By Lara Gaffney | 12 August 2024
In
order to understand why this gender bias has emerged as the dominant position
in relation to sexual violence in armed conflict, it is important to first
understand the traditional view that women are the only victims of sexual
violence as perpetrated in such situations. According to the 1999 United
Nations Report on the Protection of Civilians in Armed Conflict, “the breakdown
of the social fabric and the disintegration of families during times of armed
conflict often leave women and girls especially vulnerable to gender-based
violence and sexual exploitation.”[2] On the flipside, “war
provides men with the perfect psychologic backdrop to give vent to their
contempt for women.”[3] This setting, which
emphasises the “very maleness of the military”[4] through not only the spiritual
bonding of men at arms, but also via the power of the weapons at their disposal,
serves to deepen the already existing sexual and gendered divisions between men
and women, thus “emphasising the male as the perpetrator of violence”[5] and, subsequently, women
as the inevitable victims. These complimentary ideas highlight the traditional
view that sexual violence, as perpetrated by a military man toward his female
victim, is an inherent component of the general violence of war. Whilst this traditional
view is correct in its assumption that male-on-female sexual violence does
indeed exist, what it fails to illustrate is the prevalence of other types of
sexual violence occurring in armed conflict, including violence that identifies
men not only as the perpetrators but also as the victims.
The
conflict in the former Yugoslavia illustrates the extent to which such sexual
violence can occur in situations of war. However, what is particularly
important about this conflict is the fact that men, as well as women, have been
recognised as victims of the sexual violence. Whilst the systematic and widespread
nature of sexual violence in the former Yugoslavia has been closely connected
to the “strategic use of sexual violence as a weapon of war,”[6] as well as an “integral
part of the ethnic cleansing methodology,”[7] the ways in which it was
perpetrated against women and men differed significantly. The sexual violence
perpetrated towards the female victims primarily involved the imprisonment of
Bosnian women who were then raped, forcibly impregnated, and only released after
the period of safe abortion had passed. Not only did the widespread nature of this
violence spread terror and force women to flee from their towns and villages, but
“in a society in which the lineage of a child follows the biological father,
such acts of sexual violence were clearly intended to force women to bear
children that genetically belonged to their enemies.”[8] On the other hand, the
sexual violence perpetrated towards men, which included instances of sexual
assault, castration, genital torture and forced sexual acts, were performed with
the intention to “humiliate, shame and terrify”[9] both the victim
individually, as well as the community as a whole. However, despite the
prevalence of sexual violence that saw men as the targeted victims, the
subsequent International Criminal Tribunal for the former Yugoslavia (ICTY)
failed to “take all opportunities to characterise sexual violence against males
as rape in appropriate cases and, sometimes, to reference the sexual component
of the harm inflicted upon male victims at all.”[10] It has been suggested
that “gendered assumptions that only women are raped or subjected to sexual
violence in conflict may account for these outcomes.”[11]
Such
gendered assumptions stem, at least in part, from the different nature of
sexual violence as experienced my men and women in armed conflict. As indicated
by the conflict in the former Yugoslavia, as well as reiterated by many others,
sexual violence against women predominantly constitutes rape, forced
impregnation, sexual slavery, and sexual mutilation. On the other hand, sexual
violence experienced by men includes forced fellatio, sterilisation, enforced
nudity, castration, and violence to the genitals, including genital beatings.[12] In addition to this,
connected forms of sexual violence that disproportionately affect men include
instances where they are forced, often at gunpoint, to either witness the
sexual violation of members of their families or communities, or are made to
commit the sexual violence against them themselves.[13] As a result of the
differing nature of sexual violence experienced by female and male victims, as
well as the fact that many conceptualisations of conflict-related sexual
violence place a significant emphasis on penetrative rape,[14] a fallacy has emerged
suggesting that sexual violence in armed conflict consists predominantly of
rape, and is therefore only applicable to women. In doing this, all other forms
of sexual violence are ignored, thus resulting in the classification and
codification of sexual violence against men as torture and other “non-sex
crimes,”[15]
rather than acknowledging the true nature of the violations. This sort of
characterisation reinforces the idea that men are “unsusceptible to sexual
violence;”[16]
a perception that is replicated in international law.
