Despite widespread condemnation from the U.N., Council of Europe, E.U., United States, and other countries, a brutal campaign against gay men in Chechnya continues. The abuses take the form of abduction-style detention, enforced disappearances, torture, and killings. Considering the systematic features and the brutality of the abuses, Chechnya’s anti-gay campaign amounts to crimes against humanity, and it demands proper condemnation and response from the international community.
Crimes against humanity, as an international crime, has been defined in various statues and law commissions’ proposals since 1945. They each have their own distinctive feature tailored to the specific historical context during which they were drafted. For example, the Nuremberg Charter and the International Criminal Tribunal for the former Yugoslavia (ICTY) Statute’s definition require the element “in armed conflicts”, while the International Criminal Tribunal for Rwanda (ICTR) Statute requires a discriminatory intent. This note uses the definition in Article 7 of the Rome Statue of the International Criminal Court (ICC): “any of the acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack,” followed by specific acts listed in sub-paragraphs. This definition has been almost entirely adopted by the International Law Commission in its latest version of draft articles on crimes against humanity (note: the proposed draft articles are still in work progress).
Murder, Imprisonment, Torture, Enforced Disappearance, and Other Inhumane Acts
The argument that the Chechnya’s campaign against gay men constitutes crimes against humanity as the criminal acts listed in Article 7.1 (a), (e), (f), and (i) is quite straightforward. There has been credible reporting on abuses committed against gay men in Chechnya, including abduction, imprisonment, enforced disappearances, torture, and killings. All the described abuses have been approved by Chechen local government, with Moscow turning a blind eye to them. In many cases, violations were directly committed by Chechen security forces.
Sub-paragraph (k) of Article 7.1 provides a catch-all category, namely “[o]ther inhumane acts of similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.” Besides what has been mentioned above, the ill treatment carried out against gay men also includes starvation, electroshocks, and violent beatings. Even if these acts do not rise to the level of torture (I will certainly argue they do), they nonetheless fall within the “other inhumane acts” category under Article 7.
As defined in Article 7, paragraph 2, extermination “includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population.” While the statutes of ICTY, ICTR, and ICC differs on the exact wording, the jurisprudence of these tribunals have shared a common theme on interpreting “extermination” – intentional calculation and repetition of discriminatory and destructive acts or policy designed to bring about physical destruction, which can be met through deprivation of fundamental rights or imposition of excessive burden.
In Chechnya, over a hundred gay men or men suspected of being gay have been arrested since early April. They are being detained in secret locations and subjected to torture. In cases where victims were released “barely alive”, they were forcibly “outed” to their family and community. Chechnya’s campaign encourages relatives to “restore their family honor” through “honor killings” of these gay men. The abuses are blessed by the Russian Federation’s policy, including an anti-LGBT propaganda law passed in 2013. The law intends to revive “traditional family values”, and it effectively encourages stigmatization and discrimination against LGBT people and categorizes homosexual relationship as “second-class”. Such methods of persecution serve a purpose beyond the physical extermination. More importantly, for perpetrators, the killings and ill treatment, coupled with the abusive laws, serve a symbolic function that inhumanly deters gay men from presenting themselves or living as gay in society. Looking at the totality of the circumstances, conditions of life have been created through discriminatory and destructive polices in Chechen society, specifically imposed upon gay men because of their homosexuality. This leaves gay men no social or cultural space to survive, causing a “slow death” and ultimately physical destruction of this group in Chechnya.
“Widespread or Systematic Attack”
The jurisprudence of ICTY, ICTR, and ICC have agreed that the two elements “widespread” and “systematic” are disjunctive requirements for the purpose of the definition of crimes against humanity. It is sufficient to establish the crime has been committed when either requirement is met. The ongoing anti-gay campaign in Chechnya qualifies as a “widespread or systematic attack” under the definition of the crime on both fronts – “widespread” and “systematic.”
According to ICTY in its Kunarac decision, “widespread” refers to the large-scale nature of the attack. Isolated incidents of violent acts are deemed insufficient to meet this requirement. However, particular numerical threshold on the numbers of attacks or victims is not required. Instead, it should be assessed on a case-by-case basis, including the social context, the variety of geographical locations, and so on. Documented and confirmed by multiple rights groups and journalists, over a hundred gay men or men suspected of being gay have been abducted and detained, subject to abuses. These victims are from all around the Chechen Republic region, and Chechen authorities managed to hunt down over 100 gay men within one month. Considering hat most gay men in Chechnya tend to hide their homosexual identity, it is difficult to see such outcome as a narrow-scale or random action. With its policy encouraging family members to carry out “honor killings” of gay men, this campaign is affecting a much larger number of individuals.
