1 Faculty of Law
The invisibility of male victims of sexual violence in
international criminal law
A research into the definition and prosecution of sexual violence against
men and boys before international and hybrid criminal courts and tribunals
Elisabeth Silda
12787264
elisabethsilda@hotmail.com
International and Transnational Criminal Law
Supervisor: Prof. Elinor Fry Submission Date: 1 July 2020
2 TABLE OF CONTENT
ABBREVIATIONS ... 4
ABSTRACT ... 5
INTRODUCTION ... 6
CHAPTER I. DEFINING SEXUAL VIOLENCE IN THE LEGAL INSTRUMENTS OF INTERNATIONAL AND HYBRID CRIMINAL COURTS AND TRIBUNALS ... 10
SECTION I.THE ICTY,ICTRSTATUTES, AND THE LAW ON THE ECCC ... 10
SECTION II.THE SCSLSTATUTE ... 10
SECTION III.THE LEGAL INSTRUMENTS OF THE ICC ... 11
§1. Defining rape ... 11
§2. Defining other forms of sexual violence ... 12
SECTION IV.CONCLUSION ... 13
CHAPTER II. DEFINING SEXUAL VIOLENCE IN THE CASE LAW OF INTERNATIONAL AND HYBRID CRIMINAL COURTS AND TRIBUNALS ... 14
SECTION I.DEFINING RAPE ... 14
§1. A broad definition of rape as established in Akayesu ... 14
§2. Rape in terms of penetration as established in Furundžija and Kunarac ... 15
§3. The inclusion of causing someone else to be raped as established in Češić ... 17
§4. Towards a male-inclusive definition of rape ... 18
SECTION II.DEFINING SEXUAL SLAVERY ... 18
SECTION IV.DEFINING FORCED MARRIAGE... 20
§1. Forced marriage conflated with sexual slavery ... 20
§2. Forced marriage as the crime against humanity of other inhumane acts ... 21
SECTION V.DEFINING SEXUAL VIOLENCE ... 23
3 CHAPTER III. PROSECUTION OF SEXUAL VIOLENCE AGAINST MEN AND BOYS BEFORE INTERNATIONAL AND HYBRID CRIMINAL COURTS AND TRIBUNALS 26
SECTION I.SEXUAL VIOLENCE AGAINST MEN AND BOYS REPORTED BUT NOT CHARGED ... 26
SECTION II.SEXUAL VIOLENCE AGAINST MEN AND BOYS CHARGED BUT NOT AS SUCH ... 28
§1. Acts of male rape not charged as such ... 28
§2. Other acts of sexual violence not charged as such ... 31
SECTION III.SEXUAL VIOLENCE AGAINST MEN AND BOYS CHARGED AS SUCH ... 33
SECTION VI.CONCLUSION ... 34
CONCLUSION... 36 BIBLIOGRAPHY ... 38 LEGAL INSTRUMENTS ... 38 CASE LAW ... 38 §1. ICTY ... 38 §2. ICTR ... 39 §3. SCSL ... 40 §4. ECCC ... 41 §5. ICC ... 41 ACADEMIC SOURCES ... 42
4 ABBREVIATIONS
AFRC Armed Forces Revolutionary Front
CaH Crime against Humanity
ECCC Extraordinary Chambers in the Courts of
Cambodia
EoC Elements of Crimes
ICC International Criminal Court
ICL International Criminal Law
ICTR International Criminal Tribunal for Rwanda
ICCTs International Criminal Courts and Tribunals
ICTY International Criminal Tribunal for the Former
Yugoslavia
OIA Other Inhumane Acts
PTC Pre-Trial Chamber
RS Rome Statute
RUF Revolutionary United Front
SCC Supreme Court Chamber
SCSL Special Court for Sierra Leone
5 ABSTRACT
Given the excessive number of female victims of sexual violence, men and boys who suffered sexual abuse tend to remain invisible. Despite reports showing the intensity and frequency of this issue, it has not received the attention it deserves in international criminal law. At domestic level, a 2014 survey shows that 90% of men are not protected if they become victims of sexual violence due to the lack of a gender-neutral definition of rape in their penal codes. The question arises whether the same problem occurs at international criminal level. This thesis considers how (the lack of) a gender-neutral definition of various forms of sexual violence could influence the prosecution of sexual violence against men and boys before international and hybrid criminal courts and tribunals. This thesis first examines the legal instruments and the case law of the ICTY, ICTR, SCSL, ECCC, and ICC to determine whether rape, sexual slavery, forced marriage, and any other form of sexual violence are defined in a gender-neutral manner. It subsequently checks whether sexual violence against men and boys is prosecuted at these courts and tribunals, and in which manner. It concludes that not all definitions are gender-neutral and could therefore bar the prosecution of sexual violence against men and boys. However, it also discovers that even when the legal framework entails a gender-neutral definition, acts of sexual violence against men and boys are not always prosecuted, or at least not as such. The inconsistent labelling of this violence as sexual, but sometimes as solely physical violence, creates ambiguity. The lack of a gender-neutral definition sometimes hinders the prosecution of sexual violence against men and boys, but also other factors come into play which contribute to the invisibility of these male victims in international criminal law.
6 INTRODUCTION
Whenever we talk about sexual violence, we immediately think of sexual violence against women and girls. Even though there is an excessive number of female victims of sexual violence, men and boys also deserve a place in the equation. Sexual violence against men and boys (SVMB) specifically aims at their humiliation and degradation, and is thus mostly hidden because of the social shame surrounding it.1 Many reports show the intensity and frequency of SVMB, but there has been a lack of attention for this problem in the international community.2 During the conflict in the former Yugoslavia multiple incidents of SVMB have been documented, such as male rape, forced sexual acts, forced nudity, penile amputations with forcing others to ingest the penis, and genital beatings.3 Also more recent conflicts in Syria and Libya report the use of SVMB. These examples stress the need for more focus within international criminal law (ICL) on this issue.4
A 2014 survey indicates that legal protection of men and boys who have become victims of sexual violence is missing at domestic level. This survey reviewed the rape provisions in 189 domestic penal codes or equivalent legislation. It researched whether definitions of sexual violence included the gender of the victim or of the perpetrator. Furthermore, the researchers examined provisions on same sex behaviour to see if there was a distinction made between consensual and non-consensual acts. If such a distinction was lacking, there was the possibility that the reporting victim could be criminalized for participating in a same sex act against his will.5 On the basis of these characteristics, four categories of domestic codes were distinguished. First, there were codes that only recognized women as victims of rape and criminalized victims of non-consensual same sex acts. Second, other codes limited the victims to women but did not criminalize same sex acts. The third category of codes allowed men to be victims of rape but criminalized same sex acts. Finally, there were codes that
1 Z. Pinar Erdem, ‘Men Can Experience Sexual Violence in Wart Too’ [2019] Pass Blue,
<https://www.passblue.com/2019/05/03/men-can-experience-sexual-violence-in-war-too/> accessed 6 May 2020.
2 Cassandra Mudgeway, ‘Sexual exploitation by UN peacekeepers: the “survival sex” gap in international human rights
law’ [2017] 21(9) The International Journal of Human Rights, 1453, 1453; Dustin Lewis, ‘Unrecognized victims: Sexual violence against men in conflict settings under international law’ [2009] Wisconsin Journal of International Law, 1, 24; Sandesh Sivakumaran, ‘Sexual violence against men in armed conflict’ [2007] European Journal of International Law, 253, 254.
3 Saeeda Verrall, ‘The Picture of Sexual Violence in the Former Yugoslavia Conflict as reflected in ICTY Judgements’
in Baron Serge Brammertz and Michelle Jarvis, Prosecuting Conflict-Related Sexual Violence at the ICTY (Oxford Scholarly Authorities on International Law 2016) 299, 313.
4 Valerie Oosterveld, ‘Sexual Violence Directed Against Men and Boys in Armed Conflict or Mass Atrocity: Addressing
a Gendered Harm in International Criminal Tribunals’ [2014] Journal of International Law and International Relations, 107, 108.
