HALSBURY’S LAW EXCHANGE

International Human Rights Law

and Sexual Violence Against Men
in Conflict Zones

Tom Hennessey and Felicity Gerry

The authors would like to thank Jonathan Cooper QC OBE for his guidance in the
development of this paper

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In no other area is our collective failure to ensure effective protection for civilians more
apparent… than in terms of the masses of women and girls, but also boys and men, whose
lives are destroyed each year by sexual violence perpetrated in conflict.

United Nations Secretary-General Ban Ki-moon, 2007

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 RECOMMENDATIONS

The overwhelming focus in international law on women as victims of rape is at odds with
the acceptance amongst charities and academics that sexual violence is not gender-specific.
As such, we recommend a renewed commitment to helping male victims of sexual violence,
which can only add to our understanding and ability to tackle human rights abuses against all
victims, men, women and children alike.

We urge the UK government to work towards an instrument short of a treaty at UN level.

This, we suggest, should take the form of a non-binding Declaration of the General Assembly
on Sexual Violence Against Men in Conflict, which would definitively state the UNs’ opposition
to such violence, and commitment to work towards the protection of victims. As to the
artificial sex bifurcation of the issue, we believe that the Declaration should affirm that
sexual violence threatens victims regardless of gender, but should make clear that the UN
is specifically committed to combating the historical reluctance to acknowledge and tackle
sexual violence aimed at men.

• The UK should work towards a new UN General Assembly resolution which observes
the historical reluctance to recognise sexual violence against male victims and
confirms the UN’s commitment to tackle such violence gender-neutrally.

• The UK should advocate that the Committee Against Torture and the Human Rights
Committee issue General Comments acknowledging the prevalence of sexual violence
against men.

• The UK should accept the right of individual petition under the International Covenant
on Civil and Political Rights, the Convention on the Elimination of All Forms of Racial
Discrimination, and the Convention Against Torture.

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 INTRODUCTION

Sexual violence is an abhorrent, and sadly prevalent, feature of many conflicts. The widespread
occurrence of sexual violence has a devastating impact on the victims and society at large.

Although international treaties seek to prevent such violence occurring these are often
ineffectual at times of socio-political flux and therefore protection is required for the victims
of these atrocities.

Current discourse on sexual violence arising in conflict zones focuses almost exclusively on
violence perpetrated against women and children - these groups making up the large majority
of reported incidents.

However, the current figures do not accurately reflect the number of male victims of sexual
violence. A lack of reporting by male victims, for reasons of shame, guilt and fear of not being
believed or of being denounced for what has occurred, has created an inaccurate representation
of the dynamics of sexual violence in conflict zones.

This lack of accurate primary data contributed to the development of a culture of silence
amongst governmental organisations and NGOs on the subject of male victims. In the past
decade this silence has begun to break but there still remains a reticence to fully engage with
the realities of male victims of sexual violence.

Efforts have been made to create international legal instruments to provide recourse for victims
of sexual violence. However, the positive steps taken to develop an effective framework of legal
protection have been focussed almost exclusively on the protection of female and child victims.
The lack of recognition of male victims of sexual violence has resulted in an international legal
blind spot that needs to be addressed.

The gender imbalance of current legislation should be rectified by the UK working towards a
UN General Assembly resolution recognising sexual violence against men and demonstrating the
UN’s commitment to a gender-neutral approach to sexual violence.

Greater protection for the victims of sexual violence can be achieved by the UK accepting the
right of individual petition under the International Covenant on Civil and Political Rights, the
Convention on the Elimination of All Forms of Racial Discrimination, and the Convention Against
Torture – allowing those whose rights under the treaty have been violated to bring their case
directly to the treaty body.

The recommendations of this paper seek to: raise awareness within the international community
of the male victims of sexual violence in conflict zones; clarify the legal landscape; and provide
access to legal redress for previously underrepresented victims.

