Fergus Smith 12111058
fergustsmith@gmail.com
International Criminal Law and Transnational Criminal Law LLM University of Amsterdam
Supervisor – Professor Harmen van der Wilt Date of Submission – July 15th 2019
Why the concept of genocide in international criminal law should be expanded to afford protection of the LGBT Community
Contents
Introduction 3
Chapter One - Case Study on Chechnya. 7
1.1 – Profile of Chechnya 7
1.2 – The Purges of 2017 and 2019 8
1.3 – Victim Experiences 10
1.4 – Response of the Chechen Authorities 13
1.5 – Legal Characterization of the Chechen Gay Purges - Genocide? 14
1.6 – Conclusion 16
Chapter Two – Historical Developments and Context 18
2.1 – A short analysis of the definition of genocide 18
2.2 – Why was the definition of genocide restricted to Four groups? 22
2.3 – The LGBT Holocaust Experience 23
Chapter Three - Chapter Three – Is the inclusion of the LGBT community
in the Genocide Convention plausible? 28
3.1 – Stability 28
3.2 – Involuntary Association and Permanence 30
3.3 – Other arguments asserted for the exclusion of non-enumerated groups 32
3.3.1 – Historic Victimization 32
3.3.2 – Institutional Existence and Legal Personality 34
3.3.3 – Definability 35
3.3.4 – Identifiability 36
3.4 – Potential argument excluding the LGBT community - Theoretical impossibility of total extermination 36
3.5 – Conclusion 37
Chapter Four – What is the most appropriate legal basis for the inclusion of the LGBT community
into the definition of genocide? 39
4.1 – ‘Creative’ Interpretations – How have judiciaries responded to this restrictive definition? 39
4.1.1 – Jurisprudence of the ICTR – Akayesu 39
4.1.2 – Jurisprudence of Domestic Courts - Pinochet 42
4.1.3 – Should efforts be made to creatively interpret the current definition? 43
4.2 – Treaty amendment 46
4.2.1 – Optional Protocol to the Genocide Convention 46
4.2.2 – Article 121 of ICC Statute 48
4.3 – Have any states shown an indication that they may opt-in? 49
4.3.1 – International Human Rights Instruments 49
4.3.2 – Domestic implementation of the Genocide Convention 50
4.4 Legislate Nationally 51
4.5 Conclusion 51
Chapter Five – Is the inclusion of the LGBT community in the definition of genocide desirable? 53
5.1 – Fair Labelling 53
5.1.1 – What is ‘Fair Labelling’? 53
5.1.2 – Power of the Label of Genocide 54
5.1.3 – Is the label of ‘Genocide’ appropriate in instances of atrocities against LGBT persons? 56 5.1.4 – Attacks against LGBT persons cannot constitute the lesser label of a Crime Against
Humanity of Persecution 58
5.2 – Implications for amendment 60
5.2.1 – Weakening Genocide? 60
5.2.2 – Impeding acceptance of Genocide? 62
5.2.3 – Fragmentation of the concept of Genocide 64
5.3 – Conclusion 66
Conclusion 67
Abstract
This thesis aims to make the argument that the exclusion of the LGBT community from the Genocide Convention is unjustifiable. Chapter One features a case study of Chechnya and demonstrates that genocidal acts committed against the LGBT community can never constitute a genocide. Chapter Two then provides a short analysis of the Genocide Convention and then aims to establish the reason for this exclusion, demonstrating that the lack of victim status afforded to the LGBT community after the Holocaust led to their neglect during the drafting of the Genocide Convention. Chapter Three then proves that the inclusion of the LGBT community is plausible and that the arguments asserted for excluding political and economic groups are inapplicable to the LGBT community. Chapter Four then seeks to find a legal basis for the implementation of this change and finally determines that the most optimal legal avenue is the introduction of an Optional Protocol to the Genocide Convention. Chapter Five then considers the desirability of this change, and determines that from the perspective of ‘fair labelling’ the introduction of the LGBT community is a necessary change, and that this will not impede acceptance of the crime of Genocide, will not weaken the power of the label of genocide, and will not fragment the concept of genocide beyond any degree already experienced by other international crimes.
Abbreviations List
CIL Customary International Law ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia LGBT Lesbian, Gay, Bisexual and Transgender
OSCE Organisation for Security and Cooperation in Europe SOBR Special Division of First Responders
UDHR Universal Declaration of Human Rights
Introduction
The moral reprehension invoked by the term genocide is unparalleled within international criminal law. Dubbed the ‘crime of crimes’ by the International Criminal Tribunal for Rwanda (ICTR),1 the crime of ‘genocide’ connotes the intentional destruction of a permanent and stable community2. Schabas noted that genocide “belongs at the apex of the pyramid” of international crimes.3 The International Law Commission held that genocide is “the most horrible and atrocious of crimes … the supreme negation of civilization and solidarity” and “the worst of all [crimes].”4 Ratner remarks the term denotes the “pinnacle of evil”.5
Even though “[genocide] itself is as old as humanity”,6 the crime of genocide within international criminal law has only existed since its conception within the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) 1948. While the term genocide is regularly invoked within political discourse to simply mean mass murder,7 the definition adopted is much more stringent. The Genocide Convention restricts its application to instances of “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such [emphasis added].”8 Despite its status as one of the most widely ratified treaties within International Law, the Genocide Convention’s definition has been the subject of intense academic criticism due to its exclusivity, protecting only four enumerated groups.9
1 The Prosecutor v. Jean Kambanda (Judgement and Sentence), ICTR 97-23-S, International Criminal Tribunal for
Rwanda (ICTR), 4 September 1998 at para. 16. Johan D van der Vyver, ‘Prosecution and Punishment of the Crime of Genocide.(Dedicated to the United Nations High Commission for Human Rights: Genocide, War Crimes, and Crimes Against Humanity)’ (1999) 23 Fordham International Law Journal 286.
2 Convention on the Prevention and Punishment of the Crime of Genocide, Article II. See Chapter Two for
discussions of stability and permanence.
3 William A Schabas, Genocide in International Law the Crime of Crimes (Cambridge University Press 2009). 10–
11.
4 United Nations, ‘Yearbook of the International Law Commission’ (1994) volume 1, 214 at para. 21. 5 Steven Ratner, ‘The Genocide Convention after Fifty Years’ (1998) 92 Proceedings of the Annual Meeting
(American Society of International Law). 7
6 Jean-Paul Sartre, ‘On Genocide’ Genocide Old and New 11. 11
7 Nersessian notes how the term is applied to everything from ‘race-mixing’ to methadone programs. See David L
Nersessian, Genocide and Political Groups (Oxford University Press 2010). 216
8 Convention on the Prevention and Punishment of Genocide, Article II
9 Alycia Feindel, ‘Reconciling Sexual Orientation: Creating a Definition of Genocide That Includes Sexual
Orientation.’ (2005) 13(1–2) Journal of International Law. 214. See, for example, Beth van Schaack, ‘The Crime of Political Genocide: Repairing the Genocide Convention’s Blind Spot’ (1997) 106(7) Yale Law Journal.