5 Chris Dolan, ‘Into the mainstream: addressing sexual violence against men and boys in conflict’ (Briefing paper prepared
7 adopted a gender-neutral definition of rape victims and did not criminalize same sex acts. The survey concluded that 90% of men are not protected by their domestic law if they become victims of sexual abuse. It also established that in 62 countries only women can be victims of rape and in 28 countries rape can only be committed by men.6 Even though this survey dates from 2014, it demonstrates a huge problem concerning the definition of sexual violence in domestic codes, which might have an influence on the prosecution of these crimes.
This raised the question whether the same problem occurs at the international criminal level, and more specifically, before international and hybrid criminal courts and tribunals (ICCTs).7 This thesis focuses on the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) because they both set the first examples of defining rape in their case law. Furthermore, men’s sexuality was systematically targeted during the Yugoslav conflict and also during the Rwandan genocide incidents of SVMB have been reported.8 This thesis further examines the Special Court for Sierra Leone (SCSL) because it was the first court to define sexual slavery and forced marriage in its case law. Its Statute also includes various forms of sexual violence, in contrast with the ICTY and ICTR Statutes. The Extraordinary Chambers of the Courts of Cambodia (ECCC) are also important to include because of their distinct crime of forced marriage. Finally, this thesis also looked at the International Criminal Court (ICC) due to its permanent mandate and the fact that it can shed a light on how sexual violence is currently defined and prosecuted.
This thesis is dedicated to four problems which emerged out of the preliminary literature research. The first problem relates to the definition of various forms of sexual violence before ICCTs. This thesis will determine whether the legal instruments of the ICTY, ICTR, SCSL, ECCC, and the ICC provide a definition of rape, sexual slavery, and any other form of sexual violence.9 Moreover, it will examine if these definitions are gender-neutral and allow the prosecution of SVMB. Second, few of 6 Dolan (n 5) 5-6.
7 For the purpose of this thesis, ICCTs include the ICTY, ICTR, and ICC but also hybrid courts that combine national
with international standards, such as the SCSL and ECCC: Beth K. Dougherty, ‘Right-sizing international criminal justice: the hybrid experiment at the Special Court for Sierra Leone’ [2004] International Affairs, 311, 311; Tomas Hamilton and Michael Ramsden, ‘The Politicisation of Hybrid Courts: Observations from the Extraordinary Chambers in the Courts of Cambodia’ [2014] International Criminal Law Review, 115, 116.
8 Prosecutor v. Muhimana (Judgement) ICTR-95-1B-T, Trial Chamber III (28 April 2005); Prosecutor v. Bagosora et al.
(Judgement) ICTR-98-41-T, Trial Chamber I (18 December 2008); Maike Isaac and Olga Jurasz, ‘Towards an Intersectional Understanding of Conflict-Related Sexual Violence: Gender, Sexuality and Ethnicity at the ICTY’ [2018] International Criminal Law Review, 853, 868.
9 The crimes of forced pregnancy, enforced sterilization, and enforced prostitution are excluded from the scope of this
thesis because forced pregnancy cannot be committed against men and boys, and there is no relevant jurisprudence with regard to the other two crimes.
8 the legal instruments of these ICCTs actually define the various forms of sexual violence. Therefore, an analysis of their case law will set out how these ICCTs define rape, sexual slavery, forced marriage, and any other form of sexual violence. Even though the crime of forced marriage is not mentioned in any of the legal instruments, it is of specific importance due to its male victims. Again, the possible gender-based nature of these definitions will be assessed. The third problem relates to the prosecution of SVMB. The question arises whether SVMB is prosecuted before ICCTs and in which manner. The principle of fair labelling requires that offences are classified, defined, and properly labelled.10 An accurate classification of SVMB before ICCTs is necessary to give male victims a voice, to break down existing stereotypes, and to record a complete and correct picture of the committed violence.11 This thesis will thus try to establish whether SVMB is prosecuted and under which label, through a case law analysis of the previously mentioned ICCTs. These problems can be formulated in following research sub-questions:
− How are rape, sexual slavery, and any other form of sexual violence defined in the legal instruments of ICCTs?
➢ In the ICTY Statute? ➢ In the ICTR Statute? ➢ In the SCSL Statute? ➢ In the Law on the ECCC? ➢ In the Rome Statute (RS)?
➢ In the ICC’s Elements of Crimes (EoC)?
− How are rape, sexual slavery, forced marriage and any other form of sexual violence defined in the case law of ICCTs?
➢ Before the ICTY? ➢ Before the ICTR? ➢ Before the SCSL?
10 Hilmi M. Zawati, Fair Labelling and the Dilemma of Prosecuting Gender-Based Crimes at the International Criminal Tribunals (Oxford University Press 2014) 1, 106.
9 ➢ Before the ECCC?
➢ Before the ICC?
− Is SVMB prosecuted before ICCTs and in which manner? ➢ Before the ICTY?
➢ Before the ICTR? ➢ Before the SCSL? ➢ Before the ECCC? ➢ Before the ICC?
These research sub-questions will answer the main research question: “How does (the lack of) a gender-neutral definition of various forms of sexual violence influence the prosecution of SVMB before ICCTs?”
10 CHAPTER I. DEFINING SEXUAL VIOLENCE IN THE LEGAL INSTRUMENTS OF INTERNATIONAL AND HYBRID CRIMINAL COURTS AND TRIBUNALS
SECTION I. THE ICTY, ICTR STATUTES, AND THE LAW ON THE ECCC
None of the legal instruments of the ICTY, ICTR, and ECCC define sexual violence. However, acts of sexual violence can constitute war crimes, crimes against humanity (CaH), or acts of genocide.12 Acts of sexual violence can be qualified as torture or inhuman treatment, wilfully causing great suffering or serious injury to body or health, violence to life, health, and physical or mental well-being of persons, or outrages upon personal dignity, amounting to war crimes.13 With regard to the crime of genocide, sexual violence can fall under causing serious bodily or mental harm to members of the group or imposing measures to prevent births.14 Finally, the crime of rape is explicitly
mentioned in all three legal instruments as one of the acts constituting a CaH.15 However, the act of
rape is not further defined. Besides rape, other acts of sexual violence could also qualify as torture, persecution, or other inhumane acts (OIA) amounting to a CaH.16
SECTION II. THE SCSL STATUTE
The SCSL Statute enumerates various sexual crimes which can constitute a CaH.17 Besides rape, it includes sexual slavery, enforced prostitution, forced pregnancy, and any other form of sexual violence.18 However, the definition of these crimes is left to the discretion of the judges. Acts of sexual violence can also constitute a war crime because it could qualify as violence to life, health, and physical or mental well-being of persons, or outrages upon personal dignity.19 Finally, the question whether sexual violence can be an act of genocide is irrelevant before the SCSL since it is not part of its subject-matter jurisdiction.
12 UNSC Res 1820 (19 June 2008) UN Doc S/RES/1820, 3 para 4.
13 UNSC Statute of the International Criminal Tribunal for the Former Yugoslavia (25 May 1993) Article 2 (b) and (c);
UNSC Statute of the International Criminal Tribunal for Rwanda (8 November 1994) Article 4 (a) and (e); Law on the Establishment of the Extraordinary Chambers (2001) Article 6.
14 ICTY Statute, (n 13) Article 4 (2)(b) and (d); ICTR Statute (n 13) Article 2 (2) (b) and (d); Law on the ECCC (n 13)
Article 4.
15 ICTY Statute (n 13) Article 5 (g); ICTR Statute (n 13) Article 3 (g); Law on the ECCC (n 13) Article 5.
16 ICTY Statute (n 13) Article 5 (f), (h) and (i); ICTR Statute (n 13) Article 3 (f), (h) and (i); Law on the ECCC (n 13)
Article 5.
