A Queer Eye on the Law of Armed Conflict
Author’s note: This post reflects a presentation given at the twenty-second congress of the International Society for Military Law and the Law of War (ISMLLW) held in Palazzo Vecchio, Florence, between May 10 and 14, 2022 within a panel dedicated to gender awareness in the military.
This post addresses an issue that has only recently and to a limited extent gained the attention of academic literature: the queer dimensions of the laws of armed conflict (LOAC). Queering the LOAC means to question its traditional dichotomic foundations (combatants/civilians, peace/war, male/female, homosexual/heterosexual, etc.) and subsequently discuss how non-cisgender and non-heterosexual bodies are marginalized, even erased, from armed conflict contexts (for a definition of queer see here).
While a solid literature exists on the queer dimensions of international law (see here and here), only a few have attempted to queer the LOAC specifically. In 2018, human rights practitioner Alon Margalit offered an articulated view of the condition of lesbian, gay, bisexual and trans* (LGBT) people under LOAC and international human rights law (IHRL). Combining LOAC and IHRL provisions, Margalit argued for an enhanced protection of LGBT people in armed conflicts based on the consideration that “negative sentiments against the LGBT community [that] are deeply rooted in domestic beliefs, practices and national law [are] likely to become more hostile and violent in circumstances of armed conflict.” Furthermore, Uppsala University researcher Jim Jormanainen has empirically tested the hypothesis that the redistribution of resources generated by war economy in Ukraine and Moldova increased the opportunities for violence against LGBT people and created bubbles of impunity for the perpetrators.
Both authors conclude that war adds new layers of vulnerability to the already fragile condition of LGBT people (this is also ILGA’s and the EU Parliament’s opinion) but do not go as far as to intersecting this condition with a holistic view of LOAC under a queer lens. An attempt in this direction has been recently made by University of Western Australia law professors Philipp Kastner and Elisabeth Roy Trudel in an article of 2020 where they imagine a dialogic interaction between peace and queer theory.
To tentatively start a conversation on the subject, this post addresses three issues pertaining to the LOAC which challenge the common assumption that such law has no say about queer bodies and lives. The three issues are: the queer military ban, the prosecution of male-to-male and forced rape, and queer persecution under the law of occupation.
Erasing Queer Bodies: The Queer Military Ban
A common way to erase queer bodies is to prevent queer individuals from participating in the armed forces. LOAC does not do this directly let alone explicitly, with Article 43 of the Protocol Additional to the Geneva Conventions of August 12, 1949, indeed, being silent on matters such as recruitment, retention, and discharge. However, by surrendering these matters to States, the above provision offers a powerful normative backup to the heterosexual privilege of serving the nation, leaving State homophobia unbridled.
In fact, a queer military ban has been in force in several countries for over a hundred years, specifically targeting gay men, lesbians, and, more recently, trans*. Introduced in the late nineteenth century and first challenged in the 1980s, this exclusionary policy supported a narrative that labelled queer bodies as physically inapt, mentally instable, and socially awkward. This narrative, in turn, was functional to reinforcing the idea of the nation as a body which must be kept physically strong, mentally healthy, and socially united to ensure the best fighting capabilities. Since the very beginning, the underpinnings of this narrative, no matter how strong in the nation’s collective imagination, were arbitrary, unjustified, and totally irrational forms of discrimination.
The ban is a nineteenth-century invention. In the Classical Age, homoerotic relationships were commonly accepted within the military as they were in society. We now know, for example, that Achilles and Patroclus were lovers and that the famous Thebes’ Sacred Band, the elite squad made of 150 couples of lovers mentioned by Xenophon and Plato as one that “would be victorious even if they were but few against nearly all mankind,” was not just a myth but a pillar of the modern gay movement, inspiring classicists, poets, and advocates of the caliber of John Addington Symonds, Walt Whitman, and Karl Heinrich Ulrichs, not to mention Oscar Wilde. Throughout history, the violent repression of non-heterosexual sex inaugurated in the early Christian era showed an extraordinary resistance to change, with criminal prosecutions and convictions going up and down depending on specific cultural and geopolitical contexts. Yet, it is a matter of fact that neither the constant social, legal, and religious controls over queer bodies nor military discipline as such have ever been able to wipe homoerotic relationships out of the army entirely.
