In the Boundaries of International law, Chinkin, Charlesworth and Chinkin explain that one feminist methodology in the study of international law is to expose the silences of the international system. Feminist scholars of international criminal law, such as Kelly D. Askin, have noted how the founding tribunals of the International Military Tribunal of Nuremberg and the International Military Tribunal for the Far East 'silenced' gender crimes in the judgments and proceedings. In Nuremberg none of the Nazi war criminals were charged with rape, sexual violence, forced abortion, despite ample documentary evidence. In Tokyo, rape was charged as a crime against honour, however, the sexual slavery of the so-called 'comfort women' was excluded from the indictment. This is now a relatively well known story within the study of international criminal justice. Concerted efforts since 1990s to ensure that victims and survivors of gender violence are not silenced by international proceedings have culminated in the enumeration of a plethora of gender crimes in the Rome Statute 1998. The Rome Statute is the first international treaty to use and define the word 'gender'. An achievement for feminist advocates and lawyers of international law.
However, as the current Gender Advisor of the ICC, the famous, Catharine A. Mackinnon, has noted, the definition in the Rome Statute excludes gay and lesbian persons. Or as other commentators have put it, the definition is heterosexist. So why does this matter?
Bent (1997) is a good reminder of why the protection of gay and lesbian persons in international criminal justice is important. It also reminds us that the persecution of many different groups during the Holocaust is prone to 'silencing'. Originally a play by Martin Sherman, and directed by Sean Mathias, the film tells the story of Max, a gay man sent to Dachau under the Nazi regime. His partner Ralph is murdered by the SS for wearing glasses. Max decided to chose a yellow star instead of a pink star, preferring to be persecuted as a Jewish man instead of a gay man. During his time at the camp he falls in love with Horst, another inmate, who wears a pink star. Members of the cast include, Clive Owen, Mick Jagger, Sir Ian McKellen, and Jude Law.
The persecution of gay men during the Holocaust is a neglected topic in legal literature and in academia more generally. According to Wikipedia Bent led to an apology from the German government and to monuments being constructed in the memory of gay men persecuted by the Nazi regime. The play depicts some of the horrors faced by gay men but also provides an allegory on themes of shame, pride, and freedom. Difficult to watch but definitely to be recommended.