17 UNSC Statute of the Special Court for Sierra Leone (16 January 2002) Article 2 (g). 18 Ibid Article 2 (g).
11 SECTION III. THE LEGAL INSTRUMENTS OF THE ICC
The RS and the ICC’s EoC show an improvement compared to the previous legal instruments.20 The RS includes a definition of gender in which it makes reference to both males and females.21 Therefore, gender-based crimes also include crimes particularly committed against men or boys and women can be perpetrators of gender-based crimes. Other genders, such as transgender or intersexual persons are not mentioned. These particular groups can be vulnerable targets of sexual violence, which makes the definition, despite being an improvement, also too limited.22 The RS also enumerates various forms of sexual violence but fails to provide a definition. However, the ICC’s EoC sets out the definitions of these sexual crimes and can be used to assist the court in interpreting the RS.23 Nevertheless, the ICC’s EoC is not binding for judges, which leaves them with considerable discretion.24
§1. Defining rape
The ICC is the first international criminal court that explicitly defines the crime of rape as a CaH and as a war crime in a legal instrument. The ICC’s EoC adopted a gender-neutral definition of rape.25
The Preparatory Commission wanted to focus on the invasion of the victim’s body, which allows the recognition of men and boys as victims of rape.26 The Commission also considered the domestic definitions of rape, in which it was often defined as forced physical penetration.27 However, it chose to deliberately leave out some domestic limitations, such as those limiting the victims of rape to women, those accepting only penile penetration as rape, and those stating that rape cannot occur in marriage.28 The end result was a combination of both domestic and international concerns: “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.”29
20 Dolan (n 5) 6.
21 UNGA Rome Statute of the International Criminal Court (17 July 1998) Article 7 (3).
22 Amrita Kapur and Kelli Muddell, ‘When No One Calls It Rape: Addressing Sexual Violence Against Men and Boys in
Transitional Contexts’ [2016] International Center for Transitional Justice, 1, 20.
23 RS (n 21) Article 9. 24 Zawati (n 10) 109.
25 International Criminal Court’s Elements of Crimes (2011) Article 7 (1)(g)-1.
26 Ibid Article 7 (1) (g)-1, footnote 15 states that ‘invasion’ is intended broad enough to be gender-neutral.
27 Valerie Oosterveld, ‘The influence of domestic legal traditions on the gender jurisprudence of international criminal
tribunals’ [2013] Cambridge Journal of International and Comparative Law, 825, 834.
28 Maria Eriksson, Defining Rape: Emerging Obligations for States Under International Law (Brill-Nijhoff 2011) 1,
44-51.
12 §2. Defining other forms of sexual violence
The RS goes significantly beyond the prohibition of rape, by mentioning sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence as a possible CaH or war crime.30 The enumeration in the RS is broader than the one in the SCSL Statute, because it also includes enforced sterilization. Even though this list is quite extensive, it is far from complete. Other sexual crimes like pornography, forced nudity, sexual humiliation, forced circumcision, penile amputation, sexual mutilation, and punching or electroshocks to the genitals were left out.31 It is clear that including all types of sexual violence in the RS is not feasible. Nonetheless, the fact that the types of sexual violence generally committed against men and boys are lacking, could bar their prosecution.
In contrast with the SCSL, the ICC also defines the sexual crimes it mentions. The ICC’s EoC define sexual slavery as the situation in which “the perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons […] and caused such person or persons to engage in one or more acts of a sexual nature.”32 Furthermore, the residual category of any other form of sexual violence is defined as “an act of a sexual nature against one or more persons or caused such a person or persons to engage in an act of a sexual nature by force, or by threat of force, or coercion […].”33 This last definition explains what makes a sexual act violent, but fails to explain what makes
a violent act sexual. This raises the question of how the sexual nature of an act should be determined. Is it the cultural significance of the act that makes it sexual, or do the body parts involved play a decisive role?34 A definition that sheds more light on the meaning of the word ‘sexual’ is provided by the UN Special Rapporteur in his report on systemic rape, sexual slavery, and slave-like practices: “any violence, physical or psychological, carried out through sexual means or by targeting sexuality.”35 This definition determines three ways in which physical or psychological violence may be qualified as sexual. First, violence can be sexual if it targets a victim’s sexual characteristics, such as certain body parts like breasts, vaginas, testicles, or penises.36 Second, an act is sexual when the
30 RS (n 21) Articles 7 (1)(g), 8 (2)(b)(xxii), and 8 (2)(e)(vi).
31 Solange Mouthaan, ‘The Prosecution of Gender Crimes at the ICC: Challenges and Opportunities’ [2011] International
Criminal Law Review, 1, 11.
32 ICC’s EoC (n 25) Articles 7 (1)(g)-2, 8 (2)(b)(xxii)-2, and 8 (2)(e)(vi)-2. 33 Ibid Articles 7 (1)(g)-6, 8 (2)(b)(xxii)-6, and 8 (2)(e)(vi)-6.
34 Rosemary Grey, ‘Conflicting interpretations of ‘sexual violence’ in the International Criminal Court: Recent cases’
[2014] Australian Feminist Studies, 273, 276.
35 UNCHR (Sub-Commission), ‘Report of the Special Rapporteur on systemic rape, sexual slavery, and slavery-like
practices pursued during armed conflict’ (22 June 1998) UN Doc E/CN.4/Sub.2/1998/13, paras 21-22.
13 perpetrator uses sexual means to carry out the violence.37 Third, violence is deemed sexual when it targets the sexuality of the victim, for example a victim’s virginity or virility.38 Sexual violence is therefore not only about sex, but also about body parts and socially constructed norms of what is sexual.39
SECTION IV. CONCLUSION
It can be concluded that only the legal instruments of the SCSL and the ICC explicitly refer to various forms of sexual violence other than rape.40 This is already a significant legal issue because it requires prosecutors to consider this evidence under other categories.41 Furthermore, only the ICC’s EoC provide a definition of rape, sexual slavery, and any other form of sexual violence. There is no doubt that the legal instruments of the ICC have contributed to the progress in defining sexual violence.42
However, the success of this progress will be reflected in the prosecution of these crimes, as will be discussed in the third chapter. In addition, the forms of sexual violence commonly committed against men and boys, such as forced circumcision, penile amputation, sexual mutilation, and genital electrocution, are not listed in any of the legal instruments of the ICCTs.43 The lack of clear definitions in the statutory laws of ICCTs is one of the issues barring an effective prosecution of gender-based crimes.44 However, this thesis will focus on the influence of (the lack of) a gender-neutral definition on the prosecution of SVMB, not the lack of a definition in general.
37 UNCHR, (n 35) paras 21-22. 38 Ibid.
39 Oosterveld 2014 (n 4) 122.
40 SCSL Statute (n 17) Article 2 (g); RS (n 21) Articles 7 (1)(g), 8 (2)(b)(xxii), and 8 (2)(e)(vi). 41 Oosterveld 2014 (n 4) 113.
42 Kate Fitzgerald, ‘Problems of Prosecution and Adjudication of Rape and other Sexual Assaults under International
Law’ [1997] European Journal of International Law, 638, 638.
43 Ibid 121. 44 Zawati (n 10) 68.
14 CHAPTER II. DEFINING SEXUAL VIOLENCE IN THE CASE LAW OF INTERNATIONAL AND HYBRID CRIMINAL COURTS AND TRIBUNALS
The above-mentioned legal instruments do not spell out all the legal elements in relation to each of the underlying crimes. Therefore, the case law of each ICCT will be discussed to further elaborate on the definitions of rape, sexual slavery, forced marriage, and any other form of sexual violence and their possible gender-neutral nature.
