International Criminal Law on Rape and Sexual Violence
Rape and sexual violence against women have been considered crimes under international law – although this was not something that happened at first.[1] The International Criminal Tribunal for the former Yugoslavia (ICTY) recognized sexual violence as a distinct crime of war, a crime against humanity, and a human rights violation constituting part of a widespread or systematic attack on a civilian population based upon ethnic, national, racial, political, or religious grounds.[2]The International Criminal Tribunal for Rwanda (ICTR) recognized that rape could constitute genocide, as it can destroy the group it is used against, in Prosecutor v. Jean-Paul Akayesu.[3]These were the first instances looking at rape and sexual violence through the international criminal lens.
In both tribunals prosecuting rape and sexual violence was restricted to instances involving women.[4]Nevertheless, both laid down considerably significant pointers in that Akayesudefined sexual violence as “any act of a sexual nature which is committed on a person under circumstances which are coercive”;[5]and the ICTR affirmed that “sexual violence is not limited to physical invasion of the human body, but may include acts which do not involve penetration or even physical contact.”[6] In Prosecutor v. Dusko Tadic,[7]the ICTY convicted the defendant of sexual violence against men among other abuses – including ordering two male detainees to perform oral sex on a third male detainee. Later, in Prosecutor v. Delalic,[8] the tribunal convicted four defendants for the acts of those in subordinate positions to them – and these acts included the placement of burning fuse cords around the genitals of male detainees and forcing two detainees to perform oral sex on each other. In Prosecutor v. Cesic,[9] the tribunal convicted a Serbian commander for many crimes of which one included the forcing of two Muslim brothers to perform oral sex on each other, sometimes in front of other prisoners.
Though there hasn’t been any prosecution specifically angling on male rape and sexual violence as individual crimes beyond the scope of torture or war crimes, many international aid workers have documented instances of male rape and sexual violence, noting that they were in effect, “open secrets”.[10] A report filed by the UN Commission of Experts that handled the investigation of sexual violence during the disintegration of Yugoslavia and the conflicts that ensured actually documented sexual violence against men,[11]with accounts of castration, sodomy and terrible forms of genital mutilation. The only instance of judicial prosecution of male rape and sexual violence was by the Special Court for Sierra Leone. The tribunal prosecuted sexual violence against men during the conflict by the Revolutionary United Front (RUF).[12] In Prosecutor v. Sesay et al,[13] the Tribunal recognised that male rape and sexual violence committed by RUF troops against men and boys in captivity as part of their reign of terror. Besides these provisions and hallmarks in jurisprudence, the Rome Statute of the International Criminal Court, 2000 criminalizes rape and other forms of sexual violence in armed conflict, defining sexual violence as a crime of war and crime against humanity.[14] The statutory language used defining sexual violence appears to be specific and gender-neutral.
Engendering legal rhetoric or keeping it gender blind?
Acknowledging the crime for what it is lets the victim room to avail the kind of medical, psychological and humanitarian assistance that will help him recover and rehabilitate his mind and body without hesitation to label his trauma. In not acknowledging the crime for what it is, a culture of silence is built around it. Rape and sexual violence remain tools of choice in conflict settings because of the absolute lack of dialogue around it.[15]
The premise of this contention is that there should be a gender blind approach to wording legislation, followed by an appropriate measure of engendered interpretation where appropriate. Looking at male rape and sexual violence through a masculine approach will remove the invisibility shrouding the issue. The invisibility is attributable not to the fact that feminism has outdone masculine narratives in securing attention for the cause of rape and sexual violence of women, but rather, that masculine approaches have been more inclined towards defining men as dominant, powerful and stoic, even. Male victims are often forced into silence under the threat of being ascribed a stigma of being weak or emasculated.
