During a UN-sponsored seminar on sexual violence against men and boys in conflict Prof. Laurel Fletcher of UC Berkeley discussed ways in which the legal framework could be strengthened to address sexual violence against men and boys in conflict.

1. International Human Rights Law Clinic
Enhancing the Legal Framework for Conflict-
Related SexualViolence Against Men
Professor Laurel E. Fletcher
Director, International Human Rights Law Clinic
July 25, 2013

2. 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

3. 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

4. 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.

5. 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.

6. Prosecutions for Sexual Violence Against
Men in the Former Yugoslavia
In 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

7. 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

8. Barriers to Accountability for Sexual
Violence Against Men in Domestic Law
Domestic 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

9. Ugandan Example
Definition 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.

10. 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

11. Criminalization of Sodomy and Chilling
Effect on Reporting Sexual Violence
UPC §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.

12. 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.

13. Discussion