A key contribution to the construction of this modern anti-queer narrative comes from the case of Alfred Redl (1864–1913), chief of the military counterintelligence of the Austro-Hungarian Empire in the dramatic decade that preceded the First World War. Confronted by his superiors over large amounts of money he had secretly received from foreign correspondents, Redl shot himself in 1913. In searching his luxurious apartment, the police found evidence that Redl had passed sensitive information – fortification details, general mobilization plans and orders of battle – to Russia, the Empire’s archenemy at the time.
They also found, as mentioned in this article, “perfumed love letters by the dozen, compromising photographs, wardrobes full of women’s clothes, toiletries, and so on” (p. 180). A scandal immediately unfolded, with the Austro-Hungarian government blaming Redl and his circle of “perverse” lovers, allegedly blackmailed by Russian intelligence, for the Empire’s military downfall of 1914. In his book The Craft of Intelligence, published in 1963, the CIA’s first head Allen W. Dulles, himself an attaché to the US embassy in Vienna in 1916, described Redl as having been “trapped early in his intelligence career on the basis of two weaknesses – homosexuality and overwhelming venality” (p. 118).
A myth was quickly built around Redl’s sordid story which depicted homosexuals as the perfect victim of blackmail, inherently “unfit for intelligence work, and […] ipso facto security risks (cf. this article on Redl by Naval War College professor John R. Schindler , p. 502). Among the victims of this myth was NATO General Günter Kiessling, forced to resign in 1983 upon allegations of homosexuality. In 1950, the US Congress relied on Redl’s case to conclude that homosexuals are “easy prey to the blackmailer, […] susceptible to the blandishment of the foreign espionage agent, [and] security risks in positions of public trust” [Interim Rep., S. Res. 280, 81st Congress (Dec. 15, 1950), 19]. Hence the anti-queer exclusionary policy, which would remain in force for sixty years until Congress eventually repealed President Clinton’s notorious “Don’t Ask Don’t Tell” regulation in 2010 [Pub. L. 111-321 (2010)].
In connection with being presumed to be a security risk, queer people are also hypersexualized and depicted as uncontrolled sexual predators whose simple presence would jeopardize a unit’s cohesion and combat effectiveness. While this idea has seemingly collapsed with the full inclusion of queer people in the military, traces of it remain in court reports from the past. In Steffan v. Cheney [780 F. Supp. 1 (1991)], for example, the U.S. District Court for the District of Columbia qualified as “quite rational” the assumption that “with no one present who has a homosexual orientation, men and women alike can undress, sleep, bathe, and use the bathroom without fear or embarrassment that they are being viewed as sexual objects.” As Martha C. Nussbaum ironically observed in her book Sex and Social Justice (1999), the same logic would apply to saunas, sport, and health clubs, where both male and female attendees get naked all the time and nonetheless “we do not observe an epidemic of muscular failure. Straight men do not leap off the treadmill or drop their barbells in panic” (p. 198).
Today, in most countries of the world, gays, lesbians, and trans* are permitted to serve openly in the military. Each of these countries has a story to tell about how this development has eventually occurred, on occasion with the help of IHRL. In two rulings handed down in 1999, the European Court of Human Rights declared enquiring about one’s sexual orientation within the armed forces to be a violation of the applicants’ right to private life. In particular, the court concluded that “stereotypical expressions of hostility to those of homosexual orientation [and] vague expressions of unease about the presence of homosexual colleagues […] represent a predisposed bias on the part of a heterosexual majority against a homosexual minority” which are “[in]sufficient justification for the interferences with the applicants’ rights […] any more than similar negative attitudes towards those of a different race, origin or colour” (Smith and Grady v. United Kingdom, Sept. 27, 1999, Nos. nos. 33985/96 and 33986/96, para. 97 and Lustig-Prean and Beckett v. United Kingdom, Sept. 27, 1999, Nos. 31417/96 and 32377/96, para. 90). Rulings like these clearly help deconstruct anti-queer narratives.
