Sun. Apr 14th, 2024

Oleksii Polukhin’s 64 days in detention began when Russian soldiers stopped him at a checkpoint. They found that he’d been gathering information about Russian military positions to share with Ukrainian forces; they also discovered he was gay. Mr. Polukhin gave a detailed account of his detention to Projector, an Odesa-based human rights organization. He also confirmed the details to me in a series of interviews.

It was May 2022, just 10 weeks after Russia launched its full-scale invasion of Ukraine. Mr. Polukhin lived in Kherson, a southern city of around 250,000 people that the Russians conquered with blinding speed in the war’s early days. Mr. Polukhin, rail-thin and then 22 years old, was on his way to take pictures of a May 9 “Victory Day” parade organized by the occupying forces, which he planned to send to a network sharing information from occupied territory. He had been keeping close track of the locations of Russian checkpoints, he said, but this new one caught him by surprise. He was forced to unlock his phone for the soldiers, where they discovered L.G.B.T.Q. Telegram channels, including one that he ran.

Mr. Polukhin recalled one of the guards calling him an anti-gay slur and forcing him to strip naked on the street. (This is a common practice by Russian forces, nominally to search for nationalist tattoos.) After he was dressed again, Mr. Polukhin said that the soldiers took the opportunity to humiliate him further, calling over a random passerby to ask what should be done with gays in his city.

“I think that all of them should be killed,” Mr. Polukhin said the man responded.

Once they’d had their fun on the street, Mr. Polukhin said the soldiers forced him into a vehicle and beat him, called him homophobic names and demanded he give up the names of other queer Khersonians. They drove him blindfolded on a roundabout route before dumping him at a detention center, which Mr. Polukhin guessed had been a Ukrainian police station. He said he was left to stew for a time in a holding cell with four other prisoners, who told him the guards had said he was gay.

A Russian soldier soon appeared with a red dress. “Wear it or we will beat you to death,” Mr. Polukhin recalled the soldier saying. He did his best to act unafraid, asking the soldier if he could also have a pair of matching high heels. Then he was taken for questioning, the first of about five times he would be interrogated during a detention that lasted just over two months.

The beatings weren’t the only form of inhumane treatment Mr. Polukhin was subjected to. Once, he said, Russian soldiers forced him to swallow pieces of a Ukrainian flag several days in a row. The Russians demanded he name other pro-Ukrainian and L.G.B.T.Q. activists; he said they had several names of L.G.B.T.Q. activists they’d already identified and wanted him to give up their locations. Mr. Polukhin said that they pressed him for the location of the offices of L.G.B.T.Q. organizations, one of which was raided two days after he was taken into custody.

Mr. Polukhin later learned he was held in a detention center at 3 Teploenerhetykiv Street, one of Kherson’s most infamous detention centers. Torture appears to have been common in facilities across the city, Ukrainian and international war crimes investigators have since documented, including waterboarding, electrocution and sexual violence that ranged from electrocution of the genitals to sexual assault.

Mr. Polukhin did not want to discuss with me many details of what he experienced. But he described the detention center as an environment where Russian guards coerced sex from detainees, such as requiring that they submit to sexual acts in exchange for the right to shower. Iryna Didenko, who oversaw sexual violence prosecutions in Ukraine’s office of the prosecutor general until late last year, told me Mr. Polukhin is one of 200 victims in a case against seven Russians currently in a Ukrainian court. That case involves alleged abuses including illegal detention, ill treatment and torture. Ms. Didenko said prosecutors are still working to bring charges in Mr. Polukhin’s case that would also include sexual violence.

I first interviewed Mr. Polukhin in January 2023, six months after he was released from detention and just two months after Ukrainian forces drove the Russian occupiers from the city. I was then a senior research fellow focused on queer people in conflict at the L.G.B.T.Q. human rights organization Outright International. Mr. Polukhin was the first queer survivor of Russian mistreatment I was able to speak to about the experience.

But it is now becoming clear that his story is just a first glimpse of Russian persecution of L.G.B.T.Q. Ukrainians. During a visit to Ukraine last fall, I also interviewed a lesbian who said she was twice detained and tortured by Russian soldiers, including almost being forced at gunpoint to have sex with another woman for her captors’ amusement. I also heard about a group of men who were pulled off a bus by a Russian soldier who found intimate pictures of two men on a cellphone and threatened to execute them before another soldier intervened.

