By Stephanie Lewis for the Global Justice Blog
Acts of sexual violence against both men and women have often been used as a military tactic during times of armed conflict. The Statute of the International Criminal Court is the first instrument in international criminal law that explicitly recognizes rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, persecution on the basis of gender, and other forms of sexual violence of comparable gravity as crimes against humanity when they are committed “as part of a widespread or systematic attack directed against any civilian population” and “pursuant to or in furtherance of a State or organizational policy to commit such an attack.” Except for forced pregnancy, these crimes of sexual violence are prohibited when they are committed against “any person,” not just women.
The most recent Sexual Violence in Armed Conflict (SVAC) dataset covers sexual violence during 129 conflicts active between 1989 and 2009 and the post-conflict periods immediately thereafter. The dataset focuses on actions conducted by armed actors, including active state militaries, pro-government militias (PGMs), and rebel groups. According to the SVAC dataset, 42% of state actors were reported as perpetrators of sexual violence at some point during the study period, whereas the study received reports of sexual violence conducted by only 24% of rebel groups and 17% of militias. These numbers, however, may be biased in reporting because state actors wear uniforms and are likely more recognizable than rebel groups.
Culturally, we tend to hear about rebel groups using acts of sexual violence to target women and girls during times of conflict. Perhaps the most recent prominent example is the kidnapping of 200 Nigerian schoolgirls by the rebel group Boko Haram. This gender-based violence may, in some aspects, be tactical. Women and young girls held in captivity by the group have reported being forced to cook and clean for the group and carry out operational tasks, such as luring government soldiers to areas where they may be targeted. While Boko Haram’s ideology does not specifically call for the level of violence we have seen against Christian women, this targeted victimization fits within the group’s strategy of terrorizing Christian communities and forcibly imposing the traditional gender norms found under Shariah law.
Unfortunately, it is highly difficult to account for the number of times acts of sexual violence have been committed due to underreporting and biases from analyzing the data. Victims will often be unwilling or unable to report sexual violence because of shame, a fear of stigmatization, a fear of retributive violence, and an inability to reach authorities. These crimes are particularly underreported when sexual violence is used by men against men. Men are often unwilling to discuss their victimization because they believe it is incompatible with their masculinity. Even if they are willing to discuss acts of sexual violence they have been subjected to, they may see it as simply beatings or torture instead of sexual violence. Furthermore, if they are unable to prove sexual violence, they could potentially be found guilty of consensually engaging in homosexual activity if it is a criminal offense in their nation.
All forms of trauma imposed on victims should be treated equally, and the international community cannot continue to neglect the individuals victimized through acts of sexual violence. While the international community has moved to eradicate the use of sexual violence during armed conflicts, more needs to be done. Research, as a whole, is generally lacking and provides an incomplete picture of the use of sexual violence, particularly with regard to its use against men and boys. Much of this underreporting is cultural, as both men and women face stigmatization, retaliation, and possible criminal charges for simply making a report. Individuals such as doctors, counselors, and humanitarian workers who assist in these war-torn areas of the world may not recognize signs of sexual violence – either because the acts themselves are not easily detectable or because the signs may also be categorized as abuse or torture.
The International Criminal Tribunal for the former Yugoslavia (ICTY) was the first international tribunal to bring explicit charges of wartime sexual violence, to define gender crimes such as rape and sexual enslavement under customary law, to enter convictions for rape as a form of torture, for sexual enslavement as a crime against humanity, and the second international tribunal to pass convictions for rape as a crime against humanity. Almost half of those convicted by the ICTY were found guilty of elements of crimes involving sexual violence. The ICTY also first advanced the notion that rape may be used as a form of genocide, and precedent that rape constitutes genocide was set by the International Criminal Tribunal for Rwanda in 1998.
We also need more and effective prosecution of these actions. It is a good sign that the ICC has classified acts of sexual violence as war crimes and crimes against humanity; such cases, however, can be difficult to prosecute. For example, Germain Katanga, a former Congolese warlord, led a militia in the early 2000s in a struggle for control over eastern regions of the Democratic Republic of Congo. In March 2014, the ICC found him guilty of murder and pillage but acquitted him under the Joint Criminal Enterprise on charges of rape and sexual slavery, even though his forces raped women and conscripted them as sex slaves during his reign. Though the Statute of the ICC explicitly states such actions are war crimes, Katanga’s case is just one example of how difficult it can be to prosecute war criminals for systematic actions of sexual violence. As the issue gains more attention within the international community, one can only hope more criminals will face prosecution for perpetrating acts of sexual violence and be convicted for those atrocities.
Stephanie Lewis is a JD/MPP Candidate, Class of 2016. Lewis’ entry to the GlobalJustinceBlog is part of an assignment for the course International Criminal Law, taught by Professor Wayne McCormack.
 Office of the Prosecutor. 2014. “Policy Paper on Sexual and Gender-Based Crimes.” International Criminal Court. http://www.icc-cpi.int/iccdocs/otp/OTP-Policy-Paper-on-Sexual-and-Gender-Based-Crimes–June-2014.pdf; See also Statute of the ICC §§ 7(1)(g), 8(b)(xxii), and 8(2)(e)(vi).
 Cohen, Dara Kay and Ragnhild Nordås. 2014. “Sexual Violence in Armed Conflict: Introducing the SVAC dataset, 1989–2009.” Journal of Peace Research 51(3): 418-428, 418-19. Retrieved from http://jpr.sagepub.com/content/51/3/418.
 Cohen 2014, p. 425.
 Id., fn. 15.
 Pearson, Elizbeth and Jacob Zenn. 2014. “Women, Gender, and the Evolving Tactics of Boko Haram.” Journal of Terrorism Research 5(1). Retrieved from http://ojs.st-andrews.ac.uk/index.php/jtr/article/view/828/707.
 Cohen 2014, p. 422.
 Sivakumaran, Sandesh. 2007. “Sexual Violence Against Men in Armed Conflict.” The European Journal of International Law 18(2):253-276, 255. DOI: 10.1093/ejil/chm013.
 Id., p. 266.
 “Crimes of Sexual Violence.” The International Criminal Tribunal for the former Yugoslavia. Last accessed September 8, 2014. Retrieved from http://www.icty.org/sid/10312.
 “Landmark Cases.” The International Criminal Tribunal for the former Yugoslavia. Last accessed September 8, 2014. Retrieved from http://www.icty.org/sid/10314.
 “Drawing a Line.” The Economist. June 14, 2014. Retrieved from http://www.economist.com.