Some countries, however, followed a different path. In India, after a 2018 Supreme Court ruling that struck down Section 377 of the Penal Code (cf. Navtej Singh Johar v. Union of India, Sept 6, 2018, AIR 2018 SC 4321), Army Chief General Bipin Rawat rushed to clarify that same-sex relationships were still a punishable offense as a “disgraceful conduct of a[n …] unnatural kind” under Sections 45 and 46 of the Army Act.
Despite IHRL and astonishing developments at the national level, queer bodies are still unsafe in many places of the world, with LOAC effectively contributing to this result.
The Marginalization of Male Rape
Another way to erase queer bodies is by marginalizing or ignoring sexual assaults that do not follow the classical binary scheme of a male aggressor and a female victim. Here a queer view may help unveil a hypocrisy, or paradox, behind the crime of rape in international criminal law, which on the one hand insists on qualifying itself as “gender neutral” but on the other hand is hardly enforced when the victim is a man (male rape) or the defendant did not directly perpetrate the rape of the victim but forced another person to do it (forced rape).
For starters, rape’s gender-neutral characterization is only a recent development in international criminal law (for an appraisal, see this article). In the rare (and late) inquiries regarding the “Rape of Nanking” during Japan’s occupation of the city, for example, none of the alleged 20,000 victims was male. Things changed recently with the Statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY) (Art. 5(g)) and the International Criminal Tribunal for Rwanda (ICTR) (Art. 3(g)]), which name “rape” as a crime with no further specification. Although it is undisputed that the UN Security Council had “rape of women” in mind when they wrote the ICTY Statute (cf. the preamble to Resolution No. 827 of May 25, 1993), both the ICTY and the ICTR clearly stated that rape could be committed against a person with no gender characterization (cf. Prosecutor v. Furundžija, Trial Judgement, IT-95-17/1T, Dec. 10, 1998, para. 186; Prosecutor v. Akayesu, Trial Judgment, ICTR-96-4-T, 2.9.1998, para. 688).
Along the same line, the Elements of Crime relating to Article 7(1)(g) of the Rome Statute of the International Criminal Court (ICC), which punishes “[r]ape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity,” expressly states that all these terms are “intended to be broad enough to be gender neutral.” One can therefore conclude that in positive international criminal law, rape is such even when the victim is a man. These are certainly welcomed developments.
And yet, in an article that appeared in 2016, Maike Isaac has convincingly argued that there seems not to be much space for male and forced rape within the definition of rape under the ICTY or the ICC Statute. She found, in particular, that whereas ten people (men) have been prosecuted for sexual violence against men and eight of them have been involved in forced rape (for forcing detainees to perform sexual acts on each other), only in two instances the tribunal had found that torture – not rape – had occurred because “certain detainees were forced to engage in sexual activities against their will” (Prosecutor v. Sikirica et al., Trial Judgment, IT-95-8-PT, Nov. 13, 2001, para. 125; see also Prosecutor v. Simić et al., Trial Judgement, IT-95-9-T, Oct. 17, 2003, paras. 728–730). Apparently, the notion of “penetration” makes sexual assault a “rape” as a matter of statutory definition only if the defendant was involved in the act. This problem, Isaac noted, affects the ICC’s Elements of Crime as well, bringing her to the conclusion that “the definition [of rape] is de facto not gender neutral.”
Properly addressing male and forced rape is a relevant part of the queer discourse within the LOAC and requires recognition that sexual violence can take multiple forms, some of which do not abide by the traditional male-female, perpetrator-victim, penetrator-penetrated dichotomies. On this line of reasoning, Cambridge professor Sandesh Sivakumaran identified the main cause of the marginalization of these forms of sexual violence in the “taint of homosexuality,” a rhetoric that transforms any touch between two persons of the same sex, especially men, into an implicit allegation of homosexual desire, although these persons have been coerced. According to Sivakumaran, the taint of homosexuality displays a powerful social influence by lowering the male victims’ status to that ordinarily assigned to women (for further references see Harvard law professor Catherine McKinnon’s amicus curiae brief filed with the US Supreme Court in 1996), putting the victims in the unresolvable double bind of reporting a crime and having to suffer perpetual social ostracism or denying that the rape ever took place and grant immunity to the perpetrators.
