Briefing in advance of the UN Security Council Open Debate on Sexual Violence in Conflict, 17 July 2020

On 17th July, the UN Security Council will hold its Open Debate on Sexual Violence in Conflict which will present UN Member States with an opportunity to reflect on the steps necessary to address the current widespread impunity for conflict-related sexual violence (CRSV).

Despite repeated calls and commitments by the UN and Member States, justice still eludes the vast majority of victims of CRSV and prosecution remains rare. The report of the UN Secretary-General on conflict-related sexual violence notes with concern the “slow pace of justice and the absence of reparations” for survivors of sexual violence.^[1] While impunity affects all survivors, men and boys face specific obstacles to obtain justice. In particular, national laws often fail to recognise rape and other forms of CRSV against males and/or criminalise same-sex relations.^[2]

Partnering with law firms around the world (under the auspices of TrustLaw),^[3] All Survivors Project (ASP) conducted an analysis of national legislation of twenty-one countries in situations of conflict or post-conflict and political violence, identifying best practices and shortcomings in the criminalisation of CRSV against men and boys. ^[4]

Our findings paint a worrying picture with many countries continuing to fall short of their obligations and commitments to criminalise all forms of CRSV.^[5]

In thirteen of the twenty-one countries reviewed, laws fail to proscribe rape against men and boys, or do so in ways that fall short of international standards, denying survivors legal protections and contributing to impunity for these grave violations.^[6] Lack of recognition in law can also inform broader social attitudes in which male victims/survivors are not acknowledged and the stigma surrounding sexual violence against males is exacerbated.

In addition, national legislations in ten countries fail to effectively criminalise other forms of sexual violence such as enforced sterilisation, sexual slavery, forced prostitution, genital violence and sexual mutilation, forced nudity and other acts which constitute sexual humiliation.^[7] In another seven countries, other shortcomings of national law related to the criminalisation of CRSV have been noted.^[8]

Only eight out of twenty-one countries explicitly include rape and other forms of sexual violence as war crimes and crimes against humanity.^[9]

Another significant obstacle to justice for male survivors of CRSV is the criminalisation of samesex relations, despite clear obligations under international human rights law to decriminalise it. Our research shows that twelve out of the twenty-one countries reviewed continue to criminalise consensual same-sex relations.^[10] In countries where same-sex relations are criminalised, legislation prohibits specific sexual acts such as ‘sodomy’.^[11] In other countries, prohibited acts can include ‘acts against nature’, ‘indecency’ or other vague terms which place broad discretionary powers in the hands of law enforcement agencies and prosecuting authorities allowing for illegal intimidation, harassment and arrest of people suspected of engaging in consensual same-sex relations.^[12] Most laws criminalising same-sex relations apply to all genders, but some apply only to men or only to women.^[13] Criminalisation of consensual same-sex conduct violates the right to privacy and the right to non-discrimination under the International Covenant on Civil and Political Rights.^[14]

Such laws, in addition to being discriminatory, can tacitly encourage violence and can deter survivors of sexual violence from seeking justice or medical and other support for fear of being arrested and prosecuted, as noted, for example, by the Secretary-General in the context of South Sudan, where “male survivors fear being classified as homosexuals and liable to prosecution under section 248 of the Code, which criminalises ‘carnal intercourse against the order of nature’”.^[15]

ASP and TrustLaw research also points to examples of good practice which proves that with political will and support from the international community, member states can reform their laws to offer better protection for all persons against sexual violence.

The Penal Code of Afghanistan, which entered into force on 14 February 2018, defines rape in a genderinclusive manner and recognises rape and other forms of sexual violence as a war crime and as crimes against humanity.^[16] Colombia’s Criminal Code includes crimes of sexual violence specifically in the context of armed conflict, including rape, forced nudity, forced prostitution, sexual slavery, and trafficking for the purpose of sexual exploitation.^[17] The Criminal Code in Turkey, amended in 2014, criminalises sexual assault, defining it as violations of ‘the bodily integrity of another through any sexual act’.^[18]

ASP believes that comprehensive national laws are necessary but may not be sufficient to deliver justice for all survivors of CRSV. Enactment of strong legislation needs to be accompanied by consistent and effective investigation and prosecution of crimes of sexual violence in armed conflict. In this regard, some effective prosecutions have been achieved at the international level and by hybrid courts.^[19] Further, the application of universal jurisdiction can offer an important venue for criminal accountability, as the current trial in a German court of suspected former Syrian intelligence officials charged with crimes under international law, including sexual violence, demonstrate.^[20]

However, at the national level justice continues to elude the vast majority of victims/survivors of sexual violence in armed conflict, and prosecution of cases involving men and boys remains rare. The report of the Secretary-General on conflict-related sexual violence offers a grim picture in relation to criminal accountability for CRSV with very few examples of investigation and trials by national authorities.^[21] Further, ASP’s research suggests that even in countries with adequate legislation, national criminal justice systems often lack awareness, specialised expertise, resources and political will to investigate and prosecute CRSV against men and boys.^[22]

Key Recommendations

In April 2019, UN Security Council resolution 2467 urged “Member States to protect victims who are men and boys through the strengthening of policies that offer appropriate responses to male survivors and challenge cultural assumptions about male invulnerability to such violence.”^[23] The Report of the Secretary-General on conflict-related sexual violence notes how “strengthening the capacity of national rule of law institutions is critical in order to advance credible and inclusive accountability processes for past crimes, as well as for prevention and deterrence of future crimes.”.^[24]

ASP supports this analysis and encourages the UN Security Council and all UN Member States to consider adopting measures and advocating on steps needed to ensure accountability for CRSV for all persons, including men and boys.

ASP recommends that Member States review and amend their criminal laws to ensure that:

• Rape is criminalised in a gender-inclusive manner and is defined in ways consistent with international standards and best practices;
• Crimes of sexual violence (other than rape) are proscribed in a gender-inclusive manner and include, but are not limited to, enforced sterilisation (including castration and other forms of sexual mutilation), genital violence (including blunt trauma, applying electric shocks to genitals, and forced circumcision), forced nudity, forced masturbation, other forms of sexual humiliation, sexual slavery, forced prostitution, and other forms of sexual violence of comparable gravity;
• Rape and other crimes of sexual violence are recognised as war crimes, crimes against humanity and as an element of genocide, in accordance with international law;
• Consensual same-sex relations between adults is decriminalised in law and in practice.

ASP also recommends that the UN Security Council strengthens its existing recommendations to:

• Urge Member States to improve legislation to foster accountability for sexual violence, including through ensuring that national penal legislation proscribes rape and other forms of sexual violence in a gender-inclusive manner and consistently with international standards;
• Request the Secretary-General and relevant United Nations entities including the Team of Experts on Rule of Law and Sexual Violence in Conflict to continue to support national authorities in justice reform initiatives to strengthen the investigation and prosecution of sexual violence in conflict and post-conflict situations and to ensure that national penal legislation proscribes rape and other forms of sexual violence in a gender-inclusive manner and consistently with international standards.

All Survivors Project/TrustLaw

Overall table of legislation on rape and other crimes of conflict-related sexual violence (CRSV) in selected states