SECTION I. DEFINING RAPE
In the case law of the ICCTs, four definitions of rape emerged. This is complemented by the definition of rape in the ICC’s EoC, which is also recognized in the case law of the SCSL and the ICC. These five definitions represent different lines of reasoning with regard to the relevant elements of rape.45
§1. A broad definition of rape as established in Akayesu
The ICTR was the first international criminal tribunal to directly address mass and systematic rape. In Prosecutor v. Akayesu, the accused was charged with rape as a CaH and the war crime of outrages upon personal dignity.46 The Trial Chamber additionally examined whether rape and other forms of sexual violence could constitute an act of genocide.47 When defining rape, the Trial Chamber examined the domestic context for guidance and found that some domestic laws define rape as the forcible penile penetration of the female vagina, thereby excluding male victims and instrumental rape.48 The Trial Chamber opted for a more flexible definition of rape in the ICL context because rape should not be captured in a mechanical description of objects and body parts.49 It thus favoured a conceptual definition of rape: “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive.”50 The term ‘invasion’ points to the perspective of the victim, who is invaded by the perpetrator.51 By defining rape from the perspective of the victim, the Trial Chamber deviated from the domestic definitions of rape.52 It allowed a gender-neutral interpretation in which both men and women can be a victim or a perpetrator of rape. This definition also includes acts that
45 Anne-Marie De Brouwer, Supranational criminal prosecution of sexual violence: The ICC and the practice of the ICTY and ICTR (Intersentia 2005) 1, 105.
46Prosecutor v. Akayesu (Indictment) ICTR-96-4-I (17 June 1997). 47 De Brouwer (n 45) 105-106.
48Prosecutor v. Akayesu (Judgement) ICTR-96-4-T, Trial Chamber (2 september 1998) paras 596 and 686. 49Ibid paras 597 and 687.
50Ibid para 597.
51 De Brouwer (n 45) 107.
15 involve the insertion of objects and/or the use of intrinsically non-sexual bodily orifices because these acts were considered to be a common form of humiliation and harm during the Rwandan genocide. For example, the insertion of a piece of wood into the sexual organs of a woman can constitute rape.53 This definition was maintained in Prosecutor v. Musema, where the Trial Chamber stressed that the essence of rape is the sexual aggression under conditions of coercion and not the details of the body parts and objects involved.54 This definition was further upheld in Prosecutor v. Niyitegeka and
Prosecutor v. Muhimana.55
The Akayesu definition was again upheld before the ICTY in Prosecutor v. Delalić et al., where the Trial Chamber needed to determine whether rape could constitute torture as a war crime.56 The Trial Chamber decided that it should not deviate from the Akayesu definition and found that acts of both vaginal as anal penetration by the penis under coercive circumstances constituted rape.57 The Trial
Chamber also argued that forced fellatio could constitute rape, but it was not pleaded appropriately.58 Finally, the ECCC adopted a similar definition in the Closing Order of Case 002.59 It defined the CaH
of rape within forced marriage as “the physical invasion of a sexual nature against a victim in coercive circumstances in which the consent of the victim was absent.”60 The Trial Chamber added the lack of consent as a requirement. After its severance in September 2011, another definition of rape within forced marriage was adopted in Case 002/02, which will be discussed later.61
§2. Rape in terms of penetration as established in Furundžija and Kunarac
The second definition of rape was established before the ICTY. In Prosecutor v. Furundžija, the prosecutor proposed a perpetrator-focused definition like in domestic codes, in which rape would be defined in terms of penetration.62 The use of the word ‘penetration’ points to the perspective of the perpetrator, who penetrates the victim.63 The Trial Chamber seemed to imply that the definition in
53Akayesu (Judgement) (n 48) paras 596-597.
54 Prosecutor v. Musema (Judgement) ICTR-96-13-A, Trial Chamber I (27 January 2000) para 226.
55 Prosecutor v. Niyitegeka (Judgement) ICTR-96-14-T, Trial Chamber I (16 May 2003) paras 220 and 226; Muhimana
(Judgement) (n 8) paras 535-551.
56Prosecutor v. Delalić et al. (Judgement) IT-96-21-T, Trial Chamber (16 November 1998) para 475. 57Ibid paras 478-479, 940, and 962.
58Ibid para 1066.
59 Case 002 (Closing Order) 002/19-09-2007-ECCC-OCIJ, Office of the Co-Investigating Judges (15 September 2010)
para 1431.
60 Ibid.
61 Case 002/02 (Judgement) 002/19-09-2007/ECCC/TC, Trial Chamber (16 November 2018) para 731.
62Prosecutor v. Furundžija (Judgement) IT-95-17/1-T, Trial Chamber II (10 december 1998) paras 174 and 180. 63 De Brouwer (n 45) 107.
16
Akayesu was not specific enough and therefore violated the legality principle.64 Thus, the Trial Chamber defined rape as “the sexual penetration, however slight of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator, or of the mouth of the victim by the penis of the perpetrator by coercion, force, or threat of force against the victim or a third person.”65 This definition excludes the situation in which a perpetrator forces a male victim to penetrate him/her, but also the penetration by a perpetrator’s finger or tongue.66 Despite the lack of domestic consensus concerning the act of forced fellatio, the Trial Chamber concluded that it should also qualify as rape under ICL.67 This definition was not upheld in subsequent judgements, but replaced by the Kunarac definition.68
The Trial Chamber in Prosecutor v. Kunarac et al. followed the first part of the Furundžija definition.69 However, the Trial Chamber deemed the second requirement of coercion, force, or threat
of force too narrow because an act of sexual penetration can also be rendered non-consensual or involuntary on the part of the victim by other factors, such as physical or mental incapacity, inducement by surprise, or misrepresentation.70 This resulted in a slightly different definition: “the sexual penetration, however slight, of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator, or of the mouth of the victim by the penis of the perpetrator, where such sexual penetration occurs without the consent of the victim […].”71
This definition was upheld before the SCSL in Prosecutor v. Brima et al., also known as the Armed
Forces Revolutionary Council case (AFRC case).72 In addition to the chapeau elements of a CaH, the Trial Chamber added following elements for the crime of rape: “the non-consensual penetration,
64 De Brouwer (n 45) 107.
65Furundžija (Judgement) (n 62) para 185.
66 The finger and tongue of the perpetrator do not fall under the term ‘objects’ as used in the definition: Valerie Oosterveld,
‘The Legacy of the ICTY and ICTR on sexual and gender-based violence’ in Milena Sterio, The Legacy of Ad Hoc Tribunals in International Criminal Law (Cambridge University Press 2019) 197, 201.
67Furundžija (Judgement) (n 62) paras 182-184.
68Prosecutor v. Kunarac et al. (Judgement) IT-96-23-T & IT-96-23/1-T (22 February 2001) para 437. 69Ibid para 460.
70Ibid paras 446-456.
71Ibidpara 460. This definition was also upheld in appeal: Prosecutor v. Kunarac et al. (Appeals Judgement)
IT-96-23-A & IT-96-23/1-IT-96-23-A, IT-96-23-Appeals Chamber (12 June 2002) para 128. It was further upheld in Prosecutor v. Kvočka (Judgement) IT-98-30/1-T, Trial Chamber (2 November 2001) paras 177-179; Prosecutor v. Semanza (Judgement and Sentence) ICTR-97-20-T, Trial Chamber III (15 May 2003) paras 344-346; Prosecutor v. Kajelijeli (Judgement and Sentence) ICTR-98-44A-T, Trial Chamber II (1 December 2003) para 915; Prosecutor v. Kamuhanda (Judgement) 99-54A-T, Trial Chamber II (22 January 2004) para 709; Prosecutor v. Ndindiliyimana et al. (Judgement and Sentence) ICTR-00–56-T, Trial Chamber II (17 May 2011) paras 2121-2122; Prosecutor v. Nyiramusuhuko et al. (Judgement) ICTR-98– 42-T, Trial Chamber II (24 June 2011) para 6075; Prosecutor v. Karemera et al. (Judgement and Sentence) ICTR98–44-T, Trial Chamber III (2 February 2012) paras 1676-1677.