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 International Human Rights Law and
Sexual Violence Against Men
in Conflict Zones
Tom Hennessey and Felicity Gerry

INTRODUCTION
Sexual violence occurs in times of peace and of war. It takes place within committed
relationships and between strangers, between people of any gender and sexuality, and for
reasons that can be complex. However, despite common misconceptions, it is widely accepted
amongst academics and charities that rape and other forms of sexual offences are usually about
dominance and control rather than sexual gratification; a form of physical violence that has the
power to fundamentally undermine the victim’s confidence and self-identity. Because of this,
sexual violence is a common feature of war zones. As armies or militias struggle to assert their
dominance, civilians within contested areas often find themselves subjected to widespread
sexual abuse. The result is fear, humiliation and trauma.

Collecting evidence of such human rights offences is hard enough in a peacetime setting. The
difficulties are magnified during conflict, when governmental control has broken down, civilians are
displaced in large numbers and the protections that would normally operate are often unavailable.
However, according to one analysis of prevalence studies, in 1999 13% of women worldwide had
been raped in their lifetime (as children or adults), and it has taken generations of women
speaking out about sexual violence to get their voices heard on the domestic and international
stage. Women’s rights groups have achieved major successes; the term “gender based violence”
has become synonymous with female victims, and a number of international organisations now
draw on bespoke legal instruments to combat sexual violence against women and girls.

What will be of surprise to many is that the same study found the global figure for men suffering
such abuse was 3% – representing, at that time, 210 million victims.

On 17 July 2011 The Observer newspaper published an article by the journalist Will Storr
entitled The Rape of Men. In it Storr reported that, “Of all the secrets of war, there is one that
is so well kept that it exists mostly as a rumour. It is usually denied by the perpetrator and his
victim. Governments, aid agencies and human rights defenders at the UN barely acknowledge
its possibility. Yet every now and then someone gathers the courage to tell of it.” These are
male victims of sexual violence in conflict zones: “the hidden casualties of war”.

Men appear to be particularly vulnerable to sexual assault in conflict zones. As the United
Nations Office for the Coordination of Humanitarian Affairs has noted, “Most authors agree that
investigation is likely to reveal male-directed sexual violence against men and boys – whether
in the form of rape, sexual torture, genital violence, or sexual humiliation – in most conflicts.”
However, very little help is available for male victims. According to one commentator, “male
experiences of sexual assault have, for the most part, been silenced”.

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This paper aims to contribute to the growing number of voices calling for the issue to be
effectively addressed. It will begin in Part 1 by outlining the range of sexual violence faced by
male victims and discussing the dynamics that underlie it, finding it to be a devastatingly effective
and practically universal instrument of war. However, the paper will discover that despite its
prevalence, this violence is chronically under-reported by victims and little acknowledged by
the institutions that should be providing help. It will go on in Part 2 to examine the legal
protections offered by international humanitarian, criminal and human rights law, finding them
wholly inadequate, and making in Part 3 a number of recommendations for the development of
international law in this area.

PART 1
Violence

In recent years sexual violence against men has been documented as a feature of conflicts in El
Salvador, Chile, Guatemala, Argentina, Greece, Northern Ireland, Chechnya, Turkey, the former
Yugoslavia, Sri Lanka, Iraq-Kuwait, Coalition Iraq, Liberia, Sierra Leone, Kenya, Sudan, the Central
African Republic, Burundi, Uganda, Rwanda, the Democratic Republic of the Congo, Zimbabwe,
and South Africa, amongst others. In conflicts in which it has been properly addressed, it has
been found to be “regular and unexceptional, pervasive and widespread”. Victims’ accounts are
notably rare, but the following provides a flavour of the horrors that they face.

Storr’s report from Uganda talks of men caught up in ongoing conflict being “forced to penetrate
holes in banana trees that run with acidic sap, to sit with their genitals over a fire, to drag rocks
tied to their penis, to give oral sex to queues of soldiers, to be penetrated with screwdrivers
and sticks”.

