The Ntaganda Case, Prosecutorial Discretion at the ICC, and the Recognition of Sexual Violence against Males

I. Introduction

As the International Criminal Court (“ICC”) sends Bosco Ntaganda to trial, there has been a resurgence in the focus on sexual violence in war. This also coincides with the timing of the Global Summit to End Sexual Violence in Conflict. However, the focus of this discussion has been largely on sexual violence against women, with scant attention to sexual violence that is perpetrated against men and boys. The Office of the Prosecutor and the Prosecutor, Fatou Bensouda, have issued a Policy Paper on Sexual and Gender Based Crimes (“Policy Paper”), which represents some progress on the part of international criminal law’s (“ICL”) fight to end impunity for sexual crimes against women and girls, and men and boys, as the focus of ending and punishing sexual violence has in ICL’s recent history neglected to address the issue of sexual violence against men and boys.

II. The ICC’s Perspective on Gender-based Crimes
a. Increased Focus on Sexual Violence against Men and Boys

The Policy Paper defines gender-based crimes as “those committed against persons, whether male or female, because of their sex and/or socially constructed gender roles. Gender-based crimes are not always manifested as a form of sexual violence. They may include non-sexual attacks on women and girls, and men and boys, because of their gender.” (p. 3) This is a departure from the focus of sex crimes that has developed at the International Criminal Tribunal for the former Yugoslavia (“ICTY”), as the Tadić case provided some analysis of sexual violence against men in the Omarska prison camp. However, there has not been a comprehensive prosecutorial focus on the abuse of males in the indictments submitted to the tribunals, or in the prosecutorial strategy that is available for public discernment. Hopefully, the Policy Paper will direct the ICC’s Prosecution to increased focus on sexual violence against men and boys, along with a focused and unrelenting drive to end sexual violence against all victims.

b. The “Gender [P]erspective”

What may become an important tool in directing the jurisprudential analysis of sexual violence is the “gender perspective” of the Policy Paper. (p. 3) This perspective, through its inclusion of males, is a positive step forward in the fight to end impunity for sexual violence, as sexual violence against males has traditionally been ignored and therefore unpunished. A question that is raised by the term “gender perspective” is how it will impact the definitional characteristics of sexual crimes at the ICC, and possibly elsewhere. The perspective states that it “requires an understanding of differences in status, power, roles, and needs between males and females, and the impact of gender on people’s opportunities and interactions.” (p. 3) Whether this means that the definition of rape, for example, will apply to both males and females in a gender-neutral application is a possibility, though it is also possible that there will be a departure from the analysis that has been developed at the ICTY and the International Criminal Tribunal for Rwanda (“ICTR”) starting with the Akayesu trial judgment, to apply the elements of sexual violence against males and females with a different rubric. It is also unclear what role the “[g]ender analysis” component will play in the future exercise of prosecutorial discretion of the ICC (p. 4), though it is clear that the Prosecution will as a matter of policy include men and boys in their future indictments and strategy. (p. 12, paras 16, 20, 27, 28)

c. Addressing Sexual Violence against Males at the Indictment Stage

In the past, as was demonstrated in the Lubanga case, there was not sufficient attention placed on sexual violence against men and boys, as the only reference to this in the trial judgment was made in footnote 1811, and Judge Odio Benito also considered it “discriminatory” (Judge Odio Benito’s Separate and Dissenting Opinion, para. 21) to exclude boys as victims. I agree with Judge Odio Benito on this point: it is imperative to include crimes against men and boys in the prosecutorial strategy and in the jurisprudential considerations in adjudicating crimes of a sexual nature. To fail to do this would not only be wrong, but it would send the world a message that the ICC ignores and tolerates sexual violence against men and boys, and this is not acceptable.

However, the lack of inclusion of crimes against men and boys at the indictment stage might be changing. The Policy Paper states explicitly that “the Office [of the Prosecutor] will ensure that charges for sexual and gender-based crimes are brought wherever there is sufficient evidence to support such charges.” (p. 29, para. 71)

III. In the Case of The Prosecutor v. Bosco Ntaganda

In the Ntaganda case, there is hope that there will be an increased focus on sexual violence against men and boys. The Document Containing the Charges contains accusations of sexual violence against children and adults, (paras 1-5, 14, 33, 41, etc.) but the description of the facts focuses on rape against women and girls. (paras 41-45, 72, 84) While this may be a result of a lack of evidence of crimes committed against men and boys, the initial description of the events for which Ntaganda will go to trial does not include evidence of what may have been significant acts of violence.

Regarding sexual violence against children under the age of 15, there is a discussion of sexual violence in the Document Containing the Charges, (see paras 100-108) though this too focuses on the abuse of girl soldiers. (para. 101) While it is of the utmost imperative to hold alleged perpetrators accountable for sexual crimes against women and girls, it is of equal importance to hold them accountable for crimes against men and boys. Though I do not know if the focus on sexual crimes against females is due to lack of evidence of sexual crimes against males, it should not be due to a lack of prosecutorial zeal in combating crimes against males.

However, in the charges, there is some indication that the prosecution is keeping the possibility open that there will be a focus on sexual crimes committed against males. They state that Ntaganda “committed jointly with others […] the rape and sexual slavery of […] soldiers under the age of 15[.]” (para. 156) Though the earlier description of sexual violence, including against child soldiers, focuses on females, there is the possibility that the prosecution will expand its focus to include all those who may have been victims. The most specific charges of sexual violence resulted in Counts 4 and 5, Rape of Civilians, Count 6, Rape of UPC/FPLC Child Soldiers, Counts 7 and 8, Sexual Slavery of Civilians, and Count 9, Sexual Slavery of UPC/FPLC Child Soldiers (pp. 57-58). This may result in the foundation for a jurisprudential analysis and recognition of sexual violence against men and boys, if the evidence allows.

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One thought on “The Ntaganda Case, Prosecutorial Discretion at the ICC, and the Recognition of Sexual Violence against Males

  1. Pingback: Crimes against children cited in ICC Prosecutor’s preliminary examinations | Diane Marie Amann

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