However, judgements by the ICC, the ICTR, the ICTY or the Special Court for Sierra Leone demonstrate that these progressive and gender-neutral definitions of wartime sexual violence are not always applied, or not consistently, even by international criminal tribunals (Sivakumaran 2010, 272). In many cases, conflict-related sexual violence against men is mentioned but characterized as torture or inhumane treatment instead of sexual violence, which reinforces the idea that men are not concerned by the phenomenon of wartime sexual violence. Gender biases identified at the local and national levels are thus present at the level of international criminal justice too. One archetypical example of this is the case of Prosecutor v. Kenyatta, prosecuted by the ICC, which in 2012 classified crimes of forced circumcision and sexual mutilation under the category of “other inhumane acts”. As explained by the Refugee Law Project (2013a, 31–32), the decision not to charge forced circumcision as sexual violence but as an “inhumane act” is consistent with previous decisions taken by international criminal courts, in particular the ICTY, which has only once charged rape of men as crime against humanity—in the previously quoted Prosecutor v. Češić case. This classification entails a refusal to consider the sexual nature of these acts, and gives the impression that they are less important than rape or forced prostitution, or other types of sexual violence that are primarily associated with female victims. In other words, “sexual violence against men appears to be treated differently from sexual violence against women” (ibid., 32). This trend has been confirmed in another recent ICC decision concerning the trial of the Lord’s Resistance Army commander Dominic Ongwen. In February 2018, the legal representatives for victims in this trial sought leave to present additional evidence on cases of sexual violence against men and boys, which had not been included in the initial charges. In March 2018 the ICC Trial Chamber IX rejected this request, stating that this was not “appropriate and necessary for the determination of the truth”, and that instances of sexual violence against men and boys are in any case “consequences of the crimes charged and their results are, therefore, part of the harm suffered by the victims”.[7]
In other instances, acts of sexual violence against men are mentioned and characterized as sexual violence, but not condemned as such, or not condemned at all, as in the cases of Prosecutor v. Muhimana, or of Prosecutor v. Bagosora, judged by the ICTR:
A Trial Chamber of the ICTR recalled that several witnesses had seen that a certain Kabanda’s “private parts had been severed” and that his genitals had been hung on a spike. However, in its findings, the Trial Chamber simply referred to the killing of Kabanda and no more. Similarly, in Bagosora, the Trial Chamber found Bagosora guilty of other inhumane acts in respect of inter alia “the stripping of female refugees at the Saint Josephite Centre”. Yet the summary of the relevant witness’ anticipated testimony annexed to the Prosecution’s Pre-Trial Brief, and reproduced in the Trial Judgement, specifically states that [s]ome of the victims were naked, men and women. (Sivakumaran 2010: 274)
Actually, even if it has recognized that rape and sexual violence can be committed against both men and women, the ICTR has never charged anyone with committing rape or sexual assault against men, in spite of supporting empirical evidence. Similar observations have been made with regard to the Special Court of Sierra Leone, which in some cases took note of episodes of sexual violence against both men and women, but only prosecuted those concerning women (Oosterveld 2011, 71). Even some judgements handed down by the ICTY followed a similar pattern, as noted by Manivannan (2014, 663): “At the ICTY, only sixteen out of seventy-seven sexual violence indictments included charges of sexual violence involving male victims, of which seven led to convictions. An additional three cases that strongly indicated sexual violence against only male victims did not even lead to indictments for sex crimes”. It thus seems that conflict-related sexual violence against men is still, up to now, considered by international criminal tribunals as less severe than when it is committed against women.
In addition, some perpetrators seem to be excluded from the sphere of application of International Criminal Law. As explained by Zawati (2007, 35–37), countries like the United States that have not ratified the Rome statute have taken steps in order to protect their military and police personnel, particularly after the scandals of Abu Ghraib and Guantánamo Bay. The highly controversial US Military Commissions Act of 2006 (MCA), for instance, has rendered the Geneva Conventions and related treaties unenforceable in court in civil cases involving the US government or its agents. Until the adoption of the MCA, all US military and police personnel could be prosecuted for any violation of article 3 of the Geneva Conventions (notably prohibiting murder, mutilation, torture, cruel, humiliating and degrading treatment and so on). The MCA changed this rule, so that only “grave breaches” of article 3 could be prosecuted. This means that US military and police personnel who perpetrate torture, mutilation, rape, sexual assault, abuse and other inhumane treatment in war situations can no longer be punished under US law. This is particularly worrying, considering the empirical evidence pointing at the (past) use of sexual torture on prisoners by US officers, and considering the presence of US security forces in many conflict areas all around the world. According to the Center for Constitutional Rights, the MCA also exempts “certain US officials who have implemented or had command responsibility for coercive interrogation techniques from war crimes prosecutions” (2010, 5–6), which adds a further layer of unaccountability.
In the past, and in reaction to the adoption of the Rome statute of the ICC, the United States had already made an attempt to protect its troops stationed in Afghanistan, by pushing for the adoption of the UN Security Council Resolution 1487. This resolution, eventually adopted on 12 June 2003, granted a (renewable) one-year immunity from prosecution by the ICC to UN peacekeeping troops originating from countries that were not party to the ICC. However, following the Abu Ghraib scandal in 2004, the Security Council refused to renew the exemption. Described by Zawati (2007, 35–37) as “the promotion of the culture of impunity by an international organization”, this episode highlights the limits and shortcomings of recent advances in International Criminal Law.
It would, however, be inopportune to dismiss the significant progress made by international law with regard to the prosecution of wartime sexual violence against men. Even if the legal framework that has been built by the ICTY and ICC, among other institutions, is not fully enforced yet, there is good reason to assume that it will increasingly be used both at the international, and at the national levels. The Rome statute of the ICC in particular has been hailed as a source of hope for the prosecution of cases of wartime sexual violence at the international, but also at the domestic level (UN 2013, 19). The domestication of the Rome statute has, to date, been undertaken by sixty-four countries, which have enacted legislation containing either complementarity or cooperation provisions, or both, into their domestic law. Thirty-four additional countries have started adapting their legislation. As Chris Dolan explains, the Rome statute of the ICC is “leading the way in establishing international response to the scourge of sexual violence” (Dolan 2014a, 6). As such, it could be not only further strengthened, but also used as a source for a reform of national legislations. International law could serve, among other purposes, to promote gender-neutral definitions of sexual violence,[8] to redefine sexual violence to account for abuse of power and eliminate consent as a barrier to accountability (as the absence of consent is always difficult to prove) and to increase the levels of reporting of sexual violence against men, which are in many countries very low due to fear of criminal prosecution for homosexuality (Refugee Law Project 2013a, 57–63). Even the women-specific instruments used by International Human Rights Law could, with little effort, be reworked to include men as potential victims (Lewis 2009/2010, 20).
7
Trial Chamber IX, “Public Redacted Version of Decision on the Legal Representatives for Victims Requests to Present Evidence and Views and Concerns and related requests” ICC-02/04-01/15-1199-Red, 6 March 2018. The full decision can be accessed at: https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-02/04-01/15-1199-Red (checked on 30 April 2018).
8
The Rome statute includes, for instance, a very detailed list of sexual violence crimes, of which both men and women can be victim, such as enforced sterilization, which is defined as the deprivation of “biological reproductive capacity” and can thus encompass common male experiences of wartime sexual violence like castration, genital beatings and so on (see Manivannan 2014, 662).