At a torture treatment centre in London, 21% of Sri Lankan Tamil males reported sexual abuse
in detention, with “sticks pushed through the anus, usually with chillies rubbed on the stick
first”, being “made to masturbate soldiers orally” and being "forced with... friends to rape each
other in front of soldiers for their ‘"entertainment"'. In Sudan, boys have been kept as slaves by
government soldiers and subjected to sexual abuse including violent gang rape. In the 1980s,
76% of male political prisoners surveyed in El Salvador reported at least one instance of sexual
torture, and a study of 6,000 concentration camp inmates in and around Sarajevo found that
80% of males had been raped in detention.

The International Criminal Tribunal for the former Yugoslavia heard evidence of two Muslim
brothers being forced at gunpoint to perform fellatio on each other. The Report of the UN
Commission of Experts, set up to investigate sexual violence in the region, found that, “[c]
astrations are performed through crude means such as, forcing one internee to bite off another's
testicles, and tying one end of a wire to the testicles and the other end to a motorcycle, then
using the motorcycle to yank off the testicles”. In a 2010 survey in the Democratic Republic
of Congo, 23.6% of men reported being subjected to sexual violence, with 7.5% of men having
been gang raped. The survey estimated that 760,000 men in the country were survivors of
sexual violence.

The lasting effects of such experiences are severe. As well as the considerable physical
damage, the World Health Organisation (WHO) has found that psychological symptoms include

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“guilt, anger, anxiety, depression, post-traumatic stress disorder, sexual dysfunction, somatic
complaints, sleep disturbances, withdrawal from relationships and attempted suicide.”

Dynamics

In a paper discussing the motivations behind these kinds of acts, Sandesh Sivakumaran of the
University of Nottingham notes, “In any instance of sexual violence, various dynamics are going
to be present; rarely will sexual violence be committed for any one sole reason” . However, he
goes on to provide a useful discussion of the factors involved.

As with the victimisation of women, Sivakumaran suggests that sexual violence against men
is less about sexual desire than the assertion of power and dominance – “In this way, power
dynamics are established within the sexes as well as between them” . This would explain why
men appear to be at significant risk of sexual violence in conflict zones; “as rape and other
forms of sexual violence are about maintaining and restoring certain power balances, sexual
violence will likely be committed in time of potential imbalance”.

As a result of gender stereotyping, there is a widespread assumption that masculinity is

associated with dominance, and that men can only be perpetrators of violence. When men
are the victims, they are therefore considered to have been emasculated. According to the
previous UN Secretary-General, Kofi Annan, “[t]he sexual abuse, torture and mutilation of male
detainees or prisoners is often carried out to attack and destroy their sense of masculinity or
manhood”. Sivakumaran argues that this effect will often extend to the victim’s perceived
sexuality, as it is not uncommon during rape for the victim to experience arousal.

This potential for disempowerment is particularly potent when sexual violence is committed in
public; if male members of patriarchal societies are unable to protect themselves, their role
as leaders and protectors of the community is undermined, and the community as a whole is
disempowered. Sexual violence is therefore an effective and devastating tool for the destruction
of the physical, psychological and social integrity of the victim.

Reporting

This problem is chronically underreported – partly because victims are often unwilling to come
forward. According to the World Health Organisation (WHO), “The evidence available suggests
that males may be even less likely than female victims to report an assault to the authorities.
There are a variety of reasons for this, including shame, guilt and fear of not being believed
or of being denounced for what has occurred”. Most of the victims of abuse in Sri Lankan
detention had not reported the incidents as they felt too ashamed, and victims who do come
forward will often recount what they have witnessed happen to others rather than what they
themselves have experienced. In the Congo, rates of non-report of the event at the time of
seeking medical care are as high as 75% or higher, and reported incidents of sexual violence
against males worldwide are likely to be a fraction of the true number of cases.