Queering sexual violence against men during a war would help account for realities that the LOAC and its criminal law ramifications tend to relegate at the margin of the debate. As Sivakumaran rightly noted (supra p. 1285), re-centering the discussion on the sexual violence on male and forced rape would also offer both the women’s and the queer movements new lands to explore and new arguments to fight against bias, stereotypes, and discrimination in different contexts, including in contexts of peace.
Prosecuting Queer People under Occupation Law
A third field impacting queer bodies and lives is represented by the LOAC field of Occupation Law. Article 43 of the 1907 Hague Regulations establishes a key principle of this law which entitles the occupying power to “take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country” (emphasis added: evidently, in 1907 the occupying power was male).
Article 64 of Geneva Convention IV of August 12, 1949 reinforces this conservationist principle. It imposes on the occupying power the duty to maintain the existing criminal laws unless they “constitute a threat to its security or an obstacle to the application of the present Convention” and gives it the power to enact “provisions which are essential [for it] to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration” and lines of communication.
In his declaration following Russia’s aggression against Ukraine on February 28, 2022, President Vladimir Putin has declared that one of the objectives of what he called a “military special operation” was the “demilitarization and de-Nazification of Ukraine” (as reported here, p. 6). As suggested by Marco Longobardo, in a recent article on EJIL Talk!, the notion (or rhetoric) of de-Nazification has important legal implications under the LOAC – and the future of Ukraine. According to Longobardo, Putin’s message implicitly referred to the historical precedents of Nazi Germany, Vietnam’s invasion of Cambodia, and Iraq’s de-Baathification. Therefore, the Russian President is affirming the occupying power’s entitlement to dismantle the existing laws and replace them with harsher ones beyond the constraints imposed by LOAC. In other words, he is looking for an open exception to LOAC.
If operationalized, this exception would make the lives of queer Ukrainians unbearable to say the least. It is true that from the standpoint of the recognition of LGBT people’s human rights, Ukraine appears to be very far from Western European countries like Denmark, Belgium, France, and Spain, which nowadays, inter alia, acknowledge marriage equality, offer solid protections against discrimination in the workplace, and prosecute anti-LGBT hate crimes and speech. In other words, Ukraine is no queer Shangri-La. According to the Rainbow Map 2022, a ranking compiled by the UN-accredited International Lesbian & Gay Association (ILGA), Ukraine scores 19%, a performance that is at a similar level as that of its neighbors Romania, Bulgaria, Poland, and Belarus but very distant from the most virtuous European countries. Russia’s score, in the other hand, is 8%. In fact, according to the Rainbow Index (the Map’s empirical backup), Ukraine recognizes LGBT people certain rights in the public space that Russia, in contrast, denies altogether.
Yet, despite Ukraine’s still low score according to European standards, we increasingly hear news of queer Ukrainians actively involved in war operations, including a special squad of gays, lesbians and trans* whose emblem, the unicorn, is the representation of the fact that fantastic (read: queer) creatures exist and are more and more visible in war contexts. In queer terms, the case of Ukraine connects the LOAC and the law of occupation with the destiny of queer bodies – another unexplored land ready for discovery.
This post represents a first, unstructured, and certainly incomplete attempt to queer the LOAC. It took inspiration from the Queering Accounting Manifesto, which calls for overcoming the dualities that characterize the field of accounting. Similarly, this post calls for deconstructing the traditional views, categories, and truths of the LOAC and look for unexplored corners of this field by starting with the condition of queer people. The basic consideration of the queer approach – the belief that if people do not fit the existing categories, it is the latter that needs to be reviewed, not the former – can only bring about new opportunities to understand the complexity of the world and of the LOAC itself.
Matteo Winkler is Associate Professor at the Law Department and Diversity Committee Co-Chair at HEC Paris.
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