These stories are among those documented in a new report released on Friday by Projector and Insha, an L.G.B.T.Q. organization in Kherson, with support from Outright. (I collaborated with Projector in my role at Outright.) This work is just beginning, Projector’s director, Vitalii Matvieiev, told me. There are 30 additional allegations not included in the report, including multiple reports of rape, because Projector is still working to verify them. Projector is also preparing affidavits for survivors like Mr. Polukhin to submit to the International Criminal Court, which it hopes will investigate whether Russians violated international law by targeting queer Ukrainians.

Investigators have a chance to build a case in Ukraine unlike anything ever before seen under international law: that persecuting L.G.B.T.Q. people constitutes a crime against humanity. The targeting of queer people in conflict — such as ISIS making a spectacle of executing men accused of homosexuality by throwing them off buildings — has received much attention in recent years, but no international tribunal has ever held that this kind of persecution violates international law.

Jurists have done painstaking work to make clear how existing international law gives the court the power to investigate persecution on the basis of sexuality and gender identity. It is time to use it. Regardless of whether investigations lead to prosecutions, queer Ukrainians deserve to have their stories preserved so that no one can ever deny how their community has been a casualty of President Vladimir Putin’s geopolitical ambition.

In the past decade, Mr. Putin has taught the world a master class on using homophobia as a political weapon. Now he is showing us what homophobia looks like as a weapon of war.

Mr. Putin embraced a so-called gay propaganda law passed in 2013 to help shore up his flagging popularity at home, part of a rebrand of his political persona as a champion of the Orthodox Church, and a Kremlin ally backed an anti-L.G.B.T.Q. campaign in Ukraine to try to drive the country away from closer ties with the European Union. Mr. Putin personally leaned into global controversy around the law before the 2014 Olympics in Sochi, a chance to dismiss concerns about human rights and pluralism as the ravings of Western degenerates.

The Kremlin doubled down on this strategy when it launched the full-scale invasion of Ukraine in February 2022. Russian state media spread outlandish stories about L.G.B.T.Q. people — for instance, that a queer community center in Mariupol was “practically under the direct patronage” of President Biden and the U.S. Congress. Mr. Putin himself sounded increasingly unhinged as his invasion bogged down, describing the attack on Ukraine as a holy war against the West’s “reverse religion of real Satanism” in a September 2022 speech announcing that Russia would annex Kherson and three other regions.

(The Kremlin’s spokesman, Dmitri S. Peskov, told me that Russia’s domestic anti-L.G.B.T.Q. actions are “a different story” from Mr. Putin’s rhetoric surrounding the war in Ukraine and that conflating the two would be like “trying to put separate stories into one basket.” He did not comment on the allegation that Russian soldiers have abused L.G.B.T.Q. Ukrainians. Russia’s Ministry of Defense did not respond to questions about the allegations in this essay.)

The war was an unprovoked attack on a sovereign state with its own culture and history, which the Ukrainian government has argued amounts to genocide. There is evidence that Russian forces are committing many other crimes in the process: the mass killings of civilians, as in Bucha; the forced deportation of children, for which Mr. Putin has been issued an arrest warrant by the International Criminal Court; and widespread sexual violence against both women and men. All of these allegations must be investigated and punished.

But international law must also recognize that Mr. Putin’s war against Ukraine is an explicit attack on L.G.B.T.Q. people and name that as a crime, too. While Russia is far from the first state to persecute L.G.B.T.Q. people — Nazi Germany is estimated to have sent thousands of queer people to concentration camps — it is the first superpower to deploy homophobia as a major justification for invading another country.

International law has never punished L.G.B.T.Q. persecution as a crime. In the case of World War II, for example, the Allies not only did not mention such persecution in charges against Nazi leaders but also allowed West Germany to leave in place Hitler’s law against homosexuality when they purged other Nazi provisions from West Germany’s books. L.G.B.T.Q. people have been persecuted in many modern conflicts, in Afghanistan and Iraq, for example. While there was some effort to highlight these situations — the United Nations Security Council discussed queer persecution in informal hearings on ISIS in 2015 and on Afghanistan and Colombia in 2023 — it has so far been toothless.

But things could be different in Ukraine.

The top prosecutor of the International Criminal Court, Karim Khan, issued a groundbreaking policy paper in 2022 arguing that L.G.B.T.Q. persecution should be tried as a form of what international law calls “gender persecution.” Written by Lisa Davis, a special adviser to the prosecutor, the paper states, “At their core, gender-based crimes are used by perpetrators to regulate or punish those who are perceived to transgress gender criteria that define ‘accepted’ forms of gender expression manifest in, for example, roles, behaviors, activities, or attributes.”