In countries where homosexuality is criminalised, survivors are often faced with an assumption
on the part of the authorities that they have engaged in consensual homosexual activity, and
so can themselves face criminal charges. Storr reports that, “They will probably be ostracised

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by friends, rejected by family and turned away by the UN and the myriad international NGOs
that are equipped, trained and ready to help women”. Both perpetrator and victim enter a
“conspiracy of silence”.

These problems are exacerbated in conflict zones where chaotic circumstances and the
breakdown of systems to collect and report information make efforts to document sexual violence
particularly difficult. According to the UN Secretary-General, “In Kenya, the Commission of
Inquiry into Post-Election Violence found that a number of sexual crimes had been committed
against men; however, as a result of shame and lack of support, none were willing to testify”.

Recording

Another major factor in the failure to help male victims of sexual abuse has been the
reticence of institutions to recognise that male victims exist. Reports of non-governmental
and intergovernmental organisations were, until recently, silent on the subject. In 2002 it was
reported that out of 4,076 non-governmental groups that focused on conflict and politically-
related sexual violence, only 3% addressed the experiences of male victims and a quarter explicity
denied that male-on-male violence was a serious problem. No international organisation or
NGO appear to have established a research program or policy initiative specifically focused on
male victims of sexual violence in wartime.

In subsequent years it has become more common for the phenomenon to be acknowledged, but
only in passing. A 2004 Amnesty International report into mass rape in the Congo opens with
the following:

“In the course of the armed conflict in eastern Democratic Republic of the Congo (DRC),
tens of thousands of women and girls have been victims of systematic rape and sexual
assault committed by combatant forces. Women and girls have been attacked in their
homes, in the fields or as they go about their daily activities. Many have been raped
more than once or have suffered gang rapes. In many cases, women and young girls have
been taken as sex slaves by combatants. Rape of men and boys has also taken place”.

Male rape is briefly mentioned later in the document, but a section on “International Human
Rights Law on sexual violence” focuses exclusively on violence against women. After the
atrocities in the former Yugoslavia discussed above, both Amnesty International and Human
Rights Watch published special reports on sexual violence against women, but neither addressed
the abuse of men.

When sexual violence against men is recognised, it is often qualified by a statement that
because most victims are women the discussion will focus on their experiences. One report by
the WHO states that, “While sexual violence can be directed against both men and women,
the main focus of this chapter will be on the various forms of sexual violence against women”.
Sexual violence against men and boys is then addressed in a short separate box underneath, as
if it is merely an ancillary phenomenon.

The (largely internal) physical symptoms of sexual violence are not always as apparent as other
forms of abuse, and, without recognition at an institutional level, health professionals and aid

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workers are often not trained to recognise them. Storr ends his article by saying that “… one
man went to see his local doctor. He told him he had been raped four times, that he was injured
and depressed and his wife had threatened to leave him. The doctor gave him a Panadol”.

The discourse on conflict-related sexual violence is highly politicised. Paulina Wyrzykowski,

Research and Advocacy Officer at the Refugee Law Project (RLP), reports that “many of the
humanitarian workers and many of the human rights workers will tell you that it is dangerous
to take the focus off of women and onto men because it may draw resources away”. The RLP
has produced a documentary called Gender Against Men. When the film was screened, the
project’s British director, Dr Chris Dolan, claims that attempts were made by international aid
agencies to stop him: “there's a fear among them that this is a zero-sum game; that there's a
pre-defined cake and if you start talking about men, you're going to somehow eat a chunk of
this cake that's taken them a long time to bake." Dolan claims that Dutch Oxfam threatened
to cut off its funding unless it was given a guarantee that 70% of the RLP’s client base would
be female.

The United Nations Action against Sexual Violence in Conflict (UN Action) was set up in 2007 to
coordinate the work of 13 UN organisations working on areas of sexual violence. However, the
focus on female victims is clear. A UN Action publication states that, “Sexual violence in conflict
is a serious, present-day emergency affecting millions of people, primarily women and girls,”
and another that, “Though women and girls are the primary targets of rape, men and boys
may also be targeted to inflict humiliation and shatter leadership structure”. If there was any
doubt as to the priorities of UN Action, one promotional leaflet ends with the slogan “UN Action:
making a real difference in the lives of women and girls during and in the wake of conflict”.
Here men and boys are not even given lip service.

