bouts of questioning, to elicit information about other gay men.[1] A Human Rights Watch released in May, 2017 confirmed this, reporting that the so called ‘purge’ began in the last week of February.[2]

The latest in a series of reported incidents is the suspected kidnapping and torture of pop musician Zelimkhan Bakaev, who was rumoured to be gay.[3] Bakaev has been missing since August, and was reportedly traveling from Moscow to Grozny to attend a wedding when he disappeared. He is now presumed dead. And while Chechen authorities have a long tradition of illegally detaining men perceived to be gay, this is the first time that it has been carried out in such a seemingly organized and systematic fashion.[4]

The Chechen government is led by strongman Ramdan Kadyrov, who, famously profiled as “Putin’s Dragon” by The New Yorker,[5] continues to blithely deny any allegations of violence against the LGBTQ+ community. Kadyrov’s statements, such as “there are no gays in Chechnya”, however, betray just the opposite. In fact, the situation in Chechnya more dire than one might imagine: six journalists from the Novaya Gazeta have been murdered for their work in journalism, including Anna Politkovskaya whose courageous reporting raised some very controversial and uncomfortable issues, something that ultimately cost her life. Even her successor Elena Milashina, whose dispatches broke the anti-gay campaign news, has had to leave Russia temporarily on account of her safety. Milashina has gone on record to say that there are at least six known cases where families have been told to kill male relatives, and that the killings actually took place in three or four of those cases.[6] According to Milashina, this reveals a deeper malaise: an accusation of homosexuality is, for many Chechen families, even worse than being accused of supporting terrorism or extremism. Consequently, even those who are homosexual are forced to maintain anonymity and secrecy in respect of their identities to protect themselves, their friends, and their families from the wrath of the authorities – a situation reminiscent of Orwell’s greatest fears.

However, the situation in Chechnya is not an isolated one: in fact, it represents a growing trend of intolerance towards those not only of alternate sexualities, but more broadly, of those of alternate ideologies and lifestyles in general. In fact, it is still illegal to be gay in 72 countries of the world, and is even punishable by death in some, including Pakistan, the UAE and Qatar.[7] This begs the larger question of whether the violence against the LGBTQ+ community, exemplified most recently by Chechnya’s anti-gay purge, should constitute genocide under the Genocide Convention, and what the basis for such inclusion should be.

What Is Genocide?

What then, is genocide? On August 24, 1941, nine weeks after the German invasion of the Soviet Union, Winston Churchill referred to the widespread murder of Russians by the Nazis as a “crime without a name”. In 1944, Polish-Jewish lawyer Rafael Lemkin described the mass murder of Jewish people by the Nazis during World Ward II, and in doing so, named the crime that Churchill could not. He coined the term ‘genocide’ by combining the Greek ‘genos’ meaning ‘a people’ and the Latin term ‘cida’, meaning ‘to kill’.[8]

Under International Law, the crime of genocide is governed by the Convention on the Prevention and Punishment of the Crime of Genocide, 1948. Article II of the Convention defines genocide to mean “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group;

At the outset, it is necessary to distinguish hate based violence from crimes of a genocidal nature. In the latter case, the existence of a ‘specific intent to destroy’ or dolus specialis must be proven, which, simply put, means that the perpetrator of the crime must have committed have done so with intent of causing the offence charged with; in the case of genocide, it would require proof that the perpetrator committed the offence with a view to committing genocide, i.e. partially or wholly destroying a group of people. As the International Criminal Tribunal for Rwanda framed it in Prosecutor v. Jean-Paul Akayesu , “special intent is the key element of an intentional offence, which offence is characterized by a psychological relationship between the physical result and the mental state of the perpetrator.[9] For instance, in Prosecutor v. Goran Jelisic, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia relied on the Akayesu decision to hold that random killings caused by an individual’s borderline personality does not qualify as genocide, as it lacks the requisite dolus specialis, although such a medical condition doesn’t not necessarily exclude the possibility of forming the necessary specific intent, and that equally, an apparent randomness in the perpetrators killings would not rule out a specific intent. In this connection, it is often argued that violence against members of the LGBTQ+ community are crimes against humanity rather than genocide because the LGBTQ+ community is not regarded as a group for the purposes of the Convention. While this might have been valid when the convention was drafted, it is no longer tenable now.

The jurisprudence on the point indicates that the definition is not to be given a restrictive meaning. In Prosecutor v. Jean-Paul Akayesu, the Trial Chamber of the International Criminal Tribunal for Rwanda famously held that it is “particularly important to respect the intention of the drafters of the Genocide Convention, which according to the travaux préparatoires, was patently to ensure the protection of any stable and permanent group.”[10] While no specific meaning has been ascribed to ‘stable’ and ‘permanent,’ there is a strong case to be made out in favour of the LGBTQ+ community being considered such as such, in line with the intentions of the drafters. For instance, even political groups were originally considered as a part of the original draft, but was later dropped from the final draft on the reasoning that it was less permanent than the other listed groups.[11] In this context, people of alternate sexualities constitute a group or community that is possessed of a far greater degree of stability and permanence than a political group, since membership is rooted in a members’ individual sexual preferences, which are arguably more stable and permanent than a political orientation.