The
codification of the illegality of rape in armed conflict can be traced as far
back as the 1863 Lieber Code, which, under Article 44, forbade all rape.[17] Such ideas were
reiterated in the 1899 Hague Convention (II) on the Laws and Customs of War on
Land, and later applied in the subsequent trials of the Nuremburg and Tokyo
Tribunals in the aftermath of the Second World War.[18] However, it wasn’t until 1949
and the Fourth Geneva Convention that an explicit and widely accepted prohibition
on rape was articulated, highlighting in Article 27 that “women shall be
especially protected against any attack on their honour, in particular against
rape, enforced prostitution, or any form of indecent assault.”[19] This explicit protection
of women is reiterated in the subsequent Additional Protocol I in 1977, as well
as the 1992 aide-memoire of the International Committee of the Red Cross.[20] In this sense,
international law explicitly protects women from rape and other forms of sexual
violence in armed conflict, as well as makes such crimes prosecutable under
international criminal law. However, the blatant omission of men – or even
people more inclusively – prevents the reality of male victims of sexual
violence to be legally recognised, thus once again reinforcing the perception
that sexual violence perpetrated towards men either does not, or cannot, exist.
Despite
this perception that men are unsusceptible to sexual violence, more recent developments
in international law have indicated a shift towards the inclusion of men in the
pool of possible victims of sexual violence as perpetrated in armed conflict.
International legal jurisprudence, for example, has played an instrumental role
in broadening the legal definition of rape to encapsulate victims of all
genders. From a combination of definitions articulated in proceedings at the
International Criminal Tribunal for Rwanda (ICTR), the ICTY, and the Special
Court for Sierra Leone, the International Criminal Court (ICC) has developed an
internationally applicable definition of rape under Article 8 of the Rome
Statute. This definition describes rape as including the invasion of the “body
of a person by conduct resulting in penetration, however slight, of any part of
the body of the victim or of the perpetrator with a sexual organ, or of the
anal or genital opening of the victim with any object or any other part of the
body,”[21] and requires it to have
been “committed by force, or threat of force or coercion, such as that caused by
fear of violence, duress, detention, psychological oppression, or abuse of
power, against such a person or another person, or by taking advantage of a
coercive environment, or the invasion was committed against a person incapable
of giving genuine consent.”[22] However, despite this advancement
in the articulation of a gender-neural definition of rape, other sources of
international law have continued to reaffirm many of the traditional gender-based
opinions in regards to sexual violence.
Resolution
2106 of the United Nations Security Council, for example, suggests that “sexual
violence in armed conflict and post-conflict situations disproportionately
affects women and girls.”[23] Whilst this document does
mention that men and boys can be affected by sexual violence, it does so only
as far as to recognise them as being “secondarily traumatised as forced
witnesses of sexual violence against family members.”[24] This recognition of men only
as secondary victims of sexual violence, whilst undoubtedly a step forward, still
reinforces the many barriers that prevent men from being acknowledged as
primary victims of sexual violence. In this regard, it is possible to suggest
that whilst international law has indeed progressed to a point in which men can
be recognised as victims of rape, other forms of sexual violence remain solely applicable
to women, thus reiterating the fallacy that men can only be the victims of
non-sex crimes or crimes that are considered to fit under the general umbrella
of torture.[25]
By
limiting the recognition of sexual violence in armed conflict to encapsulate,
at least for the most part, women but not men, international law is affirming
gendered ideas around who and what is worth protecting in armed conflict. By
explicitly articulating the need to treat women with “all the regard due to
their sex,”[26]
as indicated by the Geneva Convention of 1929, these international laws are affirming
the inherent masculinity of war and creating an innately biased view that
“essentialises men as perpetrators only, thereby neglecting men as potential
victims and ignoring male vulnerabilities” in conflict situations.[27] In this regard, western-centric
norms that define men as either protectors or perpetrators are reproduced and, subsequently,
the ability of a male victim of such sexual violence is simply not
contemplated. As a result, an illusion is created that precludes the occurrence
of sexual violence against men to exist, not in reality of course but rather in
the scope of popular belief and international law. In this way, ideas of
security are constructed that emphasise the importance of men protecting women
from horrendous sexual violence but preclude the possibility of men needing
protection themselves. To this extent, any event that falls outside the
western-centric archetype of international security, including of course male
victims of sexual violence, is necessarily ignored.
According to the traditional western-centric stereotypes developed
throughout history, women are the only victims of sexual violence in armed
conflict. The portrayal of women as innately weak and vulnerable, susceptible
to the violence perpetrated by men and thus in need of patriarchal protection[28] has been replicated not only in popular belief but also
codified in international law, thus preventing the recognition of male victims
of sexual violence. However, as illustrated by conflicts such as that in the
former Yugoslavia, such sexual violence against men is “committed more
frequently than commonly assumed.”[29] Despite the reality of the regularity of such conduct
however, its occurrence is excluded not only from general discussion but also
international law, thus creating an illusion that sexual violence against men
either does not – or cannot – occur. By preventing recognition at the
international level, male victims of sexual violence are not only deemed
unworthy of protection by the western-centric understanding of security but are
also excluded from receiving the same level of attention as their female counterparts.