The ICTY, ICTR, and ICC have maintained a common understanding of “systematic” – “organized nature of the acts of violence” and “the improbability of their random occurrence.” (See Kunarac decision, Mrksic decision, and Harun decision.) The tribunals have found that evidence of a pattern or methodical plan can be used to establish the “systematic” element. Chechnya’s anti-gay purge has displayed a repetition of similar criminal conduct, namely abduction, detention in secret locations, violent beatings, torture, and killings. Victims were selected because of, and only because of, their homosexuality. According to the interviews with some victims conducted by the New York Times and BBC, the security forces interrogate and torture detained gay men to obtain more information on the identities of other gay men they know. This shows a calculated methodical plan on “hunting down” more gay men by Chechen security forces. The repetition and similarity of these acts against a population with one specific identity, namely their homosexuality, also excludes the probability of random occurrence.
“A State or Organizational Policy”
The “policy” element is stated in paragraph 2 of Article 7, requiring the acts to be linked to a State or organization. According to the ICC, this means that a State or organization actively promotes or encourages such an attack against civilians. And “organizational” can be any type of organization or group that has the capacity to carry out such an attack. In its jurisprudence, the ICC has addressed that the “policy” element does not require the plans to be formally adopted, and a specific intent or rationale is not required. Instead, it can be inferred from the circumstances, by looking at the patterns of violent acts, evidence of organized planning, and perpetrators’ utterance.
In early April, only repetitive and organized abuses targeting gay men by unknown groups were documented. Later, credible sources and interviews with victims showed that Chechen security forces have been actively involved. The Chechen government has long discriminated against and stigmatised homosexuality. Since its anti-gay campaign was launched, the government took a step further by encouraging relatives to carry out “honor killings” of gay men. The Chechen government spokesperson, while entirely denying the existence of gay men in Chechnya, cynically said: “if such people exist in Chechnya, law enforcement would not have to worry about them, as their own relatives would have sent them where they could never return.”
While LGBT rights opposition is seen worldwide, violent anti-gay movements in many countries today are led by religious extremism or fundamentalism groups, such as the KKK groups in the United States, neo-Nazi groups in some European countries, groups and individuals that pledged allegiance to Islamic extremism, and so on. In comparison, Chechnya’s purge has its distinct character because of significant state involvement in the design and execution of the campaign. Such a systematic and state-sponsored manner is more analogous to the Nazi regime’s attempts to eliminate gay men, where they arrested, segregated, and tortured gay men, trying to eradicate their homosexuality, with the physical extermination of these men as an alternative. Recall the repetitive and similar patterns of abuses discussed above. Also recall that victims were tortured by security forces for identities of more gay men the government can track down. The aggregation of the circumstances of this campaign has presented intentional and organizational features, with direct or indirect links to government authorities.
As such, in no way can Chechnya’s anti-gay campaign be a random widespread violent crime against the civilian population. While the fact-finding access is limited as at the time of writing, assuming the facts that have been documented, the campaign constitutes crimes against humanity under international law. Recognizing this purge as crimes against humanity is critical on several fronts: first, it defends the integrity of international law by properly and timely recognizing and acknowledging international crime. Secondly, it clarifies the nature of this campaign and further galvanises international attention and acproper response. Furthermore, it may provide legal basis for the possibility of accountability in the future.
Russia withdrew its signature from the Rome Statute in 2016. The prevention and punishment of crimes against humanity, however, undoubtedly reflects customary international law. Actually, the gravity of crimes against humanity is so clear that very few would question its status as a jus cogens norm (peremptory norm). Jus cogens norms like the prohibition of genocide and the prohibition of torture have been codified in conventions, whilst the option of universal jurisdiction is reflected in related articles. Although crimes against humanity has not yet been codified in a distinct convention, ICJ Judges Higgins, Buergenthal and Kooijmans famously wrote in their separate opinions for the Arrest Warrant case: “a comparable international indignation at such act is not to be doubted.” This position has been further affirmed by the ILC in Article 9 of its proposed draft articles on crimes against humanity. Accordingly, a proper recognition of this purge as crimes against humanity provides possible accountability options under universal jurisdiction in other states.