The International Criminal Court Appeals Chamber Ruling in Ntaganda: an Opportunity to Improve Accountability for Sexual and Gender-based Crimes Against Men and Boys

• Publication year: 2019
• Citation: Vol. 47 No. 3

THE INTERNATIONAL CRIMINAL COURT APPEALS CHAMBER RULING IN NTAGANDA: AN OPPORTUNITY TO IMPROVE ACCOUNTABILITY FOR SEXUAL AND GENDER-BASED CRIMES AGAINST MEN AND BOYS

Elizabeth Modzeleski^*

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TABLE OF CONTENTS

I. INTRODUCTION....................................................................................701

II. THE PROBLEM OF SEXUAL AND GENDER-BASED INTERNATIONAL CRIMES..........................................................................................702

A. Defining the Phenomenon of Sexual and Gender-Based International Crimes Against Men and Boys.............703

1. "Sex" and "Gender" as Targets of Atrocity........703

a. "Sex" and Biology.........................................703
b. "Gender": The Absence or Presence of "Masculinities".............................................704

2. Contexts Within Which International Crimes May Occur....................................................................705

a. War Crimes: Armed Conflict Nexus Required .......................................................................705
b. Genocide and Crimes Against Humanity: No Armed Conflict Nexus Required....................706

B. History of Sexual and Gender-Based International Crimes........................................................................707

1. In General............................................................708
2. Against Men and Boys..........................................709

C. Contemporary Prevalence of Sexual and Gender-Based International Crimes Against Men and Boys.............711
D. The Tradition in International Criminal Law of Relative Inattention to Sexual and Gender-Based International Crimes Against Men and Boys...................................714

1. Traditional Linkage of Sexual Violence to Crimes Against Women and Girls....................................715

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2. Inclusion of Sexual Violence Against Men and Boys in Recent International Criminal Cases...............716

III. THE INTERNATIONAL CRIMINAL COURT CASE AGAINST NTAGANDA AND ACCOUNTABILITY FOR SEXUAL AND GENDER-BASED CRIMES .......................................................................................................717

A. Overview of the International Criminal Court............717
B. Key Aspects of the Rome Statute of the International Criminal Court...........................................................718

1. Crimes of Sexual Violence Within the Jurisdiction of the Court...............................................................718
2. Composition of the Court.....................................719

a. Role of the Prosecutor...................................719
b. Roles of the Pre-Trial, Trial, and Appeals Chambers.......................................................721

C. Prosecutor's Initiative Regarding Sexual and Gender-Based Crimes..............................................................722

1. Strategic Plans.....................................................722
2. Policies.................................................................723

a. 2014 Policy Paper on Sexual and Gender-Based Crimes.................................................723
b. 2016 Policy on Children................................724

D. The ICC's Case Against Congolese Militia Leader Bosco Ntaganda.........................................................725

1. Background: The Situation in the DRC................725
2. The Charges Against Ntaganda...........................727
3. Confirmation of Charges Proceedings.................729

a. Challenge by the Accused..............................730
b. Counterarguments by the Prosecution..........731
c. Second Decision of the Appeals Chamber.....731

IV. USING THE ICC APPEALS CHAMBER'S DECISION IN NTAGANDA AS A MEANS TO IMPROVE ACCOUNTABILITY FOR SEXUAL AND GENDER-BASED INTERNATIONAL CRIMES AGAINST MEN AND BOYS.........734

V. CONCLUSION.......................................................................................743

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"The crimes are intensely personal, the injuries often less visible, and the details provoke discomfort and aversion. But the alternative is silence, impunity, and grave injustice."

Kelly D. Askin¹

I. Introduction

Sexual violence has been a part of armed conflict throughout history. Despite its prevalence, the issue has only recently been addressed in international jurisprudence. But, this growing recognition has largely focused on sexual violence against women, allowing the equally brutal physical and mental abuse of men to fade into the background.² For example, Article 76(1) of the 1997 Additional Protocol I to the Geneva Conventions specifically states that "[w]omen shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault."³

The International Criminal Court (ICC or Court) has jurisdiction, in accordance with the Rome Statute (Statute), with respect to the crime of genocide, crimes against humanity, and war crimes.⁴ The Statute specifically denotes crimes of sexual violence as both crimes against humanity and war crimes. Recognizing that the ICC's jurisdiction extends to violence that occurs outside of "armed conflict," as that term is defined in international law, this Note uses terms such as "wartime," "in time of war," "conflict," and "extreme violence" interchangeably to encompass the larger category of "armed conflict".