17 however slight, of the vagina or anus of the victim by the penis of the perpetrator or by any other object used by the perpetrator, or of the mouth of the victim by the penis of the perpetrator, and the intent to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim.”73 This definition is slightly different because it explicitly requires knowledge of the lack of the victim’s consent. The Trial Chamber in Prosecutor v. Taylor reiterated these elements of rape as a CaH.74
Finally, the ECCC in Case 001 defined rape as “the non-consensual penetration of the victim.”75 The Trial Chamber chose to follow this approach because it deemed it more precise, technical, and more in line with the international requirement of specificity.76 This approach was confirmed by the Supreme Court Chamber (SCC) and reiterated by the Trial Chamber in Case 002/02 where rape was defined within forced marriage.77
§3. The inclusion of causing someone else to be raped as established in Češić
The prosecution in Prosecutor v. Češić adopted a slightly different definition of rape. The plea agreement stated that it must be proved that “the accused caused the victim(s) to be sexually penetrated without their consent and that the accused intended that a sexual penetration occurred”.78 The Kunarac definition explicitly requires that the perpetrator penetrates the victim. The prosecution in Češić amended the first element of this definition by including the situation in which the perpetrator caused someone else to be raped.79 The Trial Chamber convicted Češić for rape as a CaH,80 and thereby determined that an act of a sexual nature can constitute rape even when the perpetrator is not part of the sexual act itself.81 This amendment includes the situation of forced rape between two male victims as long as the perpetrator caused the penetration. Nevertheless, it still excludes the situation in which the perpetrator forces a male victim to penetrate him/her, because the definition requires that the victim is penetrated. This definition was not upheld in subsequent judgements.82
73 Brima et al. (Judgement) (n 72) para 693.
74Prosecutor v. Taylor (Judgement) SCSL-03-01-T, Trial Chamber II (18 May 2012) para 415. 75 Case 001 (Judgement) 001/18-07-2007/ECCC/TC, Trial Chamber (26 July 2010) para 362. 76 Ibid footnote 666.
77 Case 001 (Appeals Judgement) 001/18-07-2007-ECCC/SC, Supreme Court Chamber (3 February 2012) para 208; Case 002/02 (Judgement) (n 61) para 731.
78 Prosecutor v. Češić (Plea Agreement) IT-95-10/1-PT (28 October 2003) para 5. 79 Ibid.
80 Prosecutor v. Češić (Sentencing Judgement) IT-95-10/1-S, Trial Chamber I (11 March 2004) para 107. 81 Isaac, (n 8) 875.
18 §4. Towards a male-inclusive definition of rape
As mentioned before, the ICC’s EoC provides a gender-neutral definition of rape as a CaH and as a war crime.83 This definition has been (partly) used before the SCSL and the ICC. In Prosecutor v.
Sesay et al., also known as the Revolutionary United Front case (RUF case), the Trial Chamber
defined rape as “the invasion of the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the accused with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.”84 This definition includes the situations in which a perpetrator uses a finger to effect penetration or when a male victim is forced to penetrate the perpetrator.85 Even though the actus reus is identical to the one in the ICC’s EoC,86 the Trial Chamber followed the AFRC and Taylor cases for the mens rea, focussing on non-consent.87
This ICC’s EoC definition was further upheld before the ICC in Prosecutor v. Katanga.88 The Trial
Chamber considered that it is not required that the perpetrator engages in the act of penetration. It found that rape includes the situation in which the perpetrator is penetrated as long as the perpetrator caused or prompted the penetration.89 In Prosecutor v. Bemba,90 the Trial Chamber also maintained this definition of rape.91 It emphasized that the concept of ‘invasion’ was intended to be broad enough to be gender-neutral and that the definition also includes forced fellatio.92
SECTION II. DEFINING SEXUAL SLAVERY
The crime of sexual slavery was not specifically named as a prohibited act until the adoption of the SCSL Statute and the RS.93 The ICC’s EoC was the first legal instrument to define sexual slavery as
83 ICC’s EoC (n 25) Article 7 (1)(g)-1, 8 (2)(b)(xxii)-1, and 8 (2)(e)(vi)-1.
84 Prosecutor v. Sesay et al. (Judgement) SCSL-04-15-T, Trial Chamber I (2 March 2009) para 145.
85 It is not clear whether the term ‘object’ in the Taylor and AFRC definition includes a body part such as a finger, unlike
the RUF definition which refers to any other part of the body: Taylor (Judgement) (n 74) para 415; Sesay et al. (Judgement) (n 84) para 145; Brima et al. (Judgement) (n 72) para 693.
86 ICC’s EoC (n 25) Article 7(1)(g)-1, 8 (2)(b)(xxii)-1, and 8 (2)(e)(v). 87 Sesay et al. (Judgement) (n 84) paras 145-150.
88 Prosecutor v. Katanga (Judgement) ICC-01/04-01/07, Trial Chamber II (7 March 2014) paras 962-963.
89 Ibid. However, the accused was found not guilty with regard to rape as a CaH and as a war crime: Katanga (Judgement)
(n 88) 659.
90 Prosecutor v. Bemba (Judgement) ICC-01/05-01/08-3343, Trial Chamber III (21 March 2016). 91 Ibid para 99.
92 Ibid paras 100-101. The Trial Chamber convicted Bemba for rape as a CaH and war crime, but this was reversed by the
Appeals Chamber: Bemba (Judgement) (n 90) 364; Prosecutor v. Bemba (Appeals Judgement) ICC-01/05-01/08-A, Appeals Chamber (8 June 2018) paras 196-198.
93 Valerie Oosterveld, ‘Evaluating the Special Court for Sierra Leone’s Gender Jurisprudence’ in Charles Chernor Jalloh, The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law (Cambridge University Press 2013) 234, 240.
19 a CaH and as a war crime in a gender-neutral manner.94 This definition can be recognized in the case law of the ICTY, SCSL, and ICC.
Even though sexual slavery was not mentioned in the ICTY Statute, the considerations of the Trial and Appeals Chamber in the Kunarac case were precedent-setting with regard to the crime of enslavement for sexual purposes. The prosecutor charged the accused with enslavement, specifying that the enslavement was done for sexual purposes.95 The Trial Chamber subsequently defined the actus reus of enslavement for sexual purposes as “the exercise of any or all of the powers attaching to the right of ownership over a person.”96 This is identical to the first part of the actus reus of sexual slavery in the ICC’s EoC.97 The Appeals Chamber in Kunarac also added that enslavement based on
sexual exploitation constitutes a distinct offence from that of rape.98
The first conviction for sexual slavery as a CaH took place before the SCSL in the RUF case.99 The
second conviction followed in the Taylor case and it was also discussed in the AFRC case.100 A similar approach to defining sexual slavery was adopted in all three cases, mostly consistent with the ICC’s EoC definition: “the perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, […] and caused such person or persons to engage in one or more acts of a sexual nature.”101 This actus reus of sexual slavery thus contains two aspects. First, there are the powers attached to the right of ownership, which are non-exhaustive.102 The Trial Chamber also found that payment or exchange, physical confinement, and non-consent are not required.103 Second, the enslavement must involve sexual acts.104
94 ICC’s EoC (n 25) Articles 7(1)(g)-2, 8(2)(b)(xxii)-2, and 8(2)(e)(vi)-2.
95 Valerie Oosterveld, ‘Sexual Slavery and the International Criminal Court: Advancing International Law’ [2004]
Michigan Journal of International Law, 605, 647.
96Kunarac et al. (Judgement) (n 68) paras 539-542.
97 ICC’s EoC (n 25) Articles 7(1)(g)-2 (1) 8(2)(b)(xxii)-2 (1), and 8(2)(e)(vi)-2 (1). 98 Kunarac et al. (Appeals Judgement) (n 71) para 186.
99 Valerie Oosterveld, ‘The Special Court for Sierra Leone’s Consideration of Gender-based Violence: Contributing to
Transitional Justice?’ [2009] Human Rights Review, 10, 81.
100 Brima et al. (Judgement) (n 72) paras 696-714; Oosterveld 2009 (n 99) 239.
101 ICC’s EoC (n 25) Articles 7 (1)(g)-2, 8 (2)(b)(xxii)-2, and 8 (2)(e)(vi)-2; Brima et al. (Judgement) (n 72) para 708; Sesay et al. (Judgement) (n 84) para 158; Taylor (Judgement) (n 74) para 418.