But Mr. Khan’s office will have to prosecute someone for L.G.B.T.Q. persecution to find out whether this argument holds up in international court. “Gender persecution” has been controversial since the treaty creating the court was negotiated in the 1990s, and only now, two decades into the court’s existence, are the first gender persecution cases in progress in The Hague. Prosecuting gender-based violence is often challenging because victims may be reluctant to come forward. That can be especially true in cases involving queer victims. Even if they have left the region and are somewhere safe to come out, there are risks of retaliation against extended family at home.

That’s what makes Ukraine so important for investigators. While many Ukrainians remain hostile to queer rights, L.G.B.T.Q. people have been highly visible in Ukraine’s war effort, leading to real progress toward the protection of L.G.B.T.Q. rights in Ukrainian law. Ukraine is the first conflict in which L.G.B.T.Q. people are likely to be victims of persecution in an environment where they could be protected if they come forward.

That doesn’t mean finding these cases will be easy. Many people refused to be interviewed by Projector, fearing the Russians’ return or retaliation against relatives in occupied territory. Victims may also be discouraged by the fact that the Ukrainian judicial system simply doesn’t seem to have the capacity to investigate the sheer volume of war crimes allegations. An association of some of Ukraine’s leading human rights organizations reviewed a sample of Ukrainian war crimes cases and found that 50 percent were never investigated.

L.G.B.T.Q. people have an added concern. “We know from our experience and from the experience of our clients,” Mr. Matvieiev said, “that sometimes when you go to a police station and you want to place a statement or tell them about a case, and it is related to your sexual orientation, what you get is discrimination or homophobia.”

Queer Ukrainians’ distrust of law enforcement may be justified, suggested Gyunduz Mamedov, the former deputy prosecutor general of Ukraine, who established the department’s war crimes and sexual violence divisions. Mr. Mamedov said he ordered investigations of L.G.B.T.Q. persecution in Crimea after Russia annexed the peninsula in 2014, but no one from the community would cooperate with them.

“We didn’t have a methodology or experience of that kind of investigation,” he said. “Frankly speaking, I think we were not psychologically ready” for that work.

Are prosecutors psychologically ready to do it now? I asked him.

“I am not certain of that,” he said.

The prosecutor who led Ukraine’s sexual violence unit at the time of my visit, Ms. Didenko, acknowledged that law enforcement must work harder to build trust. (Ms. Didenko has since been promoted to deputy director of the prosecutor’s department of international legal cooperation.) She said her office had done a lot to make it safer for victims to report, including running special training sessions for prosecutors to preserve the “human dignity” of survivors and working with nongovernmental organizations to build community trust.

To make things even more complicated, many of the reported victims of sexual violence by Russian forces in Ukraine are men, while resources to support sexual violence victims tend to target women. Men fear a different kind of stigma when reporting sexual abuse and that may be compounded for gay men, who may worry that others may think they deserved it — or, perhaps even more horrifying, that they enjoyed it. “Practically, in every case, there is a sexual abuse,” Ms. Didenko told me. “The law enforcement system was not ready to recognize all the signs of the abuse.”

Even within the queer community, people have been afraid to confide in one another, said Albina Yermakova, an Insha employee who stayed in Kherson during the occupation. “In the L.G.B.T.Q. community there was a certain paranoia,” she said. “You never know who will be taken to the basement,” she added. “You couldn’t be sure what could you handle yourself under torture — how could you be sure about your acquaintance?”

Projector is now preparing affidavits from Mr. Polukhin and other victims to submit to the International Criminal Court. Their accounts pose a challenge to international law: Is persecution on the basis of gender identity or sexuality even a crime?

Mr. Khan, the court’s third chief prosecutor, is the first to say he believes that it can be. But international law moves at a glacial pace, and its standards lag far behind many people’s expectations of it. No one has ever been convicted under international law for persecuting women on the basis of their gender, for example. That may change soon. A judgment is expected any day now in a case out of Mali concerning the alleged persecution of women while the city of Timbuktu was controlled by Al Qaeda-affiliated groups from 2012 to 2013.

But it will be a major breakthrough if Mr. Khan’s team successfully brings someone to trial for persecuting L.G.B.T.Q. people. Even seriously investigating cases of L.G.B.T.Q. persecution would be a big step forward.