The consequences of these attitudes on male victims are powerful. In Gender Against Men, a
Congolese refugee reports his experience of testifying to the United Nations High Commissioner
for Refugees on the gang rape he suffered while in prison, “When you explain this problem,
people don’t listen to you… When you say ‘I was persecuted, I experienced this in my country’,
they respond ‘But you are a man, you can’t be raped’. So that’s where it stops… I have seen
that there is a lack of comprehension. One would say that people don’t know that the rape of
men even takes place.”

Priscilla Ciesay of the UN Office of the High Commissioner for Human Rights claims that, “Most
of us go in there talking to women, and looking at the women as the survivors or the victims
and not really talking to the men or addressing our questions and our interventions to the men.
That’s why they say ”what about us?” and you kind of laugh…‘you may be the perpetrator
but not the victim’.” A report in the Journal of the American Medical Association on violence
in the Congo argued that “Policy makers and donors need to adjust societal paradigms of
sexual violence and direct attention to female perpetrators and male survivors in regard to
rehabilitation and justice”. In an important and revealing study, Lara Stemple of the University
of California Law School concludes that “Male rape will only be curtailed when the perception
of men broadens beyond one that sees men as a monolithic perpetrator class“.

Jones and DelZotto reported in 2002 that an “exceedingly narrow construction of male
dominance informs the work of most humanitarian groups. In turn, such groups depend for

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their funding and infrastructure on elite actors who rely strongly on masculine stereotypes to
uphold and advance their political agendas... Attention to male victims of sexual violence in
wartime has been fragmentary when it is not been entirely lacking… a micro-level approach
to assisting male victims of wartime sexual violence remains strictly limited, indeed almost
unheard-of. And at the macro-level, it is safe to say that as long as the work of political and
humanitarian actors continues to be informed by narrow definitions both of men/masculinities
and sexual violence in wartime, the hidden casualties of war – sexually exploited male victims
– will continue to be denied the services they so desperately need”.

So international humanitarian agencies do not appear to be providing the help that is sorely
needed, and a report in the Journal of the American Medical Association on the Congo argues
that, “There is a need for inclusion of men in sexual violence definitions and policies… The
protections of men and boys should be considered by the United Nations as it has with women
and children”.

To what extent has the UN focused on sexual violence, and what can be drawn on in international
law?

PART 2
International humanitarian and criminal law

In 1986 it was suggested that “[i]n some respects, the situation facing male rape victims today
is not so different from that which faced female victims, say, two centuries ago”, and in 2007,
noted Sivakumaran, not much had changed.

After widespread abuses during World War II, the International Committee of the Red Cross
initiated the Four Geneva Conventions (1949). These designated certain crimes as “grave
breaches”, thus creating a hierarchy of crimes according to their perceived severity. Although
sexual violence is now viewed as falling into other recognised categories, it was not in itself
expressly designated as such a breach. However, Art 27 of the fourth Convention held that State
parties were obliged to protect women in international conflict zones “against any attack on
their honour, in particular against rape, enforced prostitution, or any form of indecent assault”.
Although the idea that the rape of a woman is in any way a reflection on her own “honour”
is now recognised as flawed, this was an important development in the acknowledgement of
sexual violence in international law.

In 1977 Additional Protocol II to the Conventions prohibited “outrages upon personal dignity,
in particular humiliating and degrading treatment, rape, enforced prostitution and any form
of indecent assault” in non-international armed conflicts. Then in the early 1990s, after the
conflict in Yugoslavia led to widespread pressure to work towards greater legal accountability for
the atrocities committed, women’s groups campaigned successfully for the acknowledgement of
sexual violence against women in international criminal law and placed within the jurisdiction
of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR).