The first step is to recognise and acknowledge clearly that the crime exists. Denial does no good – for the crime continues to thrive in the hotbed of impunity that is fuelled by silence. Acknowledging the crime allows room for dialogue and verbal exchange that encourages understanding, enough to obliterate stigma, or at least work towards it. Secondly, gender mainstreaming of law and policy addressing sexual violence should be encouraged. Instead of obliterating the gender quotient altogether, making a legal instrument more logically attuned to the impact a crime may have on victims based on their gender makes more sense. By broadening the scope of gender, a wider social construct is extended to masculinity as there is no perception of what men should be or should not. [16] Expanding the scope of the term “victims” of sexual violence leads to greater understanding of sexual violence. Analysing men as separate from the sexual violence rhetoric is detrimental to male victims and their interests. Sexual violence targeting men and women are mutually reinforcing. They function from a standpoint on gender that attributes a certain privilege or empowers the dominating masculinity.
To be able to do this, it is important to understand that masculinity is a social practice and not an identity.[17]By perceiving it as an identity, there are attributes that are expected to be fulfilled in order to continue keeping that identity. Manliness must be validated by other men, in its reality as actual or potential violence, and certified by recognition of membership of the group of ‘real men.’”[18]This leads to the creation of an expectation that must be adhered to especially during conflict in an armed militia, there is a rite of passage of sorts where those in combat are expected to assert their masculinities in a manner that would suitably weaken and break the enemy. The assertion of their masculinities invariably takes shape in the form of violence, for that becomes the most symbolic representation and rendition of domination. The construction of masculinity is attributed to how much of a “warrior” a soldier is, and how much “fight” he has in him. In many ways, this masculinity is “constructed through war”.[19]The construction of masculinity is not only for the men who fight in war, but also for the women involved. By masculinising the perpetrator, troops in conflicts have sought to emasculate the enemy by feminising them. This is, of course, symbolic – as it is only about trying to assert dominance over the other by breaking the other. This equation effectively renders sexual violence and rape as a war weapon, a strategy of sorts that works to disempower the enemy and break the enemy through feminisation. The body of the target – whether male or female is a representative symbol of the collective, or the embodiment of the group at large. Through rape or sexual violence, this collective is “conquered”, or sought to be conquered.
[1] Article 27, Geneva Convention Relative to the Protection of Civilian Persons in Times of War, 1947; Article 3 of the Geneva Conventions of 1949; Article 3 of the ICTY Statute and Article 4 of the ICTR Statute; Article 1, Torture Convention; Crimes against Humanity as under Article 7 ICC, Article 5 ICTY and Article 3 ICTR
[2] Statute of the International Criminal Tribunal for the Former Yugoslavia, SC Resolution 827, annex, Art. 5(g) (May 23, 1993), 32 ILM 1203 (1993), available as amended at http://www.un.org/icty
[3] Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, para. 688 (Sept. 2, 1998)
[4] Ibid
[5] Ibid
[6] See also Prosecutor v. Alfred Musema, (2000) Judgment and Sentence, 27 Jan. 2000, ICTR-96-13-T; Prosecutor v. Zejnil Delalic, Zdravko Mucic, Masim Delic and Esad Landzo, (1998) Judgment, 16 Nov. 1998, IT-96-21-T.
[7] Prosecutor v. Dusko Tadic, Trial Chamber Judgment, May 7, 1997, at [206][8] Delalic et al., n. 22
[9] Prosecutor v. Cesic, Sentencing Judgment, IT-95-10/1-S, paras. 13-14
[10] Pauline Oosterhoff, Prisca Zwanikken, Evert Ketting, “Sexual Torture of Men in Croatia and Other Conflict Situations: An Open Secret”, 12(23) Reproductive Health Matters68-77.
[11] Final Report of the United Nations Commission of Experts, US Doc. S/1994/674 at 56, para. 235 and UN Doc. S/1994/674/Add. 2, Vol.V, Annex IX at 11, para. 20, at 40, paras. 179-180, at 41, para. 183.
[12] Ibid
[13] Ibid
[14] Rome Statute of the International Criminal Court, July 17, 1998, Art. 8.
[15] Report of the Secretary- General pursuant to Security Resolution 1820 (2208), S/2009/362, paras. 3 and 6.
[16] Gillain Mezey and Michael King, “The Effects of Sexual Assault on Men: A Survey of 22 Victims”, 22 Psychological Medicine 205, 207 (1989).
[17] R.W. Connell, Masculinities, (1995) p. 68
[18] Pierre Bourdieu, MasculineDomination (1998) p. 52
[19] Joshua Goldstein, War and Gender(2001) pp. 264-272