Whether the court pursues these charges against Russian forces for violence against L.G.B.T.Q. Ukrainians hangs on many factors that have nothing to do with the horrors victims experienced, like broad legal strategy, the quality of evidence and how far up the chain of command accountability can be proved. Either way, prosecutors — as well as the press and the community of human rights groups — must work to seek out stories like Mr. Polukhin’s precisely because there are so many barriers that prevent victims from coming forward.

The time has come to treat L.G.B.T.Q. persecution as a crime against humanity. This won’t stop that persecution from happening, just as the World War II tribunals did not bring an end to genocide. Perpetrators believe homophobia will not only let them get away with their crimes but also rally people to their cause. Charges will be a clear signal that queer people belong in a democratic world — and that the demagogues using homophobia are the ones who should be considered pariahs.

Without condemning the motivation of this violence, you don’t get to the logic that drove these crimes in the first place. And the failure to name the injustices of the past encourages persecution in the future.

That, ultimately, is why war crimes tribunals matter at all. A century of experience shows they don’t seem to deter future atrocities, nor are they effective tools for punishing wrongs after the fact. War crimes tribunals can never make victims whole. They can’t bring back the dead, erase the scars or wipe away the memories that haunt survivors. Even when prosecutions are successful, only a handful of perpetrators are usually convicted, and such trials often take so long that the convictions feel like far too little, far too late. Perpetrators often escape justice for all kinds of technical, legal and political reasons that have nothing to do with the horrors for which they’re responsible. And no punishment can ever match the crimes.

But prosecuting and investigating crimes against humanity has a value that far exceeds the years perpetrators may serve behind bars. Law not only punishes crimes, it is also a tool for setting the world’s standards of right and wrong. In the wake of war, tribunals provide a forum for defining the values a society will uphold in peace. Investigations and trials give victims a chance to engrave their experience in the historical record so that no one can deny what happened to them. We cannot condemn crimes we do not name.

The world recognized this fact in the first modern war crimes tribunals, the ones following World War II in which persecution of a particular group — Jews — was tried. And look at the history that followed: Naming the Nazi genocide led to countless actions to ensure the world never forgets the Holocaust; institutions were built to document and preserve the stories of survivors around the world; the U.N. adopted the Genocide Convention, laying the groundwork for prosecuting similar crimes in the future; and offices were eventually created in many governments to combat religious persecution and antisemitism in particular.

World War II also showed what happens when we leave victims out. As many as 200,000 women and girls are estimated to have been forced into sexual slavery by Japan in the Pacific, for example, but this was not charged at the Tokyo war crimes trials that began in 1946, and the mass rape of women would not be treated as a serious crime under international law until the 1990s. L.G.B.T.Q. people were among the first victims under Germany’s Nazi regime; they were not publicly recognized as Nazi victims by a German leader until 1985, and West Germany convicted around 50,000 men before its law criminalizing homosexuality was abolished.

The U.N. initially recognized that international law might someday need to punish the persecution of a broader range of groups when it first proclaimed genocide a crime in 1946. “Genocide is a crime under international law which the civilized world condemns,” the General Assembly declared in a 1946 resolution, “whether the crime is committed on religious, racial, political or any other grounds.” The phrase “any other grounds,” though left out of the full treaty on genocide two years later, is a reminder that justice must always evolve.

There are significant differences between the targeting of L.G.B.T.Q. people and the genocide of a religious or ethnic group. But many campaigns against queer people we see now around the world — in countries at war and at peace — seem to have what Maria Sjödin, executive director of Outright International, has described as a “genocidal ideology aimed at eradicating L.G.B.T.Q. people from public existence.” Russia and other governments are not only imprisoning, torturing and killing queer individuals, or encouraging their citizens to do so on their own, but also attacking queer cultural and political institutions, silencing speech about queer history and rights and going after L.G.B.T.Q. people’s allies.

The stories we remember from the past are the foundation upon which peace is built. And that matters far beyond Ukraine at a time when anti-democratic forces are trying to erase queer people in many parts of the world. If the world forgets how homophobia was turned into a weapon in this war, what hope is there that queer people will be included in a democratic peace?

J. Lester Feder (@jlfeder) is a journalist and a senior fellow at the City University of New York School of Law’s Human Rights and Gender Justice Clinic. He is currently at work on a book project about queer people and Russia’s invasion of Ukraine.

Additional reporting by Illia Dyadik.

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