Recently in The Prosecutor v. Bosco Ntaganda, the Appeals Chamber of the ICC (Appeals Chamber) clarified that it has jurisdiction under the Statute over sexually violent crimes committed against members of the same armed group as the attacker or attackers.⁵ In its 2017 judgment on the appeal of Mr.

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Ntaganda, the Appeals Chamber stated there is no categorical limitation on who can be a victim of sexual violence as a war crime.⁶ Conduct is properly considered a war crime, and thus within the jurisdiction of the ICC, if "the conduct in question 'took place in the context of and was associated with an armed conflict' of either international or non-international character."⁷ When this nexus requirement is met, sexual violence is considered a war crime under the Statute.⁸ This jurisdictional clarification opens the door for prosecution of sexually violent crimes committed against persons taking part in armed conflict, and may allow the ICC to play a role in defining the cultural norms surrounding wartime sexual violence.

This Note will argue that a gender-based approach to sexually violent crimes that utilizes the Appeals Chamber's decision in Ntaganda can promote accountability for the virtually unrecognized male victims. Such an approach can redefine the cultural boundaries of sexual violence in the context of armed conflict. Part II explores the problem of sexual and gender-based international crimes by defining these crimes as committed against men and boys. Part II also expands on the history and progression of sexual violence against men. Part III details the ICC's approach to sexual and gender-based crimes. Part III also explains the June 2017 decision of the ICC Appeals Chamber on Ntaganda's Appeal. Part IV analyzes how the judgment on Ntaganda's appeal may be used as a means to improve accountability for sexually violent crimes against men and boys. Part V concludes by arguing that the widespread issue of male sexual violence deserves increased recognition and that a gender-based approach to this problem using the decision in Ntaganda holds promise for male victims.

II. THE PROBLEM OF SEXUAL AND GENDER-BASED INTERNATIONAL CRIMES

The problem of sexual and gender-based international crimes is considered below by defining the crimes against male victims, exploring the history of wartime sexual violence, presenting evidence of the contemporary prevalence of male sexual violence, and expanding on the tradition of relative inattention to male victims of sexually violent crimes.

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A. Defining the Phenomenon of Sexual and Gender-Based International Crimes Against Men and Boys

Male sexual violence in armed conflict is an act of dominance, grounded in a web of cultural preconceptions about masculinity, power, and other dynamics present in the context of sexual violence.⁹ First, this section explores the concepts of sex and gender in the context of sexual violence. Then, it addresses the two contexts in which sexually violent international crimes can occur.

1. "Sex" and "Gender" as Targets of Atrocity

The way in which individual cultures define and organize gender and sexuality shapes the experiences of sexual violence victims and determines how the victims' communities react to such violence. In addition, community understandings shape the meaning of gender and sexuality within a society.¹⁰ Before discussing crimes of sexual violence committed against male victims, it is important to define "sex" and "gender" in this context.

a. "Sex" and Biology

The Office of the Prosecutor (OTP or Office) of the ICC in its 2014 Policy Paper on Sexual and Gender-Based Crimes (OTP Policy on Sexual and Gender-Based Crimes) states "'[s]ex' refers to the biological and physiological characteristics that define men and women."¹¹ Sex, as so defined, denotes the biological characteristics that make a person male or female. It is, as one scholar suggests, a material concept of sexuality in which science determines what is considered male or female.¹²

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Sexual crimes that fall under the subject-matter jurisdiction of the ICC are listed under Articles 7(1)(g), 8(2)(b)(xxii), and 8(2)(e)(vi) of the Statute.¹³ Referring to the terms as used in the above articles of the Statute, the OTP Policy on Sexual and Gender-Based Crimes clarifies that:

[in] relation to 'rape', 'enforced prostitution', and 'sexual violence', the Elements require the perpetrator to have committed an act of a sexual nature against a person, or to have caused another to engage in such an act, by force, or

...