Soifer explains that “[h]istory is crucial in identifying the groups that warrant particular legal protection.”10 This is true for the Genocide Convention, which sought to protect the groups history
had determined were the predominant victims of genocide.11 However, while history can greatly inform, it can also be disregarded. Within academic discussions on the restrictive definition of genocide, the exclusion of the LGBT community is largely ignored. This is despite the fact that the LGBT community has suffered a significant amount of persecution over history, and even today. In nine countries: Iran, Sudan, Saudi Arabia, Yemen, Brunei, Mauritania, Qatar, and parts of Somalia and Nigeria, homosexuality is punishable by death penalty.12 Currently, seventy countries criminalize homosexuality13, and over 50% of African states have embarked on the criminalization of homosexual sexual activity.14 These laws are often imposed with hate and violence, and leaders often express the intention of eradicating homosexuality and the LGBT community. Within Zimbabwe, the former president Mugabe publicly condemned homosexuality, encouraging an audience that “if you see people parading themselves as lesbians and gays, arrest them and hand them over to the police.”15 Within Chechnya, leader Kadyrov promised the extermination of all homosexual men by Ramadan of 2017.16 We can, therefore, see that the LGBT community suffers from state-sponsored discrimination at an enormous level.
However, despite these laws, the actions of these states, no matter how egregious, can never constitute genocide, despite the fact these laws mark an attempt to eliminate homosexuals and the
10 Aviam Soifer, Law and the Company We Keep (Harvard University Press 1995). 127
11 Schabas, Genocide in International Law the Crime of Crimes (n 3). 154 See also, Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (2nd ed, Lawbook Exchange, Ltd 2008). 62-83.
12 International Lesbian, Gay, Bisexual, Trans and Intersex Association and Lucas Mendos, ‘State-Sponsored
Homophobia Report’ (ILGA 2019). 14 See also Christina DeJong and Eric Long, ‘The Death Penalty as Genocide: The Persecution of “Homosexuals” in Uganda’ in Dana Peterson and Vanessa R Panfil (eds), Handbook of LGBT Communities, Crime, and Justice (Springer New York 2014) <https://doi.org/10.1007/978-1-4614-9188-0_16>. 346 13 International Lesbian, Gay, Bisexual, Trans and Intersex Association and Mendos (n 12). 536
14 DeJong and Long (n 12). 346
15 Heather Branton, ‘Lesbian and Gay in Southern Africa: Activists, Lovers, and Healers. (Feminist Visions).’
(2002) 24 Feminist Collections: A Quarterly of Women’s Studies Resources. 6. See also Living Zimbabwe, ‘Gays and Lesbians in Zimbabwe Fighting For Their Rights’ (Living Zimbabwe, 16 September 2009)
<http://www.livingzimbabwe.com/gays-and-lesbians-in-zimbabwe-and-their-rights/> accessed 11 June 2019.
16 Piet De Bruyn, ‘Persecution of LGBTI People in the Chechen Republic (Russian Federation)’ (Committee on
Equality and Non-Discrimination 2018) Doc. 14572
<http://semantic-pace.net/tools/pdf.aspx?doc=aHR0cDovL2Fzc2VtYmx5LmNvZS5pbnQvbncveG1sL1hSZWYvWDJILURXLWV4 dHIuYXNwP2ZpbGVpZD0yNDgwNSZsYW5nPUVO&xsl=aHR0cDovL3NlbWFudGljcGFjZS5uZXQvWHNsdC9 QZGYvWFJlZi1XRC1BVC1YTUwyUERGLnhzbA==&xsltparams=ZmlsZWlkPTI0ODA1>. 11
cultural identity that lays therein.17 In this regard, the LGBT community possesses a unique space
within the status of victims. Whilst it can be argued that criminalization provisions on homosexuality criminalize behaviour rather than an individual’s identity, it should be noted that the expression of sexuality is a fundamental aspect of one’s identity.18 Therefore, the criminalization of this behaviour is, in effect, criminalization of the identity of being homosexual. That is, to criminalize homosexuality is to force an individual to renounce a fundamental, undeniable aspect of their identity. These laws are not uncommon, and therefore, render the LGBT community to be in a particularly vulnerable situation in the international legal landscape.
The exclusion of the LGBT community, despite being victims to widespread state-sponsored homophobia that seeks to eliminate their existence, is thought-provoking. This absence legitimizes the view that attacks on the LGBT community are not as morally abhorrent as attacks committed against protected groups, despite possessing the stable and immutable traits emphasized by scholars to exist within racial, ethnic, religious and national groups, as will be discussed in Chapter Three. As put by the Polish delegate during drafting, “Genocide [is] basically a crime committed against a group of people who had certain stable and characteristic features in common.”19 Whilst the restriction of the definition of genocide to certain groups may be justified, the exclusion of other stable and permanent groups appears arbitrary.
The exclusion of the LGBT community from the definition of genocide naturally invokes a sense of bewilderment and indignation. Therefore, this thesis will examine the merit of this indignation and will seek to evaluate whether the inclusion of the LGBT community in the definition of genocide is both theoretically plausible and desirable. In Chapter One, this thesis seeks to demonstrate the problem at hand by applying a legal characterization to the Chechen Gay Purges. Chapter Two will explore the reasons for the non-inclusion of the LGBT Community, examining the historical context surrounding the creation of the Genocide Convention. Chapter Three then evaluates the arguments for justifying the exclusion of political and economic groups, and whether
17 Matthew Waites, ‘Genocide and Global Queer Politics’ (2018) 20 Journal of Genocide Research 44. 62 18 Don Lucas and Jennifer Fox, ‘The Psychology of Human Sexuality’ (Noba)
<https://nobaproject.com/modules/the-psychology-of-human-sexuality> accessed 13 June 2019.
19 UN GAOR (3rd Session, 64th Meeting), ‘Continuation of the consideration of the draft convention on genocide:
they apply to the LGBT community. Chapter Four then analyzes possible means of implementation of the LGBT community into the definition of genocide, evaluating creative interpretations from international and domestic case law, and the possibility of treaty amendment. Chapter Five finally analyzes the desirability of this inclusion, focusing on the concept of ‘fair labelling’, and evaluating arguments previously asserted against the amendment of the Genocide Convention.
Chapter One – Case Study on Chechnya.
This case study explores the atrocities committed against the LGBT community by the Chechen authorities. Through exploring the surrounding policies, victim experiences, and the response of the authorities, this chapter aims to demonstrate that, despite the genocidal nature of the atrocity, these purges cannot be considered a genocide due to the status of the LGBT community as victims within international criminal law.
1.1 Profile of Chechnya
In 2017, the republic of Chechnya, a federal subject of Russia, began the arrest and detention of men suspected by the authorities of being homosexual.20 Chechnya, despite being a devolved power under the state of Russia, is governed autonomously with an independent parliament and an independent government.21 After a bloody battle with Russia for independence in 1994, Putin established direct rule of Chechnya in 2000.22 Ramzan Kadyrov became the leader in 2006,23 and has since introducing a system of oppression, featuring forced disappearances, extra-judicial executions and torture of Chechen citizens, particularly against the LGBT community, alleged drug dealers, and terrorists.24 Kadyrov has introduced his vision of a traditional society and has vowed to clear Chechnya of all ‘deviancies’.25
Human rights organizations and non-governmental organizations are frequent targets of the Chechen government.26 The Human rights group “Memorial” has previously had to evacuate
20 Human Rights Watch, ‘Anti-LGBT Violence in Chechnya’ (Human Rights Watch, 4 April 2017)
<https://www.hrw.org/news/2017/04/04/anti-lgbt-violence-chechnya> accessed 31 May 2019.
21 Russian LGBT Network, ‘“They Said That I’m Not a Human, That I Am Nothing, That I Should Rather Be a
Terrorist, than a Faggot” LGBT Persecution in Northern Caucasus’ (Russian LGBT Network 2018) <https://www.ilga-europe.org/sites/default/files/chechnya_report_by_rus_lgbt_n_31_july_2017.pdf>. 5-6
22 ‘Chechnya Profile’ (17 January 2018) <https://www.bbc.com/news/world-europe-18190473> accessed 31 May
2019.