102 Brima et al. (Judgement) (n 72) para 709; Sesay et al. (Judgement) (n 84) para 160.
103 Brima et al. (Judgement) (n 72) para 709; Sesay et al. (Judgement) (n 84) para 161 and 163; Taylor (Judgement) (n
74) para 420.
20 Even though sexual slavery is explicitly mentioned in the RS, there is not much substantive case law from the ICC on it to date.105 In Prosecutor v. Katanga and Chui, the Pre-Trial Chamber (PTC) confirmed the charge of sexual slavery as a particular form of enslavement.106 It upheld the ICC’s EoC definition and added that sexual slavery includes limitations on the victim’s autonomy, freedom of movement, and power.107 The PTC also found that the restriction placed on a person’s ability to decide matters relating to his/her sexual activity is a particular parameter of sexual slavery.108
SECTION IV. DEFINING FORCED MARRIAGE
None of the legal instruments of any ICCT mentions the act of forced marriage.109 Although the ICTR has considered factual circumstances of forced marriage,110 the SCSL was the first hybrid criminal court to convict individuals for it.111 In the Sierra Leone conflict, civilian women and girls were
commonly abducted, usually raped, and forced to marry a rebel. This ‘marriage’ included domestic servitude and providing sexual services.112 Before the SCSL, two lines of reasoning emerged with regard to the crime of forced marriage: forced marriage conflated with sexual slavery and forced marriage as the CaH of OIA. This last line of reasoning was also upheld before the ECCC and the ICC.
§1. Forced marriage conflated with sexual slavery
Despite the charges of forced marriage as the CaH of OIA, the Trial Chamber in the AFRC case recharacterized the conduct as sexual slavery. It found that the relationship between the perpetrators and their wives was one of ownership and the use of the term ‘wife’ was not to assume a marital status with the victim, but to exercise ownership over her.113 The Trial Chamber thus concluded that the evidence presented by the prosecution was completely subsumed by sexual slavery and dismissed
105 Melanie O’Brien, ‘Don’t kill them, let’s choose them as wives: the development of the crimes of forced marriage,
sexual slavery and enforced prostitution in international criminal law’ [2016] The International Journal of Human Rights, 386, 394.
106 Prosecutor v. Katanga and Chui (Confirmation of Charges) ICC-01/04-01/07, Pre-Trial Chamber (30 September 2008)
para 430.
107 Katanga and Chui (Confirmation of Charges) (n 106) para 432.
108 Ibid. Both Katanga and Chui were acquitted for sexual slavery: Katanga (Judgement) (n 88) 659; Prosecutor v. Chui
(Judgement) ICC-01/04-02/12, Trial Chamber II (18 December 2012) 197.
109 Iris Haenen, The Criminalisation of forced marriage in Dutch, English and international criminal law (Intersentia,
2014) 1, 263.
110 Prosecutor v. Gacumbitsi (Judgement) ICTR-01-64-T, Trial Chamber (17 June 2004) para 204; Muhimana
(Judgement) (n 8) paras 307-323.
111 Oosterveld 2013 (n 93) 244.
112 O’Brien (n 105) 389; Haenen (n 109) 330. 113 Brima et al. (Judgement) (n 72) para 711.
21 the charges of forced marriage.114 Even though forced marriage was not charged in the Taylor case, the prosecutor did bring evidence under charges related to sexual violence.115 The Trial Chamber stated that the forced conjugal association imposed on the victims, which involved both sexual slavery and forced labour, should not be called ‘forced marriage’, because it cannot be understood as marriage in the universally understood sense of a consensual union.116 It found that the elements of sexual slavery were satisfied because the perpetrators exercised the powers attaching to the right of ownership over their ‘bush wives’ and imposed on them a deprivation of liberty, causing them to engage in both sexual and non-sexual acts.117 The Trial Chamber concluded that these acts are best described as conjugal slavery, which is not a new crime but a distinct form of sexual slavery with the additional descriptive component of forced conjugal labour.118
Moreover, the ICC has also conflated forced marriage with sexual slavery.119 In Prosecutor v.
Lubanga, the prosecutor included evidence of child soldiers, which were not limited to children taking
part in hostilities but also included girls specifically recruited for purposes of sex and forced marriage.120 The Trial Chamber characterized these acts of forced marriage as sexual slavery.121 In
Prosecutor v. Katanga, evidence of forced marriage was introduced early in the case. However, the
PTC used the evidence as proof for sexual slavery and found that sexual slavery includes the situations where women and girls are forced into marriage, domestic servitude, or other forced labour involving compulsory sexual activity.122 The Trial Chamber followed the PTC in this approach.123
§2. Forced marriage as the crime against humanity of other inhumane acts
The second line of reasoning with regard to forced marriage is the qualification as the CaH of OIA, which was first brought forward by the prosecutor in the AFRC case. He defined forced marriage as “words or other conduct intended to confer a status of marriage by force, threat of force, or coercion
114 Brima et al. (Judgement) (n 72) paras 711-714. 115 Taylor (Judgement) (n 74) para 422.
116 Ibid paras 425 and 427. 117 Ibid paras 426-427. 118 Ibid paras 428-430.
119 Annie Bunting and Izevbuwa Kehinde Ikhimiukor, ‘The Expressive Nature of Law: What We Learn from Conjugal
Slavery to Forced Marriage in International Criminal Law’ [2018] International Criminal Law Review, 331, 346.
120 Prosecutor v. Lubanga (Prosecutor’s Closing Brief) ICC-01/04-01/06 (1 June 2011) para 139; Prosecutor v. Lubanga
(Judgement) ICC-01/04-01/06, Trial Chamber I (14 March 2012) paras 574, 599 and 629.
121 However, since the crime of sexual slavery was not charged, the Trial Chamber could not base its decision on the
evidence of sexual slavery: Lubanga (Judgement) (n 120) paras 36 and 629.
122 Katanga and Chui (Confirmation of Charges) (n 106) para 431. 123 Katanga (Judgement) (n 88) paras 958-960.
22 […].”124 Even though the Trial Chamber conflated the evidence of forced marriage with sexual
slavery, the Appeals Chamber strongly disagreed and defined forced marriage as “a situation in which the perpetrator through his words or conduct […] compels a person by force, threat of force, or coercion to serve as a conjugal partner […].”125 The Appeals Chamber qualified forced marriage as
the CaH of OIA, but entered no new convictions.126 The Trial Chamber in the RUF case upheld this classification of forced marriage, defining the actus reus as “the imposition of forced conjugal association.”127
During the Khmer Rouge in Cambodia mass wedding ceremonies were conducted in coercive circumstances. These forced marriages differed significantly from those in Sierra Leone. In Cambodia, both spouses were victims and there was not always a forced sexual component to the marriage.128 In the Closing Order of Case 002 before the ECCC, the Co-Investigating Judges followed
the precedent set by the SCSL without further explanation.129 They held that the victims were forced to enter into conjugal relationships in coercive circumstances.130 After its severance in 2011, the Trial
Chamber added that forced marriage caused serious mental or physical suffering or injury, or constituted a serious attack on the human dignity of the victims.131 Therefore, forced marriage amounted to the CaH of OIA.132 The ECCC case law has not added much to the definition of forced marriage adopted by the SCSL, even though the Co-Investigating Judges did acknowledge that forced marriage could include imprisonment, enslavement, torture, and forced pregnancy.133
This definition of forced marriage was also upheld before the ICC in Prosecutor v. Ongwen.134 The PTC considered whether the practice of forcing women to serve as conjugal partners by the Lord Resistance Army in Uganda constituted the CaH of OIA through forced marriage.135 It defined forced
124 Brima et al. (Judgement) (n 72) para 701.
125 Prosecutor v. Brima et al. (Appeals Judgement) SCSL-04-16-A, Appeals Chamber (22 February 2008) para 196. 126 Brima et al. (Appeals Judgement) (n 125) paras 199-202. The Appeals Chamber was convinced that the recognition
of forced marriage as criminal and as the CaH of OIA adequately reflects society’s disapproval of this conduct: Brima et al. (Appeals Judgement) (n 125) para 202.
