The Africa Union's resolution to collectively support a strategy to withdraw from the ICC looks...
South Africa’s Truth and Reconciliation Commission (TRC) sought to grapple with the legacy of over 40 years of apartheid rule, a period in which the National Party brutally enforced segregation. It was widely known that rape and other forms of sexual violence against women were a common apartheid-era practice, but when the TRC solicited testimony from victims of sexual violence, the demographics contradicted conventional wisdom: men testified about sexual violence in higher numbers than women did. Their testimony pointed to a state that had sexually violated men and women alike, and revealed hundreds of instances of men enduring genital electric shocks, rape, forced nudity and other hideous abuses targeting their sexuality.
The findings presented the TRC with an important opportunity to address the sexual dimensions of men’s suffering and set a precedent for future truth commissions. However, it failed in this regard: it categorized sexual violations against men as “torture,” and only officially recognized the physical nature of the crimes, not their sexual components. This failure had cascading effects: male victims of sexual violence were not able to testify in closed hearings, as their female counterparts were, nor did the commission offer a detailed analysis of sexual violence against men, as it did for similar crimes against women.
Given the outsized impact the TRC would have in shaping the field of transitional justice in the years to come, these shortcomings would prove to be particularly problematic. Male victims continue to struggle for recognition and redress in contexts around the globe today and the mishandling of sexual violations against men and boys contributes to widespread underreporting.
“Unless the full gamut of sexual violations committed against men and boys is properly recognized, recorded, and analyzed, opportunities for justice and prevention will remain few and far between,” said Kelli Muddell, Director of ICTJ’s Gender Justice Program.
A new report issued by ICTJ, titled “When No One Calls It Rape: The Tough Truth About Sexual Violence Against Men and Boys in Transitional Contexts,” seeks to create such opportunities by providing recommendations to practitioners. It draws on a wide variety of contexts to assess best practices for truth-seeking bodies, criminal justice institutions, and reform initiatives.
“To date, there has been a lack of acknowledgement in the transitional justice field that this violence is gendered and so male victims have remained largely invisible even when measures took efforts to be gender-sensitive. This research seeks to highlight the gendered nature of these crimes and draw lessons from past experiences on how transitional justice can ensure that these victims are no longer silenced,” adds Muddell.
Among the many countries the paper explores are Cambodia and Kenya, where sexual violence against men and boys illustrates the critical importance of a more nuanced approach to justice. We take a closer look at the different kinds of sexual violence men and boys have been targeted for, and how transitional justice mechanisms dealt – or failed to deal – with those violations.
In Kenya, post-election violence in 2007-2008 reignited tribal divisions, including the clash between the Luo and Kikuyu tribes. During the conflict, sexual violence played a key role: Kikuyu men sought to display their masculine dominance by forcibly circumcising Luo counterparts. They did so because in Kikuyu culture, circumcision signifies the transition from boy to man, whereas Luo men do not practice circumcision. Thus, the act was a way for the Kikuyu perpetrators to – as they asserted – “make men of boys” and violate their victims’ cultural identity.
After the conflict, the ICC sought to investigate sexual violations committed in Kenya, and prosecutors cited forced circumcisions as one manifestation of these types of crimes. However, when the prosecutor moved to charge these acts as “other forms of sexual violence” under the Rome Statute, the Pre-Trial Chamber of the ICC ruled that the proper charge for the forced circumcisions fell under “other inhumane acts,” denying their sexual components. The Chamber insisted that “not every act of violence which targets part of the body commonly associated with sexuality should be considered an act of sexual violence.” However, it is difficult to conceive of such an attack that does not have a significant sexual impact and thereby not be of an inherently sexual nature.
“By obscuring the sexual aspects of these crimes, the ICC’s ruling could have several important consequences,” says Amrita Kapur, the report’s lead author. “Most immediately, victims who might deserve reparations allotted to survivors of sexual violence may be made ineligible for them if the violations they suffered are improperly categorized. It could also limit our understanding of the crimes committed during the conflict, preventing a comprehensive analysis.”
Furthermore, because of the ICC’s unique position as the only permanent international criminal institution, the ruling represents a major lost opportunity to set a legal precedent for the prosecution against males, Kapur stresses. Had the court properly categorized male victims, it would have encouraged other bodies to do the same.
During their brutal rule of Cambodia from 1975-1979 under Pol Pot, Khmer Rouge members killed as many as two million people. The regime also used sexual violence to impose its will, perpetrating a range of violations against men, including genital mutilation and amputation and forced marriages. They forced tens of thousands of men and women to marry in mass weddings, and then ensured that the marriages were consummated. The violations simultaneously undermined their victims’ physical and social integrity; by coercing their male victims to commit sexual violence, the Khmer Rouge disrupted established social positions, family relationships and communal bonds.
“Men and women were often violently coerced to enter forced marriages under the Khmer Rouge,” Muddell said. “What for many is a meaningful life event that shapes entire lives through family bonds, the raising of children and community support was effectively destroyed before it began. All of this had long-term psychological impacts on victims.”
The Extraordinary Chambers of the Court of Cambodia (ECCC) began hearing evidence on charges of forced marriages earlier this year. In dealing with the aftermath of the violations, the ECCC used gender-neutral language around these crimes, and did not specify women as the sole victims, paving the way for convictions on the basis of forcing men to marry and rape within the context of those forced marriages. The ECCC also admitted 779 civil parties under forced marriage, 247 of whom were men, which could provide an avenue for the recognition of male victims of forced marriage and rape within forced marriage.
“The ECCC represents a progressive and inclusive approach, with real potential to further develop international jurisprudence on gendered crimes, their diverse impacts on different types of victims, and ensure victims of forced marriage are appropriately acknowledged,” Kapur said.
Through the analysis of examples from a vast array of countries, ICTJ’s new report underlines the importance of a sound legal framework for identifying all victims of sexual violence. Beyond that, it also points to the need for increased consciousness of sexual victimhood at all levels of transitional justice processes. Truth-seeking bodies must provide special channels for male victims to provide statements and testify, and criminal justice actors must recognize acts of sexual violence against men and boys as separate from physical violations. Likewise, reparations programs must use gender-inclusive language in victim registration, and provide benefits that address the harms male victims suffer.
To ensure that government institutions will pursue accountability for sexual violence against men and boys, states must repeal laws that stigmatize male sexual victimhood, including laws against homosexuality.
“The past decades have seen an advancement in the recognition that sexual violence against women is a serious crime and transitional justice measures must make proactive efforts to ensure that these victims are acknowledged and included,” Muddell said. “It is past time that the same consideration be given to male victims of sexual violence so that justice can truly be achieved.”
PHOTO: A witness identified as 2-TCCP-232 testifies about forced marriages under Khmer Rouge rule during the trial of Nuon Chea and Khieu Samphan this August. (ECCC/Sok Heng Nhet)