23 ibid.
24 Wolfgang Benedek, ‘OSCE Rapporteur’s Report under the Moscow Mechanism on Alleged Human Rights
Violations and Impunity in the Chechen Republic of the Russian Federation’ (Organization for Security and
Co-operation in Europe 21 December) ODIHR.GAL/76/18/Corr.1
<https://www.osce.org/odihr/407402?download=true>.13-20
25 Russian LGBT Network (n 21). 5 26 Benedek (n 24). 20
Chechnya due to the murder of their lead researcher, Natalya Estemirova.27 Human Rights Watch
has previously commented that the “vacuum of human rights monitoring and reporting” resulting from lack of local human rights organizations is “significant and painful.”28 Therefore, information about the actions of the government in Chechnya is scarce.
Homophobia is rampant within both the Russian Federation and Chechnya. A report from a polling agency determined that 83% of Russians believe homosexuality to be “always reprehensible” or “almost always reprehensible.”29 Within Chechnya, homosexuality is viewed as a disease and often means that homosexuals are shunned by their families.30 Honour killings remain a part of Chechen culture, and families are encouraged to “find a proper solution” and to “get rid of sick members of the family.”31 This is perceived as necessary, as tolerating an LGBT family member can cause the whole family to be held criminally liable.32 Incidents of honour killings are not investigated by local authorities, and therefore, an exact number of victims within this atrocity cannot be accounted for.33 Families regularly perform ‘corrective rapes’, forced marriages, exorcisms and executions on LGBT family members.34
1.2 The Purges of 2017 and 2019
“The persecution of men and women suspected of homosexuality never ceased,” …“The only thing that has changed is its scale.”35
27 ‘Chechnya Persecuted for Defending Human Rights | Amnesty International’
<https://www.amnesty.org/en/latest/campaigns/2018/02/chechnya-persecuted-for-defending-human-rights/> accessed 9 June 2019.
28 Human Rights Watch, ‘Memorial, International Human Rights Groups Return to Chechnya’ (Human Rights Watch,
16 December 2009) <https://www.hrw.org/news/2009/12/16/memorial-international-human-rights-groups-return-chechnya> accessed 31 May 2019.
29 Levada Centre, ‘Taboo In The Field Of Sex And Reproduction (ТАБУ В СФЕРЕ СЕКСА И РЕПРОДУКЦИИ)’
<http://www.levada.ru/2018/01/11/17389/?fromtg=1>. See also De Bruyn (n 16). 6
30 De Bruyn (n 16). 9 31 Benedek (n 24). 14
32 Russian LGBT Network (n 21). 23
33 The Moscow Times, ‘39 People Murdered in Honor Killings in Russia’s North Caucasus, Dutch NGO Reports’
(The Moscow Times, 7 December 2018) <https://www.themoscowtimes.com/2018/12/07/39-people-murdered-honor-killings-russias-north-caucasus-dutch-ngo-reports-a63748> accessed 31 May 2019.
34 De Bruyn (n 16). 10
35 Igor Kochetkov, the program director for the Russian LGBT Network. See Andrew Roth, ‘Chechnya: Two Dead
and Dozens Held in LGBT Purge, Say Activists’ The Guardian (14 January 2019) <https://www.theguardian.com/world/2019/jan/14/chechnya-two-dead-and-dozens-held-in-lgbt-purge-reports> accessed 31 May 2019.
The anti-gay purges within Chechnya occurred primarily in two large instances in 2017 and 2019. The first wave occurred from December 2016 to February 2017, and began again in March 2017 until May 2017.36 A third wave was prevented by international outrage.37 The ‘crackdowns’ were first exposed by Novaya Gazeta, an independent Russian newspaper, on the 1st of April 2017.38 At least one hundred men were captured and detained in the 2017 purges, with at least three known deaths.39 These detained men were subject to repeated torture, ill-treatment and were imprisoned for long periods.40 Whilst some detainees were released to their families, victims are still rendered incredibly vulnerable due to the local homophobic intolerance.41 A notable victim was Zelim Bakayev, a Chechen pop-star who has not since been located and is presumed to have died following abduction.42
It was reported in January 2019 that the purges had renewed.43 Around forty people are believed to be detained, and at least two individuals after sustaining injuries during torture.44 These 2019 arrests saw the Chechen authorities begin to seize the travel documents of the detainees.45 Igor Kochetkov, head of Russian LGBT network, a Russian activist group focusing on the rights of the LGBT community, asserted that “[e]verything is being done so that they can’t leave the country.”46
36 Benedek (n 24). 13
37 ibid. 13
38 De Bruyn (n 16). 3
39Amnesty International, ‘Urgent Action: Men Suspected Gay Abducted, Tortured or Killed’ (2017)
<https://www.amnesty.org/download/Documents/EUR4660232017ENGLISH.pdf>.
40 ibid. 41 ibid.
42 De Bruyn (n 16). 9
43 ‘New Wave of Persecution against LGBT People in Chechnya: Around 40 People Detained, at Least Two Killed |
Российская ЛГБТ-Сеть’ <https://lgbtnet.org/en/newseng/new-wave-persecution-against-lgbt-people-chechnya-around-40-people-detained-least-two-killed> accessed 31 May 2019.
44 ibid.
45 Igor Kochetkov, interviewed by the BBC, see ‘“Dozens Held in New Chechnya Gay Purge”’ (14 January 2019)
<https://www.bbc.com/news/world-europe-46871801> accessed 31 May 2019.
46 Igor Kochetkov, interviewed by the Moscow Times, see The Moscow Times, ‘2 Tortured to Death in New
Anti-Gay Purge in Chechnya, Activist Says’ (The Moscow Times, 14 January 2019) <https://www.themoscowtimes.com/2019/01/14/tortured-to-death-in-new-anti-gay-purge-in-chechnya-activist-says-a64124> accessed 10 May 2019.
The Russian LGBT Network and Novaya Gazeta suspect that the real number of fatalities “could be much higher.”47 The above numbers also cannot account for victims who were murdered by
their families as a result of the Chechen authorities identifying them to their community as a member of the LGBT community.48 No records exist to document victim experiences after release.49 Testimonies offered by victims suggest potentially dozens of honour killings subsequent to the purges.50 Only one victim, Maxim Lapunov, filed an official complaint to the authorities.51 Therefore, we should take the above figures as minimums when regarding the scale of the purges.
1.3 Victim Experiences
“You bring shame on your people; you shouldn’t exist. We will catch all of you. We will fight homosexuality in the Chechen Republic”52
Detained individuals were subject to intense torture and degrading treatment. A victim, speaking to the British Broadcasting Company (BBC) under the alias ‘Ruslan’, recounted that “[i]f beating you with their hands and feet is not enough, they use electric shock,” and that "[t]hey have a special black box and they attach wires to your hands or ears."53 Victims were beaten with plastic tubes, police batons, and cables.54 These individuals were denied bedding, being forced to sleep on the concrete floor,55 as well as food and water.56 Testimonies recount being allowed three hours of sleep per night and even denied the right to use the bathroom.57 A small number of victims were
47 ‘Journalists Fear Reprisals for Exposing Purge of Gay Men in Chechnya | World News | The Guardian’
<https://www.theguardian.com/world/2017/apr/14/journalists-fear-reprisals-for-exposing-purge-of-gay-men-in-chechnya> accessed 31 May 2019.