Lara Gaffney is in her final year of a combined Bachelor of Arts and Bachelor of Laws at the University of Tasmania. Her interests in law include international criminal law, as well as analysing the intersections and overlap between international law, international relations, and gender studies. These interests have strongly influenced her Honours project, which she is undertaking concurrently with the final year of her degree. Lara is also one of the 2024 editors of the University of Tasmania Law Review and was a grand finalist in the 2023 Baker McKenzie National Women’s Moot.
FOOTNOTES
[1]
Chile Eboe-Osuji. International Law and Sexual Violence in Armed Conflicts.
Boston: Martinus Nijhoff Publishers, 2012, p. 71.
[2]
United Nations. 1999. Report of the Secretary-General to the Security
Council on the Protection of Civilians in Armed Conflict. (8 September
1999). S/1999/957. [Accessed 14 October 2021]. Available from: http://www.securitycouncilreport.org/atf/cf%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/Civilians%20S1999957.pdf,
paragraph 18.
[3]
Eboe-Osuji. International
Law and Sexual Violence in Armed Conflicts, p. 6.
[4]
Ibid.
[5]
Philipp Schulz. “Conflict-Related Sexual Violence Against Men: A Global
Perspective.” In Male Survivors of Wartime Sexual Violence: Perspectives
from Northern Uganda, by Philipp Schulz, 26-47. California: University of
California Press, 2021, p. 30.
[6]
Grace Harbour. “International Concern Regarding Conflict-related Sexual
Violence in the Lead-up to the ICTY’s Establishment.” In Prosecuting
Conflict-Related Sexual Violence at the ICTY, edited by Baron Serge
Brammertz and Michelle Jarvis, 19-32. Oxford: Oxford University Press, 2016, p.
21.
[7]
Ibid, p. 22.
[8]
Eboe-Osuji. International
Law and Sexual Violence in Armed Conflicts, p. 84.
[9]
Harbour. “International
Concern Regarding Conflict-related Sexual Violence in the Lead-up to the ICTY’s
Establishment,” p. 22.
[10]
Michelle Jarvis. “The Challenge of Accountability for Conflict-related Sexual
Violence Crimes.” In Prosecuting Conflict-Related Sexual Violence at the
ICTY, edited by Baron Serge Brammertz and Michelle Jarvis, 1-18. Oxford:
Oxford University Press, 2016, p. 13.
[11]
Jarvis. “The Challenge of Accountability for Conflict-related Sexual Violence
Crimes.” p. 13.
[12]
Anjali Manivannan. “Seeking Justice for Male Victims of Sexual Violence in
Armed Conflict.” New York University Journal of International Law and
Politics, no. 2 (2013): p. 642.
[13]
Schulz. “Conflict-Related Sexual Violence Against Men: A Global Perspective.” p.
33.
[14]
Ibid.
[15]
Manivannan. “Seeking Justice for Male Victims of Sexual Violence in Armed
Conflict.” p. 643.
[16]
Schulz. “Conflict-Related Sexual Violence Against Men: A Global Perspective.”
p. 34.
[17]
Patricia Sellers. “The Prosecution of Sexual Violence in Conflict: The
Importance of Human Rights as Means of Interpretation.” Office of the High
Commissioner of Human Rights. Retrieved from https://www2.ohchr.org/english/issues/women/docs/Paper_Prosecution_of_Sexual_Violence.pdf,
p. 7.
[18]
Sellers. “The Prosecution of Sexual Violence in Conflict.” p. 7-8.
[19]
IV Geneva Convention Relative to the Protection of Civilian Persons in Time of
War. 12 August 1949. Retrieved from https://www.un.org/en/genocideprovention/documents/atrocity-crimes/Doc.33_GC-IV-EN.pdf,
Article 27.
[20]
Sellers. “The Prosecution of Sexual Violence in Conflict.” p. 9.
[21] Ibid, pp. 25-26.
[22] Ibid.
[23]
United Nations Security Council. 2013. Resolution 2106. (24 June 2013).
S/RES/2106. [Accessed 14 October 2021]. Available from: https://undocs.org/en/S/RES/2106(2013).
[24]
United Nations Security Council. Resolution 2106.
[25] Manivannan.
“Seeking Justice for Male Victims of Sexual Violence in Armed Conflict.” pp.
643-644.
[26]
Sellers. “The Prosecution of Sexual Violence in Conflict.” p. 7.
[27]
Schulz. “Conflict-Related Sexual Violence Against Men: A Global Perspective.”
p. 31.
[28]
Schulz. “Conflict-Related Sexual Violence Against Men: A Global Perspective.”
p. 31.
[29] Ibid, p. 26.