These men will never be judged for what they did to me and to others. I hope they will, but deep inside me I know that they won’t. Who would judge them anyway? And who would believe me, rather than them? (Bernard 2013, interview)
In countries where cases related to wartime sexual violence are prosecuted, other challenges appear, mostly relating to how sexual violence is defined, and to whether or not this definition is gender-inclusive and takes sexual violence against men into account. A UN report, for instance, lists a number of countries where cases of conflict-related sexual violence against men have been numerous and well documented, but where prosecution is or was impossible because of restrictive definitions of sexual violence. This is, for instance, the case in Colombia, where men were for the first time included as potential victims of sexual violence in the 2012 draft law on “access to justice for victims of sexual violence” (UN 2013, 18). This is not an isolated case. According to Dolan (2014a, 6) who surveyed 189 countries, in 2014 a total of 63 countries, representing almost two-thirds of the world’s population, still recognized only female victims of rape. Some countries, like the DRC, have recently adopted more inclusive laws, but so far Congolese courts have only prosecuted cases of sexual violence against women, and as shown by Kippenberg (2005), justice has scarcely been delivered in cases of conflict-related female rape anyway.
But even in cases where assault against men is not explicitly excluded from definitions of sexual violence, restricted understandings of sexual violence, for instance, limited to rape, seriously impede prosecution by excluding the most common types of wartime sexual violence against men, such as partial or total castration, or traumas to the genitals. For instance, the Criminal Code of the Socialist Federal Republic of Yugoslavia (1976), which has served as one of the basis for trials after the end of the conflict in Bosnia-Herzegovina, does not explicitly proscribe the full range of sexual violence recognized under international law. It only explicitly proscribes forced prostitution and rape (OSCE 2015, 18), and does not penalize crimes against humanity but only war crimes—thus not allowing for the prosecution of sexual violence against civilians under the heading of crimes against humanity. This means that as far as national courts in Bosnia-Herzegovina were concerned, wartime sexual violence could only be prosecuted as torture or inhuman treatment, which made a great difference for survivors since it overlooked the sexual nature of the act. Similar restrictions were at play in Peru, where in spite of a rather broad definition of sexual violence, the Truth and Reconciliation Commission only investigated cases of rape, and thus overlooked most cases of conflict-related sexual violence (Leiby 2012, 343). In Colombia, both NGOs and government databases for human rights violations have classified conflict-related sexual violence against men, especially when committed by State security forces, as “torture”, thus silencing its sexual nature (Quijano and Kelly 2012, 482).
Further, empirical evidence points to the existence of a strong gender bias with regard to how the definition of rape is applied during national and local trials. In several cases in Bosnia-Herzegovina, for instance, local courts have been using different definitional elements according to the gender of the victim, as underscored by a report compiled by the OSCE: “While the issue of consent and whether the victim could resist were considered by the courts in several cases involving female victims, these issues were not raised in the cases of Milanović or Minić et al., which involved male victims” (2015, 32). This gender bias has even led to a different labeling of cases of sexual violence when victims were men, such as in the Minić et al. case, where the Bijeljina District Court qualified forced fellatio as an “outrage upon [prisoners’] personal dignity” and as an “inhuman treatment”, when it had, in cases where victims had been female, been recognized as rape. This gendered reading and application of the definition of sexual violence strengthen existing gender stereotypes, whereby men can never be victims, thus reinforcing the equation between, on the one hand, male bodies and (sexual) invulnerability and, on the other hand, female bodies and (sexual) vulnerability.
There is also some evidence that the way sexual violence is sanctioned depends not just on the gender of the victim, but also on the gender of the judges, as King and Greening have observed in the case of the former Yugoslavia: “Once women are present in institutions and command increased authority, different benefits transfer to their gender constituency. This entrepreneurial effect may be present for men as well. Male judges sanction male sexual violence more severely than do female jurists, and perhaps both men and women identify with the victim’s gender status” (2007, 1066). If this observation is confirmed in other conflict and post-conflict settings, ensuring a greater diversity among judges in terms of gender identity should undoubtedly become a priority.
Another major challenge impeding the prosecution of cases of wartime sexual violence against men pertains to the criminalization, in a number of countries, of same-sex sexual acts, regardless of whether the behavior is consensual or not (UN 2013, 16). Such legislations make it very complicated, if not impossible, for male survivors to seek justice and reparation.[4] According to the survey of 189 countries compiled by Dolan (2014a, 6), 70 States criminalize men who report sexual abuse. Some of these countries, like Uganda, for instance, are in a post-conflict stage and/or host numerous refugees, a large proportion of which have been victim of wartime sexual violence. The Penal Code in Uganda not only excludes men from its definition of rape, but also condemns, in its Article 145 dedicated to “unnatural offences”, homosexual acts, which are made an offense punishable by a life sentence. This definition that applies to both consensual and non-consensual acts, de facto criminalizes male survivors of both wartime and peacetime sexual violence (Refugee Law Project 2013a). Needless to say, reporting and prosecuting sexual violence against men becomes impossible, as survivors risk being accused of homosexuality, and thus arrest, if they speak about what happened to them.
The case of Uganda is not isolated. In many countries, especially in Africa, where homosexuality is severely penalized legally but also socially,[5] confusing sexual violence against men with homosexuality is very common. Added to the lack of awareness and training for judges, prosecutors and police investigators, such representations and legal provisions come to “prove” that sexual violence against men does not exist, or that if it does, it is not a problem worth addressing. The fact that International Criminal Law and International Humanitarian Law, as we will see in the next section, are more progressive on this issue leads to a somewhat paradoxical situation, described by Lewis: “Due to the criminalization of male-male sexual behavior in some countries, victims of male-male sexual violence in those countries enjoy, perversely, greater legal protection in wartime than they do in peacetime” (2009/2010, 17).
Acts of sexual violence committed during war can be prosecuted via various international legal instruments. Three main frameworks can apply. First is International Criminal Law, which addresses the criminal responsibility of individuals for international crimes, like genocide, war crimes and crimes against humanity; International Criminal Law has rapidly developed since the Nuremberg and Tokyo trials, with the creation, during the 1990s, of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) by the United Nations Security Council, and more recently, the International Criminal Court (ICC) in 2002. The second framework is International Humanitarian Law, whose main objective is to regulate the conduct of war, and to limit the effects of armed conflict on those who are not or no longer participating in the conflict. It is notably based on various conventions like the Geneva and the Hague Conventions, as well as on other international treaties and protocols. The third framework is International Human Rights Law, based on the Universal Declaration of Human Rights as well as on a series of International Human Rights Treaties, and which seeks to promote human rights and human dignity all around the world. International Human Rights Law applies mostly in times of peace, but remains applicable in times of war.
4
Of course, it also creates issues for female survivors of sexual violence perpetrated by women.
5
To the point that some of my Master students at the UNESCO Chair in Peaceful Resolution of Conflicts at the Université Nationale du Burundi told me during one of my courses in 2014 that “homosexuality doesn’t exist in Burundi”.