48 Russian LGBT Network (n 21). 22 49 ibid. 22
50 ibid. 22
51 Benedek (n 24). 15
52 Victim interviewed under the alias “C.D.” by the Russian LGBT Network repeating the words of a perpetrator,
see Russian LGBT Network (n 21). 11
53 Sarah Rainsford, ‘“They Want to Exterminate Us”, Says Chechen Gay Man’ (21 April 2017)
<https://www.bbc.com/news/world-europe-39665711> accessed 31 May 2019.
54 Human Rights Watch, ‘Russia: New Anti-Gay Crackdown in Chechnya’ (Human Rights Watch, 8 May 2019)
<https://www.hrw.org/news/2019/05/08/russia-new-anti-gay-crackdown-chechnya> accessed 9 June 2019.
55 Russian LGBT Network (n 21). 13 56 Benedek (n 24). 9
released in life-threatening conditions, and at least three attempted suicide following their detention.58
The victims within the Chechen gay purges tell consistent accounts of the methods and aims of their captors.59 The arrests followed a distinct pattern, with victims being contacted through the social media profiles of previously detained individuals by the Special Division of First Responders (SOBR).60 Victims were brought to specially prepared unofficial facilities.61 The reason for the torture is consistently identified to be the further identification of LGBT individuals within Chechnya.62 Ruslan recounts that the Kadyrov militia “found one and beat him until he gave them the names of others.”63 The Organisation for Security and Cooperation in Europe (OSCE) reported that “[t]he confessions sought related often to the names and details of others, like other LGBTI persons.”64 The OSCE determined that “[t]he purpose was to make them confess that they were gay and to give names of other gays.”65
Victims point to the extermination of homosexual men in the republic of the ultimate goal of Kadyrov’s government, with Ruslan reporting that “[n]ow [the aim] is the extermination of gay men, so that there are none left in the republic.”66 Human Rights Watch observed that the testimony of Ruslan is consistent with its own investigation, suggesting an “unprecedented and organized campaign” to exterminate members of the LGBT community within Chechnya.67 The perpetrators were state officials, employees of the Department of Internal Affairs, as well as local police officers, SOBR, and military divisions.68
58 ibid. 15
59 ibid. 9 60 ibid. 12
61 Human Rights Watch, ‘“They Have Long Arms and They Can Find Me” | Anti-Gay Purge by Local Authorities in
Russia’s Chechen Republic’ (Human Rights Watch, 26 May 2017) <https://www.hrw.org/report/2017/05/26/they-have-long-arms-and-they-can-find-me/anti-gay-purge-local-authorities-russias> accessed 31 May 2019.
62 De Bruyn (n 16). 9 63 Rainsford (n 53). 64 Benedek (n 24). 9 65 ibid. 13 66 Rainsford (n 53). 67 ibid. 68 Russian LGBT Network (n 21). 15
Victims were forced to “shame their sins” to their families.69 This involved a pseudo-ceremony
designed both to humiliate the victims and pressure family members into executing the individual. Relatives were told to “find a proper solution” and to “get rid of the sick members of the family.”70 Relatives were guaranteed at these ceremonies to not face prosecution.71 One victim formulated this message in the form of “Either you kill your kid or we will do it for you.”72 Most victims were outed to their relatives through these ceremonies.73 Every outed victim experienced violence from family members as a result of these ceremonies.74 Victims were assured that they could not flee and that authorities would continue to follow their movements following release.75
When returned to their families, victims were not free from violence and threat. As discussed above, the practice of ‘Honour Killings’ remains prevalent within Chechen culture.76 A combination of cultural traditionalism, defined political discourse, and practice of Sharia law create a distinctly dangerous environment for the LGBT community.77 If a family does not denounce an LGBT relative, they also vulnerable to security forces.78 The most ‘effective’ way to do this is through an honour killing, resulting in even sympathetic and reluctant families in performing honour killings.79 Ruslan notes that “[e]ven if the security forces don't deal with me, my own relatives definitely will."80 Ruslan further explained that when some detainees were never found “their relatives didn’t even bother looking for them, because they’d brought shame on them.”81 Ruslan noted that “[i]t's not just the security forces, my own relatives won't forgive me. It's a permanent stain.”82 Victims murdered by family members are likely to be excluded from the
69 Benedek (n 24). 14 70 ibid. 14 71 Russian LGBT Network (n 21). 16 72 Benedek (n 24). 14 73 De Bruyn (n 16). 9 74 Russian LGBT Network (n 21). 22 75 ibid. 16
76 Yu Antonova and SV Siradzhudinova, ‘Killed by Gossip: “Honor Killings” of Women in the North Caucasus’
<https://www.srji.org/upload/medialibrary/a3d/PPI-2018-12-18-Honor-killings-Eng-final.pdf>. 77 Russian LGBT Network (n 21). 21 78 ibid. 22 79 ibid. 22 80 Rainsford (n 53). 81 ibid. 82 ibid.
official count, as the “vast majority of such murders [remain] hidden”83, and local police do not
investigate these disappearances.84
1.4 Response of the Chechen Authorities
"The [reports are] nonsense,"… "We don't have any gays."… "[if] there are any take them to Canada, praise be to God. Take them far from us so we don't have them at home. To purify our blood, if there are any here, take them." – Ramzan Kadyrov85
Both the Chechen and Russian authorities have consistently denied the reports of the Chechen gay purges. A spokesperson for the Chechen government, Alvi Karimov, maintained that “[a]ll this, […] is untruth and misinformation. There are no prisons and places of detention in the Chechen Republic that are not part of the FSIN system.”86 He later denied the existence of the LGBT community within Chechnya, maintaining that “[i]t is impossible to detain and oppress those who simply don’t exist in the republic”, and that if there were any “the law enforcement agencies wouldn’t need to have anything to do with them, because their relatives would send them to a place of no return.”87
Kadyrov himself also dismissed the claims, insisting that “not one person” in Chechnya commits human rights violations.88 He dismissed the claims as an attempt by activists to seek profit,
asserting that "[s]o-called human rights activists make up all sorts of nonsense for money."89 There
83 Antonova and Siradzhudinova (n 76). 8 84 The Moscow Times (n 33).
85 Kadyrov interviewed for HBO TV’s “Real Sports with Bryant Gumbel”, translation and transcription available at
The Moscow Times, ‘Kadyrov Calls for Purging Chechnya of Gay Men, But Insists None Live There’ (The Moscow Times, 15 July 2017) <https://www.themoscowtimes.com/2017/07/15/kadyrov-wants-gay-purge-but-insists-there-are-no-gay-men-in-chechnya-a58399> accessed 31 May 2019.
