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From Volume 10 (2017).

I. Introduction

Men and boys are targeted for sexual violence during armed conflict or other forms of mass atrocity, but this fact has received relatively little attention within the international community.1 The recent conflicts taking place in Syria and Libya provide stark illustrations of sexual violence directed against males. For example, the February 2013 report of the United Nations (UN)-appointed Independent International Commission of Inquiry on Syria examined numerous reports of sexual violence taking place during during the Syrian conflict in two distinct contexts: against women by government forces and affiliated militia during house searches and at checkpoints; and against men, boys, women and girls in detention centres as a means to extract information, humiliate and punish.3 Men and boys in detention have been raped, and had their genitals electrocuted with live wires or burned by cigarettes, lighters or melted plastic.4 As well, government forces used sexual violence as a method of coercion, by detaining and raping (or threatening to rape) male and female family members to force male relatives fighting with opposition armed groups to surrender themselves.5 The UN-appointed International Commission of Inquiry on Libya highlighted similar stories.6 Male and female victims were subjected to sexual violence by Qadhafi forces in detention centres to extract information about the opposition, humiliate and punish.7 As in Syria, the forms of male sexual violence included anal rape, rape with an instrument, electrocution of genitals and burning of genitals.8 These examples highlight the need for more focus within international criminal law on male-targeted sexual violence.9

This article explores the current state of understanding within international criminal law of sexual violence directed at men and boys, particularly as a crime against humanity or a war crime. It begins by examining how international criminal tribunals have approached maletargeted sexual violence to date, concluding that the tribunals have been uneven in their approach; even so, these cases have been helpful in creating the beginnings of a typology of male sexual violence. The article then turns to identifying three main gaps that must be addressed in order to improve the ability of international criminal tribunals – and, similarly, domestic courts prosecuting international crimes - to address this form of sexual violence.10 The first gap is an information gap: there is a dearth of systematic data on sexual violence directed against men and boys in armed conflict or atrocity. The result is that relatively little is known about the prevalence, patterns and effects of male sexual violence, and less attention is paid to the issue than should be the case, including in the field of international criminal law. The second gap can be referred to as a social gap. Men and boys may not feel able to speak about their experiences or, if they do, they may not describe themselves as victims of sexual violence. In addition, international investigators, prosecutors, counsel (whether for victims or defence) and judges may have difficulty in recognizing sexual violence directed against men, whether due to certain, perhaps unconscious, assumptions that only women and girls are the victims of sexual violence; lack of training (of themselves or of the individuals they speak to or who serve as witnesses); or assumptions that certain violence, like forced circumcision, castration, penile amputation or sexual mutilation, is best categorized more generically as torture, inhumane acts or cruel treatment. The third gap is a legal gap, which is twofold: a gap in overt recognition and a gap in classification. While rape has been defined in international criminal law in a gender-neutral way,11 there are other acts of sexual violence visited upon men and boys that are not explicitly named. This lack of overt recognition can be problematic because these acts must be prosecuted under other (broader, less descriptive) headings. When combined with the social gap, the result can be miscategorization. Sexual violence crimes directed at men and boys have been legally (re)classified as torture, cruel treatment or inhumane acts, thereby obscuring the sexual aspects of the harm done to the victims.

A solid understanding of sexual violence directed against men and boys is crucial for international criminal law. Under the principle of legality,12 it is important to clarify the contours of this type of sexual violence so that it can be clearly labeled as a crime.13 As well, a deeper understanding of this form of sexual violence will help international criminal law’s understanding of all forms of sexual violence, including sexual violence directed against women and girls. Sexual violence directed at men and boys is often intertwined with sexual violence committed against women and girls and is intimately linked to socially-constructed gender norms. In the context of international criminal law, increased attention to sexual violence targeted at men and boys will lead to more accurate explanations by prosecutors of the depth of victimization of individuals and communities. Therefore, this article ends by discussing what needs to be done in order to translate what is known about sexual violence targeted against men and boys into successful international prosecutions.