The Prosecution of Sexual Violence against Men in International Criminal Law

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. Continue reading