86 ‘In Chechnya, Commented on the Message of the Resumption of the Persecution of Gays (В Чечне
Прокомментировали Сообщение о Возобновлении Преследования Геев)’ (РБК) <https://www.rbc.ru/rbcfreenews/5c38a3109a7947525e179092> accessed 31 May 2019. This quote was translated from Russian, and originally states: “Все это, если говорить литературным языком, неправда и дезинформация. В Чеченской Республике нет никаких тюрем и мест лишения свободы, не входящих в систему ФСИН”
87 Russian LGBT Network (n 21). 25
88 Sarah Rainsford, ‘Chechen Leader: Gay Activists Invent Nonsense for Money’ (29 January 2018)
<https://www.bbc.com/news/world-europe-42854814> accessed 10 May 2019.
appears to be high level public official endorsement of the gay purges, with the Speaker of the Chechen Parliament, Magomed Daudov and second in command to Kadyrov,90 being present at
several torture sessions,91 and perpetrators forwarding videos of torture sessions to Daudov personally.92 Kadyrov himself announced that all homosexuals within Chechnya would be executed by Ramadan 2017,93 and maintains that the removal of homosexuals would “purify” the blood of the Chechen people.94 Kadyrov endorses the practices of honour killings.95
When confronted with evidence of the 2019 purges, the Chechen government once again dismissed the allegations, with spokesperson Dzhambulat Umarov requesting that reporters “[d]on’t sow the seeds of sodomy in the blessed land of the Caucasus,” and continued “[t]hey will not grow [like] in perverted Europe … Leave the Chechen republic alone.”96 This demonstrates that the Chechen government does not perceive homosexuality as a natural phenomenon, but rather the result of external influences of Western culture that they wish to erase. Two years after the beginning of these purges, not one person has been held accountable for these actions by either Chechen authorities or Russian authorities.97
1.5 – Legal Characterization of the Chechen Gay Purges - Genocide?
The definition of ‘Genocide’, contained from Article II of the Genocide Convention,98 prohibits: “[…] any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
90 Mirren Gidda On 5/26/17 at 12:56 PM EDT, ‘Russia Is Investigating Reports of Chechnya’s Anti-Gay Crackdown’
(Newsweek, 26 May 2017) <https://www.newsweek.com/chechnya-gay-purge-ramzan-kadyrov-russia-human-rights-616445> accessed 31 May 2019.
91 Benedek (n 24). 14
92 Russian LGBT Network (n 21). 17 93 De Bruyn (n 16). 11
94 The Moscow Times (n 85).
95 Human Rights Watch, ‘“They Have Long Arms and They Can Find Me” | Anti-Gay Purge by Local Authorities in
Russia’s Chechen Republic’ (n 61).
96 ‘Chechnya Denies New Gay Purge, Warns Critics Not to “Sow Seeds of Sodomy”’
<https://www.themoscowtimes.com/2019/01/15/chechnya-denies-new-gay-purge-warns-critics-not-to-sow-seeds-of-sodomy-a64143> accessed 31 May 2019.
97 Amnesty International, ‘Russia: Two Years after Chechnya’s “Gay Purge”, Victims Still Seek Justice as LGBTI
Defender Receives Death Threats’ (Amnesty International Canada, 1 April 2019)
<https://www.amnesty.ca/news/russia-two-years-after-chechnya%E2%80%99s-%E2%80%98gay-purge%E2%80%99-victims-still-seek-justice-lgbti-defender> accessed 31 May 2019.
(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 […]”99
This contains three distinct elements: one of the enumerated acts; committed against an enumerated group, with the specific intention of destroying that group in whole or in part, as such.100 This definition will receive detailed analysis in Chapter 2.
The first requirement we will analyze is the enumerated acts. Whilst the number of confirmed fatalities occurring as a direct result of the torture experienced is low; the prolonged torture would constitute paragraph (b), “Causing serious bodily or mental harm to members of the group.”101 The ICC Elements of Crimes Article 6(b)(1) states that this conduct includes “acts of torture”.102 The trial chamber in Akayesu iterated that Article II(b) includes “acts of torture, be they bodily or mental, inhumane or degrading treatment, persecution”.103 Torture, as defined in the UN Convention Against Torture (CAT), connotes “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, […], information or a confession […]”.104 Victim testimony reports of intense beatings and electric shock over the period of multiple days which would likely meet the “severe pain or suffering element”, and that this was conducted to obtain information about other homosexual men, and therefore, meets the purpose requirement. Therefore, we can determine that the Chechen gay purges meet the enumerated act requirement.
The next requirement is the ‘specific intention’ requirement. As noted above, the Chechen leader Kadyrov explicitly articulated an intention to exterminate all homosexual men by Ramadan of
99 Convention on the Prevention and Punishment of the Crime of Genocide, Article II. Rome Statute of the
International Criminal Court, Article 6.
100 Sonali B Shah, ‘The Oversight of the Last Great International Institution of the Twentieth Century: The
International Criminal Court’s Definition of Genocide’ (2002) 16(1) Emory International Law Review. 356
101 Convention on the Prevention and Punishment of the Crime of Genocide, Article II(b) 102 International Criminal Court Elements of Crimes, Article 6(b)(1), footnote 3.
103 The Prosecutor v. Jean-Paul Akayesu (Trial Judgement), ICTR-96-4-T, International Criminal Tribunal for
Rwanda (ICTR), 2 September 1998 at paragraph 504
2017.105 Kadyrov regularly speaks ill of homosexuals, stating that “they are devils. They are for
sale, they are not people.”106 As noted above, the attacks are committed by Chechen authorities,
and features the endorsement, and seldom presence, of high-level public officials. This also included Aiub Kataev, the head of the Ministry of Internal Affairs, and Abuzaid Vismuradov, head of the SOBR.107 Whilst this thesis does not assert that the evidence provided is sufficient to establish the specific direction requirement exists beyond a reasonable doubt, there is certainly a prima facie case. Therefore, we can determine that this requirement is met by the Chechen Gay Purges. The evidence of endorsement of high-level public officials and the systematic nature of the attacks would also meet the ICC’s ‘contextual element’, requiring that the “conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.”108
Lastly, the attack must have been directed towards one of the four protected groups. The convention specifies that only national, ethnical, religious and racial groups are protected. This list is exhaustive, and the terms are given their plain text meaning.109 The LGBT community is not included in any of these four enumerated groups. Therefore, even though an attack has been committed with an intention to destroy the LGBT community as a group, this does not constitute genocide, as the Genocide Convention does not protect the LGBT community.
1.6 Conclusion
When speaking colloquially, there is no better word to describe the acts of the Chechen Government as genocidal. The head of government has expressed a direct intention to eliminate the LGBT community, the attacks are systematic and coordinated, and endorsed by high-level politicians, and constitute the enumerated act requirement in terms of severity. The only element in which the purges fail to satisfy the definition of genocide under Article II is within the
105 Benedek (n 24). 14 106 The Moscow Times (n 85). 107 Russian LGBT Network (n 21). 17
108 Rome Statute of the International Criminal Court Elements of Crimes, Article 6.
109 As according to the Vienna Convention on the Law of Treaties, Article 31(1). See also Evelyne Schmid, Taking Economic, Social and Cultural Rights Seriously in International Criminal Law (Cambridge University Press 2015) <http://ebooks.cambridge.org/ref/id/CBO9781107519107> accessed 11 July 2019. 229
enumerated group requirement. The LGBT community possesses a unique status under International Law in that they can also not constitute the basis of a Crime Against Humanity of Persecution, as will be explored in Chapter 5.1.4, the prohibition of discrimination against the LGBT community does not reach the status of customary international law, therefore, preventing the application of this label. Most atrocities that are not covered by the Convention that are genocidal in nature, including the instances of mass-murder and starvation within Cambodia under the Khmer Rouge regime, would constitute a Crime Against Humanity of Persecution. However, again, the Chechen Gay Purges fail to meet this definition as the LGBT community is, once again, not an appropriate group for targeting.
The legal analysis of the Chechen Gay Purges suitably introduces the purpose of this thesis. If the Chechen authorities were conducting attacks against a national, religious, ethnic or racial group, both the definitions of the Crime Against Humanity of Persecution and genocide would be met, but however, the status of the LGBT community renders both crimes inapplicable. The next chapter of this thesis aims to answer the question: Why was the LGBT community excluded from the definition of genocide?
