International criminal law has been vital in fostering the understanding of sexual violence against women in armed conflict as a weapon of war that targets a woman’s role in society. In particular, the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) has been crucial in establishing that the rape of women can constitute a war crime, a violation of the laws and customs of war, and a crime against humanity. While numerous women were in fact sexually abused during the Yugoslav Wars, men also became victims of sexual violence in detention camps and police stations. Yet, their victimization has gone largely unacknowledged.
The examination of the definition of rape used by the ICTY reveals a major impediment for the full visibility of male victimhood through sexual violence. One of the most frequent forms of sexual violence against men in armed in conflict, two men being forced to sexually penetrate each other, does not fit into the ICTY definition of rape. This shortcoming should be addressed and corrected in the future by the International Criminal Court (ICC) so that definitions of crimes of a sexual nature are truly gender inclusive.
Literally, the ICTY definition of rape is formulated in a gender-neutral manner. For an act to constitute rape, it has to involve the sexual penetration of the vagina, the anus or the mouth of the victim by the penis or another object used by the perpetrator. In the context of sexual violence against men, it is usually not the element of sexual penetration that impedes the categorization of the experiences of male victims of sexual violence as rape. Rather, it is the lack of the physical involvement of the perpetrator in the act that is in conflict with the ICTY definition of the offence.
In the ten cases featuring sexual violence against men that were prosecuted at the ICTY (Tadić, Mucić et al., Todorović, Sikirica et al. and Mejakić et al., Stakić, Simić et al., Česić, Brđanin, Krajišnik, and Martić), the perpetrators did not themselves physically assault other men but rather forced male detainees to perform sexual acts on each other (Sandesh Sivakumaran coined the term ‘enforced rape’ to describe this form of sexual abuse). In eight out of ten cases, evidence was heard that male detainees were forced to perform fellatio on each other. Unquestionably, acts of fellatio involve sexual penetration of the mouth. However, as the perpetrator was in those cases not physically involved, those scenarios did not meet the ICTY definition of rape. Only in Simić et al. (Prosecutor v. Simić et al. Trial Judgement, IT-95-9-T, 17 October 2003, § 728) and Sikirica et al. (Prosecutor v. Sikirica et al. Indictment (Second Amended), IT-95-8-PT, 3 January 2001, § 46), where objects were forced into the anus of a detainee, would the sexual assault have been within the scope of the definition of rape.
Whereas the Furundžija Trial Chamber held that the prohibition of rape under Article 5 (g) of the ICTY Statute embraces all serious abuses of a sexual nature (Prosecutor v. Furundžija Trial Judgement, IT-95-17/1T, 10 December 1998, § 186), this view was rarely implemented in later cases. The exclusion of ‘enforced rape’ from the ICTY definition of rape discounts the fact that it is as traumatic for the male victim to be forced to perform fellatio or sexual intercourse with a fellow detainee as it is to be forced to do so with the perpetrator him-/herself. In effect, the ICTY definition of rape excludes one of the most frequent forms of sexual violence against men that was perpetrated during the Yugoslav Wars to be recognized as rape. In this respect, the definition is de facto not gender neutral. The Česić Plea Agreement picked up on this dilemma and amended the concept of physical penetration to the benefit of male victims of sexual violence. Accordingly, the accused had to “[cause] the victim(s) to be sexually penetrated without their consent and [with the intent] that a sexual penetration occur[s]” to be convicted for rape (Prosecutor v. Česić, IT-95-10/1-PT, Plea Agreement, 28 October 2003, § 5). The Trial Chamber accepted this extended understanding of the offence. However, it was not utilized in any other case of the ICTY.
In order to enhance the recognition and the visibility of male victimhood through sexual violence in armed conflict, international criminal law should provide for ‘enforced rape’ to fall under the definition of rape. The Elements of Crimes (EoC) of the Rome Statute of the International Criminal Court (ICC) define the actus reus of the crime of rape as follows:
“The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.”
(Elements of Crimes, Article 7 (1) (g)-1 p. 119, Article 8 (2) (b) (xxii)-1 p. 141; Article 8 (2) (e) (vi)-1 p. 150.)
Accordingly, the definition requires the physical participation of the perpetrator. To this end, it seems that the ICC definition of the crime does not encompass a situation where the perpetrator forced two persons to engage in sexual intercourse with each other without his or her physical involvement. Yet, in a footnote of the ICC definition of rape, the EoC stipulates that the concept of invasion is “intended to be broad enough to be gender-neutral” (Footnote in paragraph (1) of the definition of rape in the ICC EoC. See: Elements of Crimes, Article 7 (1) (g)-1 p. 119, Article 8 (2) (b) (xxii)-1 p. 141; Article 8 (2) (e) (vi)-1 p. 150). Does this stipulation offer sufficient space to prosecute forced sexual intercourse between two male victims under a charge of rape at the ICC? This question has yet to be answered. Thus far, the ICC has not dealt with a case in which ‘enforced rape’ was brought to trial. The applicability of the definition of rape to the most frequent form of sexual violence against men in armed conflict can therefore not yet be confirmed by relevant case law.
A more straightforward inclusion of ‘enforced rape’ into the ICC definition of rape would better serve the purpose of recognizing male sexual abuse. For example, the concept of invasion could alternatively be defined broadly enough so as to include a scenario wherein the perpetrator causes another person to be invaded. Unfortunately, an amendment of the Rome Statute to the benefit of male victims of sexual violence is unlikely. It is therefore up to the judges and the prosecutors of the ICC to make a conscious choice for including ‘enforced rape’ into the Court’s definition of rape if a case comes to its attention in which this crime as been committed.