127 Sesay et al. (Judgement) (n 84) paras 1295 and 2306. This was also upheld in appeal: Prosecutor v. Sesay et al.
(Appeals Judgement) SCSL-04-15-A, Appeals Chamber (26 October 2009) paras 740, 861 and 972.
128 O’Brien (n 105) 390; Haenen (n 109) 331.
129 Brima et al. (Judgement) (n 72) para 701; Sesay et al. (Judgement) (n 84) paras 168 and 1461; Brima et al. (Appeals
Judgement) (n 125) paras 185-186, 199-202.
130 Case 002 (Closing Order) (n 59) para 1433. 131 Case 002/02 (Judgement) (n 61) para 3691. 132 Ibid para 3694.
133 Valerie Oosterveld and Patricia Viseur Sellers, ‘Issues of Sexual and Gender-Based violence at the ECCC’ in Simon
M. Meisenberg and Ignaz Stegmiller, The Extraordinary Chamber in the Courts of Cambodia: Assessing their Contribution to International Criminal Law (TMC Asser Press 2016) 321, 332.
134 Prosecutor v. Ongwen (Confirmation of Charges) ICC-02/04-01/15, ICC Pre-Trial (23 March 2016) para 88. 135 Ibid para 88; Bunting (n 119) 334.
23 marriage as “the imposition, disregarding the victim’s will, of duties associated with marriage with the consequent social stigma.”136 The PTC found that the imposition of marriage on the victim constitutes the central element of the crime. Moreover, it added that forced marriage has an exclusive nature and it causes separate and additional harm to its victims in comparison with those of sexual slavery.137 Finally, the PTC also recognized that forced marriage may cause great suffering and could be of a similar character to the enumerated CaH.138
Even though the factual situations in Sierra Leone, Cambodia, and Uganda differed, the definitions adopted for forced marriage as the CaH of OIA followed the same line of gender-neutral reasoning. However, it must be kept in mind that both the situation in Sierra Leone and Uganda included highly gendered roles. The victims of forced marriage in these cases were referred to as ‘bush wives’ or ‘women forced to serve as conjugal partners’.139 In Sierra Leone, these bush wives were expected to
provide sex on demand, domestic labour, childbearing, and childcare, whereas the husband was to provide food, clothing, and protection.140 This patriarchal understanding of marriage should not be
the only interpretation of forced marriage in ICL. It must be possible to apply the crime of forced marriage in a gender-neutral way to capture the situation in Cambodia where both the wife and the husband were forcibly married. Other situations where two women or two men are forcibly married, where both the victim and the perpetrator are the same sex, or where the perpetrator is female and the victim male should also be covered by the definition of forced marriage.141
SECTION V. DEFINING SEXUAL VIOLENCE
The term sexual violence was first defined by the ICTR and later confirmed by the ICTY as “any act of a sexual nature which is committed on a person under circumstances which are coercive.”142 Both courts emphasized that sexual violence is not limited to the physical invasion of the human body and thus has a broad nature. It may include acts that do not involve penetration or even physical contact. For example, the situation in which a student was ordered to undress herself and do gymnastics naked in the public courtyard, in front of a crowd, constituted sexual violence.143 The Appeals Chamber in
Prosecutor v. Ðordevic added that often the parts of the body commonly associated with sexuality
136 Ongwen (Confirmation of Charges) (n 134) para 93. 137 Ibid para 94.
138 Ibid paras 89-91.
139 Sesay et al. (Judgement) (n 84) para 1295; Ongwen (Confirmation of Charges) (n 134) para 88. 140 Brima et al. (Appeals Judgement) (n 125) para 190.
141 Oosterveld 2013 (n 93) 250-251.
142Akayesu (Judgement) (n 48) 688; Kvočka (Judgement) (n 71) para 180. 143Akayesu (Judgement) (n 48) para 688.
24 are targeted or involved.144 Both the ICTY and the ICTR have provided examples to determine what kind of violence qualifies as sexual, such as forced public nudity,145 sexual mutilation,146 and forced abortion.147 This definition of sexual violence is in line with the gender-neutral ICC’s EoC definition. The ICC has not further elaborated on this definition in its case law. Even though the prosecution charged the crime of any other form of sexual violence in both the Bemba and Kenyatta case, the PTC left it out or recharacterized it, as will be discussed in the third chapter.148
SECTION VI. CONCLUSION
It can be concluded that sexual slavery, forced marriage, and any other form of sexual violence are defined in a gender-neutral manner, allowing the prosecution of these crimes against male victims. However, the same cannot be said for the different definitions of rape. The first definition of rape in
Akayesu is gender-neutral, but because of its broad scope there is a risk of overinclusion of consensual
sexual relations or non-rape violations within international criminal prosecutions.149 The Furundžija and Kunarac definitions are more narrow, but require that the perpetrator penetrates the victim and therefore they exclude the situation of forced penetration between two victims. The amendment in
Češić picked up on this defect and broadened the definition by including the situation where the
perpetrator caused someone else to be penetrated. This amendment benefits male victims of rape, because often male victims are forced to penetrate each other.150 Finally, the ICC’s EoC adopted a gender-neutral and specific definition that also includes the situation in which a male victim is forced to use his penis for vaginal, anal, or oral penetration of the perpetrator, whether male or female.151 Moreover, the Akayesu and ICC’s EoC definitions both allow the prosecution of SVMB, while the
Furundžija, Kunarac and Češić definitions only allow a more limited prosecution. For example, when
a male perpetrator penetrates a male victim, prosecution would be possible under all definitions. When a perpetrator forces two male victims to have sexual intercourse, this cannot be prosecuted under the Furundžija and Kunarac definition, while it could be prosecuted under the other definitions. 144 Prosecutor v. Ðordevic (Appeals Judgement) IT-05-87/1-A, Appeals Chamber (27 January 2014) para 852.
145Akayesu (Judgement) (n 48) para 697; Kvočka (Judgement) (n 71) para 180. 146 Niyitegeka (Judgement) (n 55) paras 456-467; Kvočka (Judgement) (n 71) para 180. 147 Kvočka (Judgement) (n 71) para 180.
148 Prosecutor v. Bemba (Decision on the Prosecutor’s Application for a Warrant of Arrest) ICC‐01/05‐01/08, Pre-Trial
Chamber III (10 June 2008) paras 40 and 63; Prosecutor v. Kenyatta (Confirmation of Charges) ICC-01/09-02/11-382-Red, Pre-Trial Chamber II (29 January 2012) paras 254 and 265.
149Akayesu (Judgement) (n 48) paras 598 and 686.
150 Prosecutor v. Tadić (Opinion and Judgement) IT-94-1-T, Trial Chamber (7 May 1997) paras 45, 194-195, 198 and
206; Delalić et al. (Judgement) (n 56) para 26; Češić (Sentencing Judgement) (n 80) paras 13-14 and 107; Sesay et al. (Judgement) (n 84) paras 1207-1208 and 1302; Prosecutor v. Stanišić and Župljanin (Judgement Volume 1) IT-08-91-T, Trial Chamber II (27 March 2013) para 1599.
25 Finally, when a perpetrator forces a male victim to penetrate him/her, only the Akayesu and ICC’s EoC definition could lead to prosecution.
