A Culture Cloud of Gendered Jurisprudence: Ignorance through Technicality

By Shawn Francine Alexandra Reo

Despite numerous accounts and reports of sexual violence to the male gender in situations of armed conflict, the issue tends to be explored to a much lesser extent due to current social attitudes and stereotypes in regard to men and masculinity. The lack of detection and under-reporting of male victims relegates the issue and as such, perpetuate the stigma that sexual violence is only capable of being perpetrated against one gender. While it is expected for international criminal courts and tribunals to avoid gender-based decision making and deliver a gender justice mandate, current jurisprudence on the matter would disagree and instead say otherwise.

Gendered Practice in Retrospect

This gendered practice predates back to the Second World War period. Preliminary assumptions have been made by drafters on who potential rape victims in situations of armed conflict may be by interpreting the perceptibility of women in comparison to the cultured silence of men. As such, the exclusion of men as subjects in provisions of rape prohibitions are highlighted in particular ‘female-centric’ provisions. Some of these provisions include the 1962 Geneva Convention and Article 27 of the Fourth Geneva Convention, both of which explicitly centres around the protection of women in armed conflict situations.

Core Conventions and Instruments

International Humanitarian Law (IHL) instruments have shown to develop over time as it allows for clauses to be non-discriminatory on its’ subjects. An example would be the Second Additional Protocol to the Geneva Convention, that targets ‘persons’ and not just women. The usage of a gender-neutral terminology amounts to so much more than having increased the recognition of the male gender as victims of sexual violence. It became a turning point for masculinity gender norms which ascribes dishonour and shame to male victims of sexual violence in armed conflict. With the overwhelming concern that gendered phrases, as well as ‘exclusory’ language, would disproportionately affect both sexes, ‘gender-neutral phrasing’ has since been a trend to follow. It has been carried out and adopted in not only core IHL conventions, but also several non-binding instruments, such as United Nations resolutions. These resolutions have as well taken the extra leap by explicitly addressing sexual violence against the male gender in armed conflict situations. The notions in IHL has heavily influenced substantial supranational jurisdictions. Provisions and case law from international courts and tribunals, such as the International Criminal Tribunal for the Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC) had adopted gender-neutral speeches in defining rape; such as by using the following vocabulary of ‘persons’ and ‘victims’. Said definition as well, whether they be technical (as to avoid enumerating body parts) or mechanical, were both phrased in a way that still allows men to be rape victims. These definitions had shown the efforts and positive progress of the international law realm in being rid of a gender-bias terminology.
IMAGE RETRIEVED FROM: https://images.unsplash.com/photo-1543564004-87cb2ebd4 f 80?ixlib=rb 1.2.1&ixid=eyJhcHBfaWQiOjEyMDd9&auto=for mat&fit=crop&w=750&q=80&fbclid=IwAR1ArJTldkSlW8V_4krGQnIpiR13fQsEsjlmNDDL1-KZQ4g2y950z2CZ-4U


The Practical Dilemma

Definitions aside, prosecuting the Accused based on sexual violence against the male gender has rarely been practised in these courts. For example, the ICTRhas never prosecuted nor recognised any male rape cases despite testimonies set forth to them. Jurisprudence in the Special Court for Sierra Leone (SCSL) offered the same response as well when allegations of sexual violence against men in the Taylor case were removed due to ‘indictment defects’. Things are not better off in the ICC Trial Chamber as just last year, evidence of sexual violence against men and boys in the Dominic Ongwen case has been rejected, having ruled the matter to be outside of the scope of the charge faced by Ongwen.
IMAGE DEPICTS DOMINIC ONGWEN. IMAGE RETRIEVED FROM: http://theconversation.com/child-victim-or-brutal-warlord-icc-weighs-the-fate-of-dominic-ongwen-70087

The evidence was instead considered to be ‘unnecessary and irrelevant for the determination of the truth’. Is the question of sexual violence against the male gender-relevant in a case where the charge is solely focused on women and girls? Who is to say that the consequences of his crimes extend to that of men and boys in as well? The willingness of the following tribunals to investigate the sexual victimisation of the male gender remains highly questionable.

The Possible Retrogression of International Courts

These rulings, as such had reflected the possibility for international courts to revert towards old habits and tendencies in leaving sexual violence to male gender in situations of armed conflict at the periphery of its discourse. This would not only regress efforts that have been made by the international community but also bolster existing cultural beliefs pertaining to perceived male superiority and social inferiority of women. Do socio-cultural beliefs deserve all the blame? Or would this not have happened, should definitions be gender-neutral from the get-go? It is quite clear that international courts and tribunals still struggle in capturing the essence of sexual violence against the male gender. As progressive as international law has become, there are still ways to go. Certain facets of sexual violence to the male gender in armed conflict have been unexplored and as such, are uncharted territory in some respects. Aspects that are explored – such as supervision and documentation of said acts continue to be hindered by prevailing stigma on the male gender.

All in All

Sexual violence does not only happen to females. Contrary to cultural beliefs, the male gender is also capable of experiencing sexual violence in conflict situations. This statement has been confirmed in numerous United Nations reports. For example, just last year, the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO) documented 8 cases for conflict-related sexual violence to the male gender. Violence against men and boys, which exists primarily in villages and detention facilities, was also reported in various locations, ranging from the Central African Republic to the Syrian Arab Republic. As such, while women are visibly and ostensibly seen as victims of sexual violence, men remain under a culture cloud of invisibility and silence regarding their status as victims. While reports of sexual violence against the male gender are buried under a plethora of information, they nevertheless still exist amongst numerous testimonies, commission reports and investigations. How should this information be more publicised you may ask? This is a question for scholars, jurists and the overall international community should think off.