If, as we will further explore below, both International Criminal Law and International Humanitarian Law have adopted a gender-neutral approach with regard to conflict-related sexual violence, it is not the case of International Human Rights Law, which is mostly based on the CEDAW (Convention on the Elimination of all Forms of Discrimination Against Women, entered into force in 1981). No International Human Rights instrument explicitly addresses sexual violence against men or male sexual abuse, and International Humans Rights Law generally uses female-specific language on sexual violence; it is, therefore, largely unsuitable to address (wartime) sexual violence against men, and to raise awareness about it. Even when they belong to the most vulnerable categories, men seem to be excluded from the protection offered by International Human Rights Law to victims of sexual violence, as explained by Stemple:
Men with characteristics that make them particularly vulnerable to violence are consistently excluded from human rights instruments. Sub groups of at-risk men, such as refugees, the internally displaced, migrant workers, disabled men, or men who are vulnerable to sexual violence because of their membership in a particular racial or ethnic group during armed conflict are excluded. Human rights instruments that do address the vulnerability of these groups to sexual violence address only the vulnerability of women. (2009, 624)
By contrast, International Criminal Law and International Humanitarian Law offer a multiplicity of options to address the issue of wartime sexual violence against men, as exemplified by the work of the ICTY, the ICTR and in the Rome statute of the International Criminal Court. Together, these institutions offer the most comprehensive and efficient framework for prosecuting these cases, and have convincingly used various existing human rights treaties and conventions, regarding, for instance, freedom from torture and degrading treatment, rights to life, personal security and physical security and so on. The ICTR and the ICTY in particular were even the first to consider that wartime rape, against both men and women, should be judged as a crime against humanity (Zawati 2007, 27). Before that, the various international war tribunals, especially those set up after World War II, had excluded rape from crimes against humanity. Further, these institutions have introduced the use of gender-neutral definitions of wartime rape, the Trial Chamber 1 of the ICTR even making clear references to male victims of sexual violence in the Akayesu case (1998): “Rape and sexual violence certainly constitute infliction of a serious bodily and mental harm on the victim and are even, according to the Chamber, one of the worst ways to inflict harm on the victim as he or she suffers both bodily and mental harm” (quoted in Obote-Odora 2005, 137). Even if the Office of the Prosecutor of the ICTR eventually did not charge anyone with rape against men, this was undoubtedly a landmark ruling.
But the ICTY had proven to be even more progressive on these matters, and can be considered as a pioneer in defining sexual violence in an inclusive manner, and in prosecuting wartime sexual violence against men (Gorris 2015, 413). In 1997, in the first decision it issued, so in the first international war crimes trial since Nuremberg and Tokyo, the ICTY found Duško Tadić, a former Bosnian Serb Democratic Party’s local board president, guilty of cruel treatment (violation of the laws and customs of war) and inhumane acts (crime against humanity) for the part he played in acts of sexual violence against men, in particular male sexual assault and mutilation (King and Greening 2007, 1056). In appeal two years later, in a judgement based on International Humanitarian Law principles and in particular on the Geneva Conventions, the Appeals Chambers confirmed the previous judgement and sentenced Tadić to twenty years’ imprisonment: “Through his presence, Duško Tadić aided and encouraged the group of men actively taking part in the assault. Of particular concern here is the cruelty and humiliation inflicted on the victim and the other detainees”. The ICTY subsequently examined other cases of wartime sexual violence against men. In Prosecutor v. Milošević, for instance, the prosecutor charged acts of forced fellatio, forced incest and gang rape of men as persecution as a crime against humanity, and in Prosecutor v. Češić, Češić was convicted of humiliating and degrading treatment as a violation of the laws or customs of war and of rape as a crime against humanity for having forced, at gunpoint, two Muslim brothers detained at Luka camp to perform fellatio on each other. It is worth underscoring here that if the ICTY and the ICTR prosecute wartime rape as a specific type of sexual violence, they also allow the prosecution other types of sexual violence against men such as castration under other categories, such as “torture”.
Other courts and tribunals, such as the Special Court for Sierra Leone, set up in 2002 by the government of Sierra Leone and the United Nations and whose aim is to prosecute crimes that occurred during the civil war in Sierra Leone, have followed suit. In Prosecutor v. Sesay, Kallon and Gbao, for instance, the Special Court for Sierra Leone charged the accused of sexual offenses against both men and women with outrages upon personal dignity as war crimes, and recognized that both men and women can be victims of rape. The Rome statute of the International Criminal Court, adopted in 1998 and entered into force in 2002, synthesizes these advances, notably in its article 7(1)(g): “The Rome Statute expanded the expressly enumerated sexual violence crimes in International Criminal Law, by adding sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and other forms of Sexual Violence of equivalent gravity to the list of war crimes and crimes against humanity. It acknowledged that sexual violence can be committed against men and women, and also included coercion as an element in the crime” (UN 2013, 17). This means that these offenses may henceforth be considered as crimes against humanity, whether they are committed against women or against men. The Rome statute of the ICC even goes a step further than the ICTR or the ICTY, as underscored in a working paper published by the Refugee Law Project: “Unlike the ICTR and ICTY, which prohibited persecution as a crime against humanity when committed on the basis of religion, politics and/or race, the Rome Statute also prohibited persecution as a crime against humanity based on gender” (2013a, 23). Conflict-related sexual violence against both men and women may thus be prosecuted, depending on the precise circumstances, as an act of genocide, a war crime or a crime against humanity. Of course some conditions have to be met for an act of sexual violence to be prosecuted by the ICC or by another UN international criminal tribunaclass="underline" “To constitute a crime under international criminal law, sexual violence must have a sufficient nexus to a genocide, to a widespread or systematic attack against a civilian population (for crimes against humanity), or to an armed conflict (for war crimes)” (Lewis 2009/2010, 16). Among other conditions, the accused must be a national of a country who has ratified the Rome statute,[6] or the crime must have taken place on the territory of one of the State parties. In addition, as “a court of last resort” (ibid.), the ICC can only prosecute cases that national or local courts are unwilling or unable to deal with.
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To date, 123 countries have ratified or accepted the Rome statute, among which are 34 African States, 19 Asia-Pacific States, 18 Eastern European States, 27 Latin America and Caribbean States and 25 Western European and other States.