Chapter Two – Historical Developments and Context 2.1 – A Short Analysis of the Definition of Genocide
The Convention on the Prevention and Punishment of the Crime of Genocide was officially adopted by the United Nations (UN) General Assembly in 1948.110 The Holocaust was a primary catalyst for the adoption of this convention.111 This Convention was drafted in only two years, a record time for a UN treaty.112 An American delegate urged during negotiation that it “should be adopted as soon as possible, before the memory of the barbarous crimes which had been committed faded from the minds of men”,113 demonstrating the direct importance of the Holocaust to the creation of the Genocide Convention.
Today, there are 149 state parties to the Genocide Convention.114 The definition of genocide within the Genocide Convention has been affirmed to reach the status of customary international law.115 This definition was adopted verbatim by the statutes of the ad hoc tribunals,116 the International Criminal Court (ICC),117 and the International Law Commission’s Code of Crimes against the Peace and Security of Mankind,118 despite extensive academic criticism of the limitations of the definition in failing to afford protections to other groups.119
The International Court of Justice (ICJ), in an advisory opinion, on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, highlighted the dual purpose of the
110 William Korey, An Epitaph for Raphael Lemkin (Jacob Blaustein Institute for the Advancement of Human
Rights). 1.
111 Steven Ratner (n 5). 7 112 ibid. 1
113 UN GAOR (3rd Session, 64th Meeting), ‘Continuation of the consideration of the draft convention on genocide:
report of the Economic and Social Council’ (1948) UN Doc. A/C.6/SR.64 at 4-5. See ibid. 7.
114 ‘United Nations Treaty Collection’
<https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-1&chapter=4&clang=_en> accessed 1 June 2019.
115 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion,
[1951] ICJ Rep 15, ICGJ 227 (ICJ 1951), 28 May 1951, International Court of Justice.
116 Statute of the International Criminal Tribunal for Rwanda, Article 2; Statute of the International Criminal Tribunal
for the Former Yugoslavia, Article 4
117 Rome Statute of the International Criminal Court, Article 6
118 William Schabas, ‘The “Odious Scourge”: Evolving Interpretations of the Crime of Genocide’ (2006) 1 Genocide
Studies and Prevention 93. 97
119 Stuart Stein, ‘Geno- and Other Cides: A Cautionary Note on Knowledge Accumulation’ (2002) 4 Journal of
Genocide Convention, with "[i]ts object on the one hand is to safeguard the very existence of certain human groups and on the other, to confirm and endorse the most elementary principles of morality."120
Article II of the Convention introduces the definition of genocide. Article II states that: “In the present Convention, genocide means 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, or (e) forcibly transferring children of the group to another group”121
This offers a much narrower definition than the one proposed by Rafael Lemkin, restricting the destruction to certain acts and four enumerated groups.122 Lemkin originally articulated genocide to mean a “[c]oordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups with the aim of annihilating the groups themselves.”123 Lemkin believed that protection should be to “family of mind”, and groups from religious to criminal, and that any family of mind should be protected.124 Some scholars believe that when Lemkin mentions
“nations”, he instead means any “family of mind”, any community sharing ideas and sentiments.125
This also demonstrates a departure from the General Assembly Resolution 96(1), which defined genocide as ‘on the notion of "denial of the right of existence of entire human groups”.126 This was
120 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion,
[1951] ICJ Rep 15, ICGJ 227 (ICJ 1951), 28 May 1951, International Court of Justice 12.
121 The Convention on the Prevention and Punishment of the Crime of Genocide, Article II. 122 Nasour Koursami, The ‘contextual Elements’ of the Crime of Genocide (Asser Press 2018). 6 123 Lemkin (n 11). 79
124 Douglas Irvin-Erickson, ‘Genocide, the “Family of Mind” and the Romantic Signature of Raphael Lemkin’
(2013) 15 Journal of Genocide Research 273. 273
125 ibid. 273
126 Guglielmo Verdirame, ‘The Genocide Definition in the Jurisprudence of the Ad Hoc Tribunals’ (2000) 49
deliberate.127 This has been extensively criticized, including by the 1978 and 1985 reports from
the Special Rapporteurs of the UN.128 Few definitions within International Law have been quite as
contentious as the definition of genocide.129
Shah identifies that genocide possesses three essential elements: “the extent of destruction, intent, and the protected groups.”130
Whilst genocide is defined colloquially simply as mass murder, within international law genocide has a much more stringent definition. Genocide is limited to those instances in which the perpetrator possesses a specific intent to destroy the whole of the group131. The trial chamber in Rutaganda specified that “[g]enocide is distinct from other crimes because it requires dolus specialis, a special intent.”132 It is the specific intent element that primarily separates the crime of genocide from Crimes against Humanity.133 This is the central element of genocide.134 It is not sufficient that the perpetrator has knowledge of this, but the accused must “seek the destruction in whole or in part of a group.”135 This renders genocide as a “goal-oriented” crime.136 This intention must be directed towards the collective capacity of the group, rather than the persons that form the group.137 Therefore, the victim of genocide is not just the individual, but also the group itself.138 If a group is targeted in part, then “the intention to destroy must target at least a substantial part of
127 Steven Ratner (n 5). 2
128 Henryr Huttenbach, ‘From the Editor: Towards a Conceptual Definition of Genocide’ (2002) 4 Journal of
Genocide Research 167. 168
129 Mathias Thaler, ‘Political Imagination and the Crime of Crimes: Coming to Terms with “genocide” and
“Genocide Blindness”’ (2014) 13 Contemporary Political Theory 358. 360
130 Shah (n 100). 356.
131 Convention on the Prevention and Punishment of the Crime of Genocide, Article II
132 The Prosecutor v. Georges Anderson Nderubumwe Rutaganda (Judgement and Sentence),
ICTR-96-3-T, International Criminal Tribunal for Rwanda (ICTR), 6 December 1999 at para. 59
133 Matthew Lippman, ‘The Convention on the Prevention and Punishment of the Crime of Genocide: Fifty Years
Later’ (1998) 15(2) Arizona Journal of International and Comparative Law. 415, 423.
134 Steven Ratner (n 5). 10
135 Payam Akhavan, Reducing Genocide to Law Definition, Meaning, and the Ultimate Crime (Cambridge
University Press 2012) <http://dx.doi.org/10.1017/CBO9781139028943> accessed 1 June 2019. 44
136 Kai Ambos, ‘What Does “Intent to Destroy” in Genocide Mean?’ (2009) 91 International Review of the Red
Cross 833. 835
137 Steven Ratner (n 5). 10
138 The Prosecutor v. Jean-Paul Akayesu (Trial Judgement), ICTR-96-4-T, International Criminal Tribunal for
the group”,139 but “it is not necessary to intend to achieve the complete annihilation of a group
from every corner of the globe.”140
Article II, in paragraphs (a) to (c), enumerates the five acts of genocide. This list is exhaustive,141 and only requires that one of the five acts is committed with the specific intent to destroy in whole or in part one of the four enumerated groups.142 Whilst the term genocide implies a large-scale attack, the ICC Elements of Crimes explicitly states that attacks committed against even just one person with this specific intention suffice.143 However, the ICC Elements of Crimes added a ‘contextual element’, requiring that “[t]he conduct took place in the context of a manifest pattern of similar conduct directed against that group that could itself effect such destruction”, requiring more than one attack.144 The International Criminal Tribunal for the former Yugoslavia (ICTY) explicitly departed from the ICC in Krstić, stating that “the existence of a plan or policy is not a legal ingredient in the crime of genocide.”145 The ICC further requires that the conduct produces a “concrete threat to the existence of the targeted group”,146 with the elements of crimes requiring that the “conduct could itself effect such destruction.”147
Genocide is also limited to those instances in which attacks are committed against national, ethnical, racial, and religious groups. If a targeted group does not constitute one of the aforementioned categories, the court must conclude that genocide did not occur.148 This is significant, considering that the General Assembly Resolution 96(1) extended protections to both
139 Prosecutor v. Goran Jelisic (Trial Judgement), IT-95-10-T, International Criminal Tribunal for the former
Yugoslavia (ICTY), 14 December 1999 para. 82.
