Sexual Violence Directed Against Men and Boys in Armed Conflict or Mass Atrocity: Addressing a Gendered Harm in International Criminal Tribunals.

• Author: Oosterveld, Valerie

1. Introduction II. Recognition by International Criminal Tribunals of Male-Targeted Sexual Violence III. International Criminal Law and the Factual Gap on Sexual Violence Directed Against Men and Boys IV. International Criminal law and the Social Gap on Sexual Violence Directed Against Men and Boys V. International Criminal law and Legal Gaps on Sexual Violence Directed Against Men and Boys VI. Conclusion I. Introduction

   Men and boys are targeted for sexual violence during armed conflict or other forms of mass atrocity, but this fact has received relatively little attention within the international community. (1) The recent conflicts taking place in Syria and Libya provide stark illustrations of sexual violence directed against males. For example, the February 2013 report of the United Nations (UN)-appointed Independent International Commission of Inquiry on Syria examined numerous reports of sexual violence taking place during during the Syrian conflict in two distinct contexts: against women by government forces and affiliated militia during house searches and at checkpoints; and against men, boys, women and girls in detention centres as a means to extract information, humiliate and punish. (3) Men and boys in detention have been raped, and had their genitals electrocuted with live wires or burned by cigarettes, lighters or melted plastic. (4) As well, government forces used sexual violence as a method of coercion, by detaining and raping (or threatening to rape) male and female family members to force male relatives fighting with opposition armed groups to surrender themselves. (5) The UN-appointed International Commission of Inquiry on Libya highlighted similar stories. (6) Male and female victims were subjected to sexual violence by Qadhafi forces in detention centres to extract information about the opposition, humiliate and punish. (7) As in Syria, the forms of male sexual violence included anal rape, rape with an instrument, electrocution of genitals and burning of genitals. (8) These examples highlight the need for more focus within international criminal law on male-targeted sexual violence. (9)

   This article explores the current state of understanding within international criminal law of sexual violence directed at men and boys, particularly as a crime against humanity or a war crime. It begins by examining how international criminal tribunals have approached maletargeted sexual violence to date, concluding that the tribunals have been uneven in their approach; even so, these cases have been helpful in creating the beginnings of a typology of male sexual violence. The article then turns to identifying three main gaps that must be addressed in order to improve the ability of international criminal tribunals--and, similarly, domestic courts prosecuting international crimes--to address this form of sexual violence. (10) The first gap is an information gap: there is a dearth of systematic data on sexual violence directed against men and boys in armed conflict or atrocity. The result is that relatively little is known about the prevalence, patterns and effects of male sexual violence, and less attention is paid to the issue than should be the case, including in the field of international criminal law. The second gap can be referred to as a social gap. Men and boys may not feel able to speak about their experiences or, if they do, they may not describe themselves as victims of sexual violence. In addition, international investigators, prosecutors, counsel (whether for victims or defence) and judges may have difficulty in recognizing sexual violence directed against men, whether due to certain, perhaps unconscious, assumptions that only women and girls are the victims of sexual violence; lack of training (of themselves or of the individuals they speak to or who serve as witnesses); or assumptions that certain violence, like forced circumcision, castration, penile amputation or sexual mutilation, is best categorized more generically as torture, inhumane acts or cruel treatment. The third gap is a legal gap, which is twofold: a gap in overt recognition and a gap in classification. While rape has been defined in international criminal law in a gender-neutral way, (11) there are other acts of sexual violence visited upon men and boys that are not explicitly named. This lack of overt recognition can be problematic because these acts must be prosecuted under other (broader, less descriptive) headings. When combined with the social gap, the result can be miscategorization. Sexual violence crimes directed at men and boys have been legally (re)classified as torture, cruel treatment or inhumane acts, thereby obscuring the sexual aspects of the harm done to the victims.