Next, in addition to the specific intent requirement, another crucial factor that distinguishes genocide from crimes against humanity is that the former focuses on protecting a group, whereas the latter directs its attention at protecting the individual. Thus, where there is a mass murder of individuals, it can be considered a crime against humanity, but to constitute genocide, these individuals must all be members of a group. In turn, this dovetails with the specific intent requirement inasmuch as the act against the immediate victims must reflect a culpable state of mind in regard to the group. Hence, genocide comprises a dual mental element – one directed at the immediate victims, and one that is directed against the group as a whole, and its identity as such.[12]

In Chechnya, the violence against Bakaev and others like him is only a manifestation of the specific intent against the larger community of homosexuals. The International Criminal Tribunal for the Former Yugoslavia held in the Prosecutor v. Radzic, Mladic[13] case that specific intent may be inferred from, amongst others, the “repetition of destructive and discriminatory acts. The intent may also be inferred from the perpetration of acts which violate, or which the perpetrators themselves consider to violate the very foundation of the group.”, adding that “this intent derives from the combined effect of speeches or projects laying the groundwork for and justifying the acts, from the massive scale of their destructive effect and from their specific nature, which aims at undermining what is considered to be the foundation of the group.” And while it is no secret that gay men are routinely stigmatized in a variety of ways ion Chechnya, what is most alarming about the present situation is that it displays a far greater degree of systematization than has been seen before. This strongly hints at the presence of a ‘specific intent’ to destroy homosexual men as a group, so much so, that it goes beyond the contours of a traditional hate crime or a crime against humanity, and into the realm of genocide. One need to look no further than Kadyrov’s repeated denial of the ‘purge’ based on his claim that there are no gay men in Chechnya, and if there were, they should be to “cleanse our blood”. While one is tempted to treat this as the haughty ramblings of a tyrant and megalomaniac, it would be a grave mistake to dismiss them lightly. Given the power he wields and the political support and backing he enjoys, this is more are reminiscent of dam poised to burst, ready to release a deluge of violence upon its victims, and leave a trail of their blood in its wake.

Finally, although the Genocide Convention has been signed by over 130 countries, it has not been amended since its entry into force nearly 70 years ago, and it appears that the limitations it faced then have only grown more pronounced over time, with the evolution of politics, society, technology, and means of violence. Groups have emerged that weren’t visible or even conceived during the Holocaust, and the world has become more polarized on a number of important socio-legal issues, sexuality being one of them. If the ultimate objective of the framers of the Convention, and indeed of the international community itself, is to protect groups from being targeted and eliminated, rigid and pedantic interpretations of the law must be eschewed in favour of a more progressive and bold stance. If not, the Convention might well be rendered self-defeating, and the aspirations of the framers nugatory.

The need of the hour is a thorough reassessment and re-evaluation of the Genocide Convention in light of its aims and objectives, and a suitable amendment to its definition of genocide to accommodate the needs of the present day. To begin with, ‘social groups’ such as the LGBTQ+ community, should be brought within its scope of application, and crimes against such groups should be attached with the gravity that they truly deserve.

Unhappily, thus far, the anti-gay ‘purge’ in Chechnya and the international response to it has been tepid at best, and is demonstrative of a lassitude that borders on a lack of concern, which, if left to continue, could lead to some very distressing results. As Kadyrov grows more confident in his power, his views stronger and actions more audacious, who is to say what will come next? What if his actions, and the apparent impunity with which he carries them out, has a domino effect and emboldens others in similar positions elsewhere to do the same? Ultimately, the question is what it will take for the international community to take sit up and take notice, what amount of suffering will the world recognize as sufficient to merit its attention. Swift action is the order of the moment, lest the spectre of the positivist claim that international law is not really law as much as it is a toothless system of morality be revived to haunt us tomorrow, as the demons of the past haunt us today.

NOTES

[1] E. Milashina, “Murder of Honour”, Novaya Gazeta (online edition), April 3, 2017, visited on 05/09/2014.

[2] “They Have Long Arms and They Can Find Me: Anti Gay Purge by Local Authorities in Russia’s Chechen Republic”, Human Rights Watch Report, 26/05/2017

[3] J.P. Brammer, “Chechen Pop Singer Feared Kidnapped, Victim of Anti-Gay Purge”, NBC News (online edition), Nov. 9, 2017, last accessed on 14/11/2014.

[4] “They Have Long Arms and They Can Find Me: Anti Gay Purge by Local Authorities in Russia’s Chechen Republic”, Human Rights Watch Report, 26/05/2017

[5] J. Yaffa, “Putin’s Dragon”, The New Yorker (online edition), Feb. 08 &15, 2016, last accessed on 14/11/2017.

[6] The New Yorker Staff, “How a Russian Journalist Exposed The Anti-Gay Crackdown in Chechnya”, The New Yorker (online edition), June 10, 2017, visited on 10/09/2017.

[7] “It’s Still Illegal to be Gay in 72 Countries”, The Wire, 27/07/2017,  last accessed on 14/11/2017.

[8] J. Quiggly, Genocide: An International Law Analysis 4-5 (2006, Ashgate Publishing Ltd.)

[9] Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgment of the Trial Chamber, 2/09/1998, at para 518.

[10] Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgment of the Trial Chamber, 2/09/1998, at para 516.

[11] J. Quigley, The Genocide Convention: An International Law Analysis 10 (Ashgate, 2006).

[12] J. Quigley, The Genocide Convention: An International Law Analysis 10 (Ashgate, 2006).

[13] International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Radovan Karadzic, Ratko Mladic, Cases Nos. IT-95-5-R61 and IT-95-18-R61, Decision of Trial Chamber 1, Consideration of the Indictment within the framework of Rule 61 of the Rules of Procedure and Evidence, 11.07/1996, at para 94.

 

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Akshay Sreevatsa Written by:

An international lawyer and early career academic who has taught at several universities across India, most recently atJindal Global Law School, Haryana.

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