140 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro) (International Court of Justice, 26 February 2007), para. 199.
141 Schmid (n 109). 229
142 The Prosecutor v. Jean-Paul Akayesu (Trial Judgement), ICTR-96-4-T, International Criminal Tribunal for
Rwanda (ICTR), 2 September 1998 at para 497. See also, ibid. 225
143 Prosecutor v. Radislav Krstic (Appeal Judgement), IT-98-33-A, International Criminal Tribunal for the former
Yugoslavia (ICTY), 19 April 2004 at para 21
144 Akhavan (n 135). 46
145 Prosecutor v. Radislav Krstic (Appeal Judgement), IT-98-33-A, International Criminal Tribunal for the former
Yugoslavia (ICTY), 19 April 2004 at para. 225.
146 Prosecutor v. Bashir (Decision on the Prosecution’s Application for a Warrant of Arrest Against Omar Hassan
Ahmad Al Bashir), ICC-02/05-01/09-3, International Criminal Court (ICC), 4 March 2009, para. 124.
147 Rome Statute of the International Criminal Court, Article 6.
148 Howard Shneider, ‘Political Genocide in Latin America: The Need for Reconsidering the Current Internationally
Accepted Definition of Genocide in Light of Spanish and Latin American Jurisprudence’ (2010) 25 American University International Law Review. 317
political groups and ‘other groups’.149 The drafters perceived these four groups in a “dynamic and
synergistic relationship”, each helping to define the scope and limitations of each other.150
Membership to a group is “a subjective rather than objective concept.”151 The Trial Chamber in Bagilishema explained that “if a victim was perceived by a perpetrator as belonging to a protected group, the victim could be considered by the Chamber as a member of the protected group, for the purposes of genocide.”152
2.2 – Why was the Definition of Genocide Restricted to Four groups?
Even though some delegates, including Uruguay, “wished international protection to be extended to all groups without exception”,153 many supported a restrictive definition. The exclusion of other groups was mostly the result of efforts led by the Soviet Union.154 The issue of inclusion of political groups was the most severe disagreement during the drafting process.155 This exclusion was primarily based on four arguments, the first two are slight, with the Soviet delegate raising an etymological argument that the word genocide means “the destruction of races or nations”, and that persecution of political groups was more appropriate in the broader context of human rights.156 Not much consideration was given to these two arguments.157 These states also justified the restriction of the definition of genocide to the four enumerated groups, and the exclusion of other, most notably political, groups based on such excluded groups being “mutable, imprecise, transient, unstable, and lacking in distinguishing characteristics”,158 and other groups having voluntary
149 ibid. 318
150 William A Schabas, ‘Groups Protected by the Genocide Convention: Conflicting Interpretations from the
International Criminal Tribunal for Rwanda.’ (2000) 6(2) ILSA Journal of International & Comparative Law 375. 385
151 The Prosecutor v. Georges Anderson Nderubumwe Rutaganda (Judgement and Sentence),
ICTR-96-3-T, International Criminal Tribunal for Rwanda (ICTR), 6 December 1999, para. 56.
152 The Prosecutor v. Ignace Bagilishema (Trial Judgement), ICTR-95-1A-T, International Criminal Tribunal for
Rwanda (ICTR), 7 June 2001, para. 65.
153 UN GAOR (3rd Session, 74th Meeting), ‘Continuation of the consideration of the draft convention on genocide:
report of the Economic and Social Council’ (1948) UN Doc. A/C.6/SR.74 at 101
154 van Schaack (n 9). 2267
155 Lawrence J LeBlanc, ‘The United Nations Genocide Convention and Political Groups: Should the United States
Propose an Amendment?’ (1988) 13 The Yale Journal of International Law 268. 277
156 ibid. 274 157 ibid. 274
158 James E Waller, ‘“A Crime Without a Name”’ in Charles H Anderton and Jurgen Brauer (eds), Economic Aspects of Genocides, Other Mass Atrocities, and Their Preventions (Oxford University Press 2016)
<http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199378296.001.0001/acprof-9780199378296-chapter-2> accessed 1 June 2019. 38
membership, and therefore, they are not sufficiently “immutable” or “innate”.159 The final
argument relates to political considerations; that the inclusion of political groups would implicate certain influential states, and thus undermine acceptance of the Genocide Convention.160 After all, the USSR would not want the inclusion of either political or social groups since Stalin’s regime had already adopted policy targeting both.161 Beth Van Schaack notes that the convention could “inculpate Stalin’s politically motivated purges of the kulaks (the petty bourgeois) during the forced collectivizations of agriculture in the late 1920s and early 1930s”.162 The inclusion of political groups could, therefore, jeopardize the ratification by many influential states.
However, whilst political groups were debated extensively, there was no mention of homosexuals during the drafting stage of the Genocide Convention, despite the fact that the LGBT community is a stable, immutable, permanent and involuntary group, as will be explored in Chapter Three. Chalk writes that the restriction of the Genocide Convention disregards “[…] the thousands of homosexuals killed by the Nazis because of their sexual orientation.”163 The next section aims to explore why, despite being stable and immutable victims during the Holocaust, the LGBT community was not acknowledged during the drafting stage.
2.3 The LGBT Holocaust Experience
The above analysis demonstrates the direct importance of the Holocaust to the definition of genocide. However, post-holocaust legal scholars and historians tended to ignore the experience of homosexual victims during the Holocaust.164 Reinhart writes that “[w]hile entire libraries are
dedicated to the chronicles of the Second World War […] books on what happened to homosexuals caught up in those events would only fill a couple of inches of shelf space.”165 However, it should
159 van Schaack (n 9). 2286 160 ibid. 2268
161 M Cherif Bassiouni, ‘The Normative Framework of International Humanitarian Law: Overlaps, Gaps and
Ambiguities.’ (1998) 8(2) Transnational Law & Contemporary Problems. 8
162 van Schaack (n 9). 2268
163 Frank Chalk "Redefining Genocide," in George Andreopoulos, Genocide : Conceptual and Historical Dimensions (University of Pennsylvania Press 1997). 47-63. 50. See Verdirame (n 126). 581
164 Feindel (n 9). 199
165 Robert C Reinhart, Walk the Night: A Novel of Gays in the Holocaust (1st ed, Alyson Publications 1994). ii See
Kai Hammermeister, ‘Inventing History: Toward a Gay Holocaust Literature’ (1997) 70 The German Quarterly 18. 19
be noted that the Nazi persecution of homosexuals was a present and horrifying reality of the Holocaust.
