Because most of these cases of violence are not reported, criminal justice systems have so far not really taken the matter as seriously as they should, and perpetrators are not prosecuted and condemned for these acts. This feeds a sense of impunity, itself creating a climate in which sexual torture of men can become more widespread. Of course, impunity does not just apply to sexual violence, but unfortunately to most acts committed by armed forces and armed groups during recent wars. And it is particularly significant in ongoing conflicts, such as in Eastern Congo. In that sense, impunity with regard to cases of conflict-related sexual violence against men is not an exception, but it is further enhanced by a set of factors. Beyond all the causes that we have already mentioned, impunity can be the result of a lack of political will, of inaction or even of corruption of the relevant State or international institutions (Van Katwyk 2010). Impunity can also derive from a cultural reluctance to prosecute sexual and gender-based violence, or from the absence of a specific legislation prohibiting sexual violence against men. Population displacement, often following phases of open violence, also complicates the access of survivors to justice, and to any compensation system.
In addition, impunity with regard to acts committed during conflicts is favored by the difficulties associated with the collection of physical evidence to support the testimony, especially if the trial occurs years later, in the post-conflict stage. These difficulties are particularly salient in cases of sexual violence against both men and women, because sexual violence does not always leave visible physical scars and traces. However, the case of Bosnia-Herzegovina shows that in spite of all these obstacles, impunity is not an inevitability. Not only did political will at the national and international levels exist, but several Bosnian courts have also “affirmed that corroboration of a victim’s evidence concerning sexual violence [was] not required” (OSCE 2015, 21), thus facilitating prosecution. All in all, courts and tribunals in Bosnia-Herzegovina have prosecuted numerous cases involving wartime sexual violence crimes, equivalent to approximately 20% of all wartime cases that were prosecuted. However, even in Bosnia-Herzegovina the victims’ access to compensation remains complicated. The Bosnian “Law on Civilian Victims of War” was introduced in 2006 to offer monetary compensation for male and female survivors of conflict-related sexual violence, but to date very few individuals have been recognized as “legally approved” survivors, and have, therefore, been able to receive compensation. Applicants to the “legally approved” survivor’s status have to show their medical documentation from the time the assault was committed, or to have at least two witnesses ready to give testimony in front of the tribunal. Either condition is extremely difficult to meet, years after the end of the conflict, and considering the circumstances in which most sexual violence acts were committed. Another option for survivors is to seek compensation through civil cases, but these are often expensive and cumbersome procedures.[3] Cases will likely take years to be resolved, thus further delaying closure for survivors.
But even as a perfectible example of how conflict-related sexual violence against both men and women can be prosecuted, Bosnia-Herzegovina stands as an exception. In most other cases, impunity with regard to wartime violence is the norm, especially when sexual violence has been perpetrated by senior military officers. In the case of the DRC, for instance, very few soldiers or combatants have been convicted for acts of sexual violence (all committed against women and girls) by national courts, and all of them were lower-ranking soldiers. This is what explains a report compiled by Human Rights Watch in 2009:
No senior military figure has been prosecuted for sexual crimes; the criminal responsibility of senior officials, including their command responsibility, is rarely the subject of investigations by military prosecutors. The most senior officer convicted of crimes of sexual violence in the Kivus has been a captain—no major, lieutenant colonel, colonel, or general has been prosecuted. Military commanders continue to be powerful figures who are treated as untouchable by political and military leaders; brigade commanders in particular are often given free reign. (Human Rights Watch 2009, 6)
When needed, many military commanders also protect their soldiers, including by obstructing the course of justice, which renders the prosecution of wartime sexual violence almost impossible even when it is committed by lower-ranking soldiers. The situation is similar in Burundi, where up to now very few cases of sexual violence against women have been prosecuted, let alone against men.
What makes the situation particularly complex to handle is that both the Burundian and the Congolese armies, like many other armies around the world, have integrated combatants with serious human rights abuse records, notably via DDR processes. This has contributed to a climate of impunity whereby State security forces are almost never held accountable, to the dismay of many survivors:
[Speaking about soldiers and members of armed groups]
They could do whatever they wanted to us, and what could we do? We could not go and complain to them afterwards, they would have laughed at us, or worse. So where were we supposed to go and complain? And now they are parading around, on their armed vehicles, and saying that they are keeping the peace. (Jacques 2013, interview)
Special laws or state of emergency situations, which allow security forces to override citizens’ and prisoners’ basic human rights, further complicate the prosecution of cases of sexual torture. In some countries, like in Sri Lanka, for instance, this has undoubtedly hampered investigations for past and more recent cases of sexual violence exerted by State institutions (Sooka 2014, 66).
In cases where conflict-related sexual violence is committed by non-State actors, prosecution is impeded by other factors, such as the weakening or even disappearance of traditional authorities like the Bashingantahe in Burundi, for instance, which used to settle local conflicts, and whose authority has been challenged during the conflict (Naniwe-Kaburahe 2008). Such a process also feeds impunity in Eastern Congo, as explained by Eriksson Baaz: “After the outbreak of the war, these traditional systems have disintegrated and been replaced by total impunity at all levels, surely also contributing to the normalization of sexual violence in the communities” (2009, 503). In parallel, criminal justice systems at the national level do not take the matter seriously, either because they want to concentrate on what they see as more pressing issues, or because, as we will explore in the next section, sexual violence against men is not considered as a crime. It is also worth underscoring the fact that conflict-affected countries are often trapped in a vicious cycle, whereby the maintenance of high levels of violence weakens judicial systems, which in turn feeds impunity and violence. This adds to the survivors’ despair, disillusionment and loneliness:
3
And there are also concerns, regarding these civil cases, over who will pay in case perpetrators cannot or do not want to pay.