International Human Rights Law Clinic

Enhancing the Legal Framework for Conflict-Related Sexual Violence Against Men

Professor Laurel E. FletcherDirector, International Human Rights Law Clinic

July 25, 2013

How Robust Are The Legal Frameworks for Accountability for Sexual Violence Against

Men? How does the current international

criminal law framework apply to conflict-related sexual violence against men?

What does the Ugandan example suggest about gaps in domestic legal frameworks with respect to accountability for these crimes?

What action should be taken to strengthen the international legal response to sexual violence against men?

A Congolese rape victim, currently residing in Uganda

Refugee Law Project Working Paper No. 24

Review of relevant

•International criminal law•Human rights law & mechanisms

Analysis of Ugandan

•Incorporation of Rome Statute•Intersection with amnesty law•Relevant penal code provisions

Legal options for redress

Application of int’l law & standards to domestic law reform agenda

International Criminal Law and the Prosecution of Sexual Violence

Contribution of Ad Hoc Tribunals

The International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) became the main tribunals responsible for the contemporary evolution of jurisprudence on rape and sexual violence.

These tribunals clarified international norms prohibiting rape and sexual violence.

They established rape and sexual violence as constituent elements of genocide, crimes against humanity, and war crimes, and used gender-neutral language to describe the victims of sexual violence.

Rome Statute: Broad and Gender-Inclusive

The Rome Statute expanded the expressly enumerated sexual violence crimes in international criminal law, adding the following to the list of war crimes and crimes against humanity:• sexual slavery• enforced prostitution• forced pregnancy• enforced sterilization• other forms of SV of equivalent gravity (Rome Statute art. 7(1)(g))

Rome Statute acknowledged that sexual violence can be committed against men and women: “the word invasion is intended to be broad enough to be gender-neutral.”

Rape and sexual violence are defined by the ICC to include coercion as an element, which can be established by some degree of force, threat, or oppression.

Prosecutions for Sexual Violence Against Men in the Former

YugoslaviaIn Prosecutor v. Milosevic, the ICTY prosecutor charged acts of forced fellatio, forced incest, and gang rape of men as persecution as a crime against humanity.

In Prosecutor v. Tadic, the ICTY prosecutor charged the defendant with persecution and inhumane acts as crimes against humanity, as well as torture or inhuman treatment as a war crime, but NOT with rape as a crime against humanity.

In Prosecutor v. Cesic, the accused forced two Muslim brothers to perform fellatio on each other. For that incident, Cesic was convicted of rape as a crime against humanity, as well as humiliating and degrading treatment as a war crime.

Omarska Camp, Bosnia and Herzegovina

Prosecutions for Sexual Violence Against Men at the International

Criminal Court In Prosecutor v. Kenyatta, the OTP found that there were reasonable grounds to believe that the defendants were responsible for murder, 39 reported cases of rape, and at least 6 cases of forcible circumcision among others.

Chief Prosecutor Ocampo moved to charge the incidents of forced circumcision and sexual mutilation as “other forms of sexual violence” under Article 7(1)(g) of the Rome Statute.

The ICC judges disagreed: “not every act of violence which targets part of the body commonly associated with sexuality should be considered an act of sexual violence.” They categorized the acts as “other inhumane acts” under Article 7(1)(k).

Kenya’s new President Uhuru Kenyatta (L) and Cabinet Secretary Francis Muthaura (R) at the ICC

Barriers to Accountability for Sexual Violence Against Men in Domestic

LawDomestic Incorporation of Rome Statute May Not Be Sufficient Legal Framework.

Gaps in Domestic Law Include:

• Gender-exclusive Definitions of Sexual Violence Crimes

• Consent Test• Criminalization of Sodomy

Ugandan ExampleDefinition of Rape (UPC § 123)

Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation... or by fear of bodily harm... commits the felony termed rape.

Comparing Ugandan Law with International Criminal Law

Ugandan Law International Law

Rape is the “unlawful carnal knowledge of a woman or a girl…”

Gender-exclusive provisions

Rape is the invasion of “the body of a person by conduct resulting in penetration of … any part of the body of the victim…”

Gender-inclusive provisions

Prosecutor has to prove that the act occurred “without her consent”

Consent Test

Prosecutor has to prove that “the invasion was committed by force, or by the threat of force or coercion… caused by duress, detention … or abuse of power”

Coercion Test

Criminalization of Sodomy and Chilling Effect on Reporting Sexual

ViolenceUPC §145: Unnatural Offences.

Any person who—(a) has carnal knowledge of any person against the

order of nature;

(b) has carnal knowledge of an animal; or

(c) permits a male person to have carnal knowledge of him or her against the order of nature, commits an offence and is liable to imprisonment for life.

Addressing Gaps in Legal Frameworks What Processes for Domestic Legal Reform Should Be

Promoted?• Role for UN, states, civil society, academics?

How Can We Improve Implementation of Legal Frameworks?

• Training? For whom?• Integration of int’l (ICC) and domestic investigations• Need for domestic witness protection and support

How Should Criminalization of Sodomy and Homophobia Be (Re)Framed: An Access to Justice Issue?• (Re)Engagement from perspective of conflict-related abuse

Redress for Victims • Holistic approach needed to provide justice for all victims.

Discussion