The Nazis, particularly Heinrich Himmler, held a distinct hatred for the homosexual men and moved immediately against them.166 The Nazi party perceived homosexuality to be an integral part of the degeneracy they were attempting to stamp out.167 The Nazi party extended the reach of the infamous paragraph 175; In the German Penal Code of 1871, Paragraph 175 states that “A male who indulges in criminally indecent activities with another male… will be punished with jail.”168 This criminalized “virtually any physical contact between men”,169 and according to a 1944 legal commentary, it was “not necessary that a physical contact has taken place.”170 This drastically increased the number of men arrested under this offence, from 1801 in 1933-1934, to 7426 in the two years after the broadening of this offence.171 The previous standard punishment of six months imprisonment by 1940 was replaced by automatic transfer to a concentration camp.172 In 1941 Himmler decided that these men were to be put to death.173 According to the research of Lautmann, of the men arrested under this provision, an estimated 5000-15,000 were sent to concentration camps.174 However, the exact number of homosexual victims cannot accurately be accounted for, as the Gestapo often would not preserve records past 1939, due to the increased workload from Himmler, and therefore, the above numbers serve as a minimal estimate.175 Porter concludes that these acts as an “attempt to exterminate homosexuals.”176
166 Robert Franklin, ‘Warm Brothers in the Boomtowns of Hell: The Persecution of Homosexuals in Nazi Germany’
(2011) 9 Honou. 53
167 Feindel (n 9). 202
168 Jake Newsome, ‘Homosexuals after the Holocaust: Sexual Citizenship and the Politics of Memory in Germany
and the United States, 1945 - 2008’ (State University of New York at Buffalo 2016) <https://search-proquest-com.ezproxy.is.ed.ac.uk/docview/1798468695?accountid=10673>. 33
169 Neil Miller, Out of the Past: Gay and Lesbian History from 1869 to the Present (1st Vintage Books ed, Vintage
Books 1995). 220
170 Geoffrey J Giles, ‘Legislating Homophobia in the Third Reich: The Radicalization of Prosecution Against
Homosexuality by the Legal Profession’ (2005) 23 German History 339. 351 Newsome (n 168). 44
171 Feindel (n 9). 203 172 ibid. 203
173 Franklin (n 166). 57
174 Rüdiger Lautmann, ‘Categorization in Concentration Camps as a Collective Fate: A Comparison of
Homosexuals, Jehovah’s Witnesses and Political Prisoners’ (1990) 19 Journal of Homosexuality. 146
175 Franklin (n 166). 57
176 Waites (n 17). 50 See Jack Nusan Porter (ed), Genocide and Human Rights: A Global Anthology (University
Homosexuals were the bottom of the hierarchy in concentration camps.177 Homosexuals were
segregated from each other to prevent them from forming groups.178 Whilst all inmates were forced
to wear a symbol to identify their crimes, the size of the pink triangle for homosexuals was doubled to make them uniquely identifiable, as well as a large “175” scored on the back of their jackets.179 Homosexuals suffered persecution from both guards and other prisoners.180 Heger, a homosexual victim in his autobiography, wrote that “[w]e were to remain isolated as the damnedest of the damned, the camp’s ‘shitty queers.’”181 In Sachsenhausen, homosexuals were chased by dogs and forced to run up to twenty-four miles per day.182 Homosexuals were prioritized to work in “the murder compound”, Klinkerwerk, a brick factory with a notorious fatality rate, which saw the deaths of eighty-nine homosexual men over six weeks.183 Heger notes that this factory was “famed and feared […] as a factory of human destruction.”184 Heger further observed that that “[w]e who wore the pink triangle were prioritized for medical experiments, and these generally ended in death.”185 One victim recounted that “[t]he prisoners with the pink triangle did not live very long; they were quickly and systematically exterminated by the SS.”186 Homosexuals suffered the highest mortality rates in the concentration camps, with Lautmann estimating that as high as sixty percent of homosexual victims perished within the concentration camps.187 Seventy-five percent of homosexual fatalities occurred within the first year of arrival.188 Fernbach notes that “[t]he general fate of homosexual prisoners was to be worked to death, or to die of brutality in the process.”, and that “[a]nnihilation through labour was the official policy.”189
177 W Röll, ‘Homosexual Inmates in the Buchenwald Concentration Camp’ (1996) 31(4) Journal of Homosexuality.
12
178 Franklin (n 166). 53
179 ‘Persecution of Homosexuals’ (United States Holocaust Memorial Museum)
<https://www.ushmm.org/learn/students/learning-materials-and-resources/homosexuals-victims-of-the-nazi-era/persecution-of-homosexuals> accessed 3 June 2019.
180 ibid.
181 Heinz Heger, The Men with the Pink Triangle: The True, Life-And-Death Story of Homosexuals in the Nazi Death Camps (ReadHowYouWant 2010). 34.
182 Newsome (n 168). 56 183 ibid. 61
184 Heger (n 181). 38
185 ibid. 35 See also Feindel (n 9). 205
186 Michael Burleigh and Wolfgang Wippermann, The Racial State: Germany, 1933-1945 (Cambridge University
Press 1991). 197
187 Lautmann (n 174). 86 188 Giles (n 170). 352.
Following the Holocaust, the experience of homosexuals during the Holocaust was largely ignored by most countries. After the end of the reign of the Nazi Party, homosexuality remained illegal in both East and West Germany, as well with the allied powers of the United Kingdom, United States and Soviet Union.190 Werres remarks that “[a]ll of the Allies had anti-homosexual laws in their own countries, so they had no inkling to change anything here.”191 Schoeps wrote in 1963 that “[f]or homosexuals, the Third Reich hasn’t ended yet.”192 Paragraph 175 was one of the extremely few Nazi laws to remain in force after the end of the Third Reich, with jurists and lawmakers choosing not even to revert the offence to its original wording.193 In fact, the new West German government doubled the potential sentence under paragraph 175.194 Homosexual prisoners were made to finish their sentences after the war.195 Many homosexual victims were later imprisoned based on the evidence composed during the Third Reich.196 Reparations and state pensions were unavailable to homosexual victims.197 The Nuremberg tribunal failed to charge a single individual for their crimes against homosexuals.198 One victim remarked that “Liberation was only for others.”199 The continued enforcement of Paragraph 175 meant that to voice their experiences publicly would be admitting to a crime.200 There were almost no accounts of homosexual experiences until the late 1970s.201 It would not be until 2002 for Germany to formally pardon convicted homosexuals, over fifty years after the end of the Holocaust.202
This is key to our understanding of the exclusion of the LGBT community from the Genocide Convention. The Genocide Convention was the first legal and substantial response to the
190 Erwin J Haeberle, ‘Swastika, Pink Triangle and Yellow Star—the Destruction of Sexology and the Persecution
of Homosexuals in Nazi Germany’ (1981) 17 The Journal of Sex Research 270. 279
191 Werres, quoted in Newsome (n 168). 74. For original quote see SARCH archives, Ordner 86: Werres, I
192 Quotation translated to English in Robert Moeller, ‘Private Acts, Public Anxieties, and the Fight to Decriminalize
Male Homosexuality in West Germany’ (2010) 36 Feminist Studies 27.
193 Newsome (n 168). 66 194 Feindel (n 9). 206 195 Haeberle (n 190). 279 196 Newsome (n 168). 13
197 Burleigh and Wippermann (n 186). 183 198 Feindel (n 9). 198
199 Pierre Seel, I, Pierre Seel, Deported Homosexual: A Memoir of Nazi Terror. (Basic Books 2011). 88. See
Newsome (n 168). 75
200 Elizabeth Heineman, ‘Sexuality and Nazism: The Doubly Unspeakable?’ (2002) 11(1/2) Journal of the History
of Sexuality. 34
201 ibid. 34