   A solid understanding of sexual violence directed against men and boys is crucial for international criminal law. Under the principle of legality, (12) it is important to clarify the contours of this type of sexual violence so that it can be clearly labeled as a crime. (13) As well, a deeper understanding of this form of sexual violence will help international criminal law's understanding of all forms of sexual violence, including sexual violence directed against women and girls. Sexual violence directed at men and boys is often intertwined with sexual violence committed against women and girls and is intimately linked to socially-constructed gender norms. In the context of international criminal law, increased attention to sexual violence targeted at men and boys will lead to more accurate explanations by prosecutors of the depth of victimization of individuals and communities. Therefore, this article ends by discussing what needs to be done in order to translate what is known about sexual violence targeted against men and boys into successful international prosecutions.

2. Recognition by International Criminal Tribunals of Male-Targeted Sexual Violence

   Sexual violence directed against men and boys in armed conflict and other forms of mass atrocity has rarely been prosecuted in international courts and tribunals, but there is some case law providing a helpful basis for future prosecutions. Much of this case law stems from the International Criminal Tribunal for the Former Yugoslavia (ICTY), namely from cases dealing with events at detention facilities. (14) The ICTY recorded in evidence various types of male sexual violence such as anal rape with objects, (15) forced fellatio between detainees (including in front of other detainees, (16) forced fellatio of a detainee on an accused, (17) beatings on genitals, (18) and placing a lit fuse around the genitals of a detainee. (19) The International Criminal Tribunal for Rwanda (ICTR), the International Criminal Court (ICC) and the Special Court for Sierra Leone also contributed some--albeit less than the ICTY supportive jurisprudence. The usefulness of the legal discussion varies, however, because these tribunals have been very inconsistent in their consideration of male sexual violence. (20) This lack of consistency suggests there has been, or there is currently, no overarching or coherent prosecutorial policy, or consistent judicial analysis, on how to approach this form of sexual violence.

   The first inconsistency occurs in the charging--or failure to charge--rape and other forms of sexual violence against men and boys as such. Rape is the only form of sexual violence explicitly listed in each of the Statutes of the ICTY, ICTR, ICC and Special Court for Sierra Leone. (21) It is defined by these tribunals in a gender-neutral manner, and therefore captures male and female rape. (22) The ICC has charged rape of men. In the Bemba case, involving acts committed in the Central African Republic, the confirmation of charges decision describes a man raped in succession by three soldiers in his house in the presence of his three wives and children. His two daughters were also raped in his presence. (24) These incidents were charged as rape. (25) Rape of men was also prosecuted as such at the ICTY. (26) In CeSie, the accused was convicted of rape for forcing two Muslim brothers to perform fellatio in front of the other prisoners. (27) Conversely, in Mudo the ICTY prosecutor charged forced fellatio between two detained brothers as the grave breach of inhuman treatment and cruel treatment as a violation of the laws and customs of war. (28) The Trial Chamber responded that this "act could constitute rape for which liability could have been found if pleaded in the appropriate manner". (29) Similarly, in the ICTY's Simio case, anal rape of a male victim with a police truncheon, and forced oral sex between two male prisoners (as well as between a male prisoner and a perpetrator) was not considered specifically as rape, but more generally as "sexual assaults" amounting to torture and persecution. (30) As well, in Krajisnik, the ICTY Trial Chamber found that Muslim and Croat male detainees were repeatedly "forced to engage in degrading sexual acts with each other in the presence of other detainees". (31) This was classified as inhumane treatment under the crime against humanity of persecution. (32) The better approach is to charge rape as rape, in addition to other forms of harm (if the rape also fulfills the elements of crime for those other forms). When rape is categorized solely under non-rape categories, the sexual nature of the harm is obscured and therefore potentially lost when determining liability. As Erikkson convincingly notes, it is important to understand rape as a sexual manifestation of aggression because this leads to greater acknowledgement of the modes used to subjugate an enemy group in armed conflict or other forms of atrocity. (33)

   Prosecutors within international criminal courts and tribunals sometimes fail to charge male sexual violence (other than rape) at all. For example, in Brdanin, the ICTY Trial Chamber considered evidence of an elderly man being forced under threat to rape a...