26 CHAPTER III. PROSECUTION OF SEXUAL VIOLENCE AGAINST MEN AND BOYS BEFORE INTERNATIONAL AND HYBRID CRIMINAL COURTS AND TRIBUNALS The previous chapter showed that not all definitions adopted by the ICCTs are gender-neutral. This inconsistency could influence the prosecution of SVMB. However, even when the legal framework allows the prosecution of SVMB, it is sometimes not prosecuted at all. If it is prosecuted, it is often under the label of torture or other inhuman treatment rather than rape, even when the facts could have led to such a legal qualification.152 In order to give a full overview of how SVMB is treated at the ICCTs, this thesis distinguished three categories of cases. First, there are the cases where acts of SVMB are reported but not charged. Second, there are cases where acts of SVMB are charged but not as such. Finally, there are cases where acts of SVMB are charged as such.153
SECTION I. SEXUAL VIOLENCE AGAINST MEN AND BOYS REPORTED BUT NOT CHARGED
During the Yugoslav war, SVMB was an integral part of the war-making itself.154 There have been
multiple testimonies, but the ICTY has not always effectively recognized these acts.155 An example is Prosecutor v. Brđanin, where forced rape between a male and female detainee was only qualified as a violation against the female victim.156 At the moment of this case, the Kunarac definition of rape was applicable before the ICTY. This definition requires the victim of rape to be penetrated, which is not the case for the male victim in this particular case. This could explain the lack of a charge for rape against the male victim.
Furthermore, sexual violence against women was recognized as fundamental to the victimization of Tutsis and moderate Hutus before the ICTR. However, little is known about the SVMB committed during the Rwandan genocide. Despite witness statements of genital mutilation and forced nudity of male victims, the prosecution failed to charge these acts.157 It is remarkable that at the time of these cases, the ICTR had adopted a definition of sexual violence. In previous cases, the Trial Chamber
152 Sara Ferro Ribeiro and Danaé van der Straten Ponthoz, International Protocol on the Documentation and Investigation of Sexual Violence in Conflict (2nd edition, March 2017) 274.
153 Sandesh Sivakumaran, ‘Lost in Translation: UN responses to sexual violence against men and boys in situations of
armed conflict’ [2010] International Review of the Red Cross, 259, 272.
154 Kapur (n 22) 8. 155 Ibid 17.
156 Prosecutor v. Brđanin (Judgement) IT-99-36-T, Trial Chamber II (1 September 2004) para 516.
157 Muhimana (Judgement) (n 8) paras 441, 444 and 448-450; Bagosora et al. (Judgement) (n 8) paras 976, 1908, 2220,
27 explicitly classified acts of forced nudity and genital mutilation as acts of sexual violence.158 It is therefore unclear why the prosecution neglected to include any charges for it.159
During the Sierra Leone war, there were also reported cases of SVMB, such as male rape, forced sexual intercourse, and forced incest between civilians.160 However, the prosecution restricted the indictments to sexual violence against female civilians, thereby ignoring the evidence of SVMB.161 The Trial Chamber in the Taylor case even refused the amendment of the indictment to include these charges at a later date.162 Almost all cases before the SCSL contained evidence of SVMB, but the Trial Chamber in both the AFRC and the Taylor case did not include this evidence.163 However, the Trial Chamber in the RUF case exposed the prosecutor’s failure and considered the evidence of SMBV, as will be discussed later.164 Both the AFRC and Taylor case upheld the Kunarac definition
of rape, which is not gender-neutral. This could be a possible explanation for the narrow indictments. Moreover, in the application for an arrest warrant for Jean-Pierre Bemba before the ICC, the prosecutor included the crime of any other form of sexual violence as a CaH and a war crime for reported acts of SVMB. However, the PTC excluded the charge as a CaH because it was of the opinion that the act of forced nudity was not of similar gravity to the other forms of sexual violence.165 In determining the gravity of forced nudity, the PTC did not seek the views of the victims or of the affected community despite the possible advantages. Including their views could render the assessment culturally sensitive, alert judges to unseen aggravating factors, and involve victims and survivors in the justice process.166 In addition, the PTC acknowledged that the arrest warrant already encompassed outrages on personal dignity as a war crime and found it redundant to include the charge of any other form of sexual violence as a war crime.167 Again, the PTC did not take into consideration whether the victims or survivors had obtained satisfaction from the court’s recognition of the sexual
158Akayesu (Judgement) (n 48) paras 688 and 697; Niyitegeka (Judgement) (n 55) paras 462-466.
159 Muhimana (Judgement) (n 8) paras 441, 444 and 448-450; Bagosora et al. (Judgement) (n 8) paras 976, 1908, 2220,
2224 and 2374.
160 Human Rights Watch, ‘We’ll Kill You If You Cry: Sexual Violence in the Sierra Leone Conflict’ (January 2003) 1,
42.
161 Prosecutor v. Brima et al. (Further Amended Consolidated Indictment) SCSL-04-16-PT (18 February 2005) paras
51-57; Prosecutor v. Sesay et al. (Corrected Amended Consolidated Indictment) SCSL-04-15-PT (2 August 2006) para 5460; Prosecutor v. Taylor (Prosecution’s Second Amended Indictment) SCSL-03-01-PT (29 May 2007) paras 14-17.
162 Prosecutor v. Taylor (Reasoned Majority Decision on Prosecution Motion for a Ruling on the Admissibility of
Evidence) (23 May 2005) paras 17 and 19; Taylor (Judgement) (n 74) paras 124-134.
163 Brima et al. (Judgement) (n 72) paras 966-972; Taylor (Judgement) (n 74) paras 124-134. 164 Sesay et al. (Judgement) (n 84) paras 1303 and 1308.
165 Bemba (Arrest Warrant) (n 148) paras 40 and 63. 166 Grey (n 34) 278.
28 character of the violence.168 After the PTC also declined the charge of outrages of personal dignity, the facts of forced nudity were used to prove the element of force or coercion with regard to the crime of rape.169 The PTC acknowledged that some of these facts were not captured by the charges of rape, but these facts were not clearly set out in the amended confirmation of charges so considering them would infringe upon the rights of the defence.170 The PTC stripped the prosecutor of the possibility to properly classify the acts of forced nudity as any other form of sexual violence, with the consequence that the acts were not charged at all.171
SECTION II. SEXUAL VIOLENCE AGAINST MEN AND BOYS CHARGED BUT NOT AS SUCH
The ICCTs have been confronted with testimonies of forced fellatio, genital mutilation and beatings, threats of sexual mutilation, and other forced sexual acts against men.172 However, these acts of
SVMB have not been consistently and accurately labelled and charged as such, thus obscuring their sexual nature and perpetuating the stereotype that sexual violence only affects women and girls.173
This way of charging does not reflect the nature and degree of seriousness of the committed violence.174 As Zawati and Doherty argue, distinct gender-based crimes merit distinct charges, thus SVMB should be charged as such.175 This section first discusses cases where acts that could fall under the definition of rape were not charged as rape. Likewise, the second paragraph examines cases where acts that could be defined as sexual violence were not charged as such.
§1. Acts of male rape not charged as such
Before the ICTY there were multiple cases in which forced fellatio was charged, but not as rape or even sexual violence. A first example is Prosecutor v. Tadić, where the accused was found guilty of
168 Grey (n 34) 278.
169 Prosecutor v. Bemba (Confirmation of Charges) ICC-01/05-01/08, Pre-Trial Chamber II (15 June 2009) para 310. 170 Ibid para 311; Grey (n 34) 278.
171 The prosecutor could amend the charges but the permission of the PTC is needed according to Article 61(9) RS, which
is not likely to happen because of the PTC’s previous reasoning. The confirmation of charges sets the scope of the trial and binds the Trial Chamber and therefore the PTC made it impossible for the prosecutor to include this evidence: International Criminal Court, ‘Chambers Practice Manual’ (May 2017) 16.
172 Prosecutor v. Mucić et al. (Initial Indictment) IT-96-21 (19 March 1996); Prosecutor v. Tadić (Second Amended
Indictment) IT-94-1-T (May 7, 1997); Prosecutor v. Todorović (Second Amended Indictment) IT-95-9/1 (19 November 1998); Prosecutor v. Simić (Fifth Amended Indictment) IT-95-9/2 (30 May 2002); Prosecutor v. Češić (Third Amended Indictment) IT-95-10/1 (26 November 2002); Sesay et al. (Judgement) (n 84); Prosecutor v. Stanišić and Župljanin (Second Amended Indictment) IT-08-91 (6 October 2004); Case 002/02 (Judgement) (n 61).
173 Oosterveld 2014 (n 4) 115. 174 Zawati (n 10) 68.
