1. Introduction

In recent years, blogs and law journal articles have increasingly focused on the issue of sexual and gender-based violence (“SGBV”) committed against men and boys during conflict. In earlier years, this issue received much less attention and judicial scrutiny in international criminal tribunals. Yesterday’s judgment in the Ntaganda case (“Ntaganda judgment”, “the Judgment”) contains evidence that SGBV committed against men and boys is receiving increased attention at the International Criminal Court. In the judgment, Trial Chamber VI (“TC”) explicitly describes some acts of SGBV committed against men and boys and labels them as “rape”, the severest criminal label that can be affixed to sexual crimes, which shows that progress has been made on this issue. The issue of gender was covered more broadly here in yesterday’s excellent blog post.

2. Recap – the ICC’s Policy Paper on Sexual and Gender-Based Crimes

The June 2014 Policy Paper on Sexual and Gender-Based Crimes (“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.” (Policy Paper, p. 3, also see p. 4) The definition’s syntax leaves something unclear: whether gender-based crimes against women and girls are farther up in the hierarchy than those committed against men and boys. The lack of clarity derives from the following phrasing: “women and girls, and men and boys, because of their gender.” Perhaps rephrasing in order to give the impression of full inclusivity would be beneficial.

3. The Ntaganda Judgment

The Ntaganda Judgment’s explicit description of acts of SGBV committed against men and boys is a positive indicator that ICC practice is increasing its focus to include acts committed against men and boys. The Judgment includes witness testimony describing such acts. A witness recalled: “UPC/FPLC soldiers anally penetrate men with their penises or by using ‘bits of wood’. Following the rapes, the men ‘suffered a great deal’ and then they died.” (para. 623) Explicit description of SGBV acts committed against men and boys is not only important for holding alleged perpetrators publicly accountable, but hopefully a consequence of shifting the discussion to including men and boys will be to reduce (and eventually to eliminate) the stigma attached to sexual victimization. For example, in the Bemba Trial Judgment, witness P23 described himself as a “‘dead man’” after three perpetrators “penetrat[ed] his anus with their penises.” (para. 494)

Of note is the Trial Judgment’s language in describing sexual violence. In the same paragraph in which a witness described seeing soldiers anally penetrate men, the Trial Judgment describes the witness’ recollection of “s[eeing] other women being raped inside and outside the house, including with sticks.” (para. 623) However, in its description of sexual acts committed by soldiers against men, the Trial Judgment does not use the word “rape” in the same sentence as “anally penetrate”, though it then states that “Following the rapes, the men ‘suffered a great deal’ and then they died.” (para. 623) Later in the judgment, it states: “in Kobu, UPC/FPLC soldiers raped detained women and girls; and also anally penetrated men with their penises or by using ‘bits of wood’’. (para. 940) It is inexplicable why anal penetration – whether committed with a penis or a ‘bit of wood’ – is not described as rape. Furthermore, noting the structure of this section of the Judgment, this finding comes under the sub-heading “Rape as a crime against humanity and as a war crime (Counts 4 and 5)”, and it is firmly situated between several statements describing acts of rape against women. (see also paras. 873, 942)

However, despite the use of language described, the Trial Chamber did find that these acts satisfied the material elements regarding rape as a crime against humanity and as a war crime. (paras. 941-948) This is important, as it affirms that the acts of SGBV constitute acts of rape and should not be categorized as falling under labels of lesser severity. Recalling Tadić, in which horrifying acts of SGBV were described, continuing to hold individuals responsible for acts of sexual violence, and using the strongest language in cases of the most shocking acts of depravity and criminality, is of the highest priority.

4. Conclusion

It appears that there is some progress being made at the international level in confronting sexual violations of the bodily integrity of victims, a group comprised of women and girls and men and boys. Though there is still not enough focus on and analysis of crimes committed against men and boys, the Ntaganda judgment makes some incremental improvement in addressing these acts, and it is important for international justice to continue to make inroads in this direction.