Since Russia invaded Ukraine, numerous reports have shown the widespread use of sexual and gender-based violence (SGBV) against detained civilians and prisoners of war. A significant portion of this SGBV has been directed against men. While efforts for accountability for war crimes have been difficult, justice for male victims of SGBV may prove particularly challenging. International Criminal Law has long struggled to fully capture male victimization from sexual violence. This struggle goes back to the first cases in which SGBV was prosecuted. The ICTY touts its first case as the “first-ever trial for sexual violence against men.” However, this case failed to include charges of sexual violence against witnesses who were forced “to commit oral sexual acts on” another detainee. Because the International Criminal Court (ICC) has not successfully prosecuted SGBV against men, we examine the ICTY’s handling of SGBV, in particular the definition of rape and its importance in the Češić case. The Chamber’s skepticism of the rape charge against Češić and the Prosecution’s argument on why his actions constituted rape demonstrate how certain forms of male victimization are excluded from the understanding of rape. We then show how this understanding continues to obscure male victimization at the ICC and prevents the prosecution of acts in which men are forced to participate. We end by exploring what this means for situations like Ukraine’s in the future.
Understanding Male Victims of Sexual Violence
Many understandings of sexual violence during war and conflict in academic literature rely on essentialized notions of the sex of the perpetrator. These understandings and their view of the gender dynamics inherent in violence are flawed. However, these theories are prevalent; they are easily found and consumed. Conceptualizing sexual violence in war and conflict as a trauma that feminizes instead of an act that masculinizes the perpetrator alters how sexual violence in conflict is thought about and defined. Looking specifically at violence against men, the range of practices of sexual violence may include rape, gang rape, sexual slavery, enforced nudity and being forced to perform sexual acts with others which is commonly described as ‘being forced to rape.’ This description casts the male victim into the role of perpetrator even if an unwilling one. The scope of the problem for male victims in conflict zones is significant yet getting justice for men who have experienced this form of trauma proves a daunting task. This is because, despite the prevalence of the issue, conflict-related SGBV against men has largely remained peripheral to discussions on sexual violence.
The characteristics of wartime sexual violence against men can differ from those of sexual violence against women. This influences how we label the experiences – for example it is more likely for labels of mutilation and torture to be applied than other explicitly sexual terms. These incidences are often not classified as sexual violence. For example, , ultimately thrown out, Kenyatta case, the International Criminal Court categorized acts of forced circumcision and sexual mutilation against men as “other inhumane acts,” when they were men. Rape is both a physical act and a concept. The historical view of rape as a tool for male oppression of women overlooks how sexual violence also shapes men into gendered stereotypes and obscures the reality of male victims. Even though sexual violence against men is pervasive across contexts and causes significant and enduring harm to both victims and their communities, it has typically been ignored or considered as simply physical rather than sexual harm. Rape is both a physical act and a concept. The historical view of rape as a tool for male oppression of women overlooks how sexual violence also shapes men into gendered stereotypes and obscures the reality of male victims. Even though sexual violence against men is pervasive across contexts and causes significant and enduring harm to both victims and their communities, it has typically been ignored or considered as simply physical rather than sexual harm. Rape is both a physical act and a concept. The historical view of rape as a tool for male oppression of women overlooks how sexual violence also shapes men into gendered stereotypes and obscures the reality of male victims. Even though sexual violence against men is pervasive across contexts and causes significant and enduring harm to both victims and their communities, it has typically been ignored or considered as simply physical rather than sexual harm.
By considering the construction of masculinities and femininities, we can analyze agency and vulnerability as they pertain to perpetrators and victims regardless of gender identification. Any act of sexual violence reflects greater societal issues of gender construction connotes subjectivity and submission. The sex identities of those involved in an act of sexual violence is only relevant in so far as they are relevant in the mind of the perpetrator as part of their consideration of acting. The legal texts which have created international crimes have ingrained femininity and masculinity into the way war’s victims and perpetrators are understood and discussed. This process often fails victims by embracing problematic essentializations of gender norms.
ICTY’s Definition of Rape & Its Problems
The ICTY’s definition of rape comes from the Furundžija case which defined rape as:
(i) the sexual penetration, however slight:
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- 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;
(ii) by coercion or force or threat of force against the victim or a third person.
This definition, because it was developed based upon understandings of women as the victims of rape, contains two elements that are problematic for recognizing male victims. The first is the role of the perpetrator in the crime. As the definitions above highlight the actions that constitute rape must be done “by the perpetrator,” because there is the expectation that the perpetrator plays an intimate role in the acts. This, therefore, creates complications in scenarios where detainees are being forced to perform sexual acts on each other. The second is its focus on penetration. This creates complications in recognizing cases in which men have been forced to penetrate others.
The Češić Case
On October 8, 2003, Rano Češić pleaded guilty to all charges against him including rape for forcing “at gunpoint, Muslim detainees “A” and “B”…[to] perform sexual acts on each other.” Despite, the guilty plea, the presiding judge was hesitant to accept that Češić committed as opposed to ordered or instigated rape because of the importance of the perpetrator as an active participant in the ICTY’s definition of rape.
Despite their hesitance, the Trial Chamber eventually accepted the Prosecution’s reasoning that Češić committed rape because he “committed the crime by using the victims as a tool to commit the crime. By using one of the brothers to penetrate sexually [the] other brother, and both of them were used as a tool.” This, however, means when being forced to penetrate another, a man is not a victim, but rather a tool by which another is being victimized. This is due to the second problematic element of the definition of rape: the focus on penetration. Thus, in making each victim visible as having been raped, their victimization to other forms of sexual violence was lost and not prosecuted.
Conclusion and Implications for the ICC
The ICC’s definition of rape is similar to the ICTY’s. The ICC’s Element of Crimes defines rape as “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.” Despite the definitional similarity, the ICC seems to have succeeded in avoiding overemphasis on the perpetrator’s role in the act. This is clear in the Ntaganda case where detainees being forced to engage in sexual acts with each other was classified as rape. However, like the Češić case, the visibility of one victim came at the expense of another. In this case, “a male civilian detained in Kilo was made to penetrate…a co-detainee” and unlike his female co-detainee, he was not classified as a victim. Ntaganda was not prosecuted for “other form[s] of sexual violence of comparable gravity” despite the potential to be characterized as such. While not explicitly labeled as a tool in this case, the male civilian’s categorization as the instrument of penetration prevented his visibility as a victim. Because, like the ICTY, the ICC has a strong emphasis on penetration, the forced participation of men in sexual acts is an often-overlooked form of conflict-related SGBV. However, as experience from the Democratic Republic of Congo, the Former Yugoslavia, and other periods such as the Rape of Nanjing show, such victimization is a common occurrence. Until such time as the international conceptualization of rape changes, this type of SGBV against men will continue to be less visible and even ignored. Very few, if any, of the reports of SGBV by Russian troops in Ukraine include forcing men to engage in sexual acts with others. Is the lack of reports a true indication that this isn’t happening, or does its absence reflect its invisibility to legal understandings of victimization while common understanding often casts the male forced to participate into the role of unwilling perpetrator?