The ICTY (1993) and ICTR (1994) Statutes list rape as a crime against humanity, and Art 4 of
the ICTR includes “Outrages upon personal dignity, in particular humiliating and degrading
treatment, rape, enforced prostitution and any form of indecent assault” as a violation of

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Art 3 common to the Geneva Conventions and of Additional Protocol II. Adopted in 1998, the
Rome Statute of the International Criminal Court (ICC) also covers a broad range of sexual
offences, including rape, enforced prostitution and forced pregnancy, and contains in Art 7(3)
the first definition of “gender” in an international treaty: “the two sexes, male and female,
within the context of society.” Additionally, Art 54 (1) (b) explicitly requires the Prosecutor
to “take into account the nature of the crime, in particular where it involves sexual violence,
gender violence”. This led to a number of breakthroughs in international jurisprudence on
sexual violence. In Akayesu for example, the ICTR contributed to the definition of rape as an
element of genocide, and in Kunarac the ICTY advanced the law on sexual slavery.

In this way the international community developed a language of sexual abuse as an instrument
of warfare, ethnic cleansing, and genocide. By 2010, the ICTY had made findings of sexual
violence in 24 out of 75 cases, the ICTR in 13 out of 24 cases, and the Special Court for Sierra
Leone (SCSL) in both of its completed cases.

However, these developments alone have not resulted in an effective framework of protections;
international criminal law is retrospective, serving to punish offenders and deter others, but
not offering tangible help to victims until after their ordeal. Incidents involving rape have often
been classed as “torture”, and castration as “mutilation”, betraying a lack of recognition of the
sexual nature of abuse both on the ground and in the courtroom. Perpetrators of sexual violence
against men have reportedly received lighter sentences than those who targeted women.

These developments also do not seem to have removed the self-conscious insistence on framing
sexual violence against men as merely an ancillary phenomenon to the wider problem of offences
against women. In 2009 the UN Secretary-General reported that “While women and girls are
particular targets and are the majority of the victims of sexual violence, the case-law of the
International Criminal Tribunal for the Former Yugoslavia (ICTY) and the Special Court for Sierra
Leone (SCSL) also bears testimony to the use of sexual violence against men”. A UN review of
the judgments of these bodies found that “women, children and men were victims of sexual
violence in the armed conflicts relevant to the ICTY, ICTR and SCSL. They also underscore that
the majority of victims of sexual violence identified in the cases at these courts are women”.
Despite the recognition in international humanitarian and criminal law of rape as an issue that
affects both women and men, this does not appear to have been translated into justice for male
victims, and there remains a overly cautious approach at UN level.

International human rights law

In 2009 the UN Secretary-General stated that, “Under international law, States are obligated
to refrain from violating human rights, and must take positive steps to prevent sexual violence,
protect individuals from such violence, punish perpetrators, and provide remedy to victims”.

The most robust sources of international law are found in treaties. Of these there are nine core
human rights documents, each establishing a committee of experts to monitor implementation
by State parties and publish their interpretations of treaty provisions in the form of general
comments or recommendations. These are not themselves legally binding but, as they are
issued by the experts who represent binding treaties, they carry considerable force. However,
no treaties or monitoring bodies have specifically addressed sexual violence against men.

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As stated above, incidents of rape and other sexual assault in conflict zones are often recorded
under the rubric of general violence, and so it is worth considering what progress has been
made to combat this category of offences. The International Convention on the Elimination of
All Forms of Racial Discrimination (1966) includes at Art 5(b) “The right to security of person
and protection by the State against violence or bodily harm, whether inflicted by government
officials or by any individual group or institution”. But this is aimed specifically at offences
related to racial conflict. The most widely applicable treaty for the prevention of physical
violence is the Convention Against Torture, and Other Cruel, Inhuman and Degrading Treatment
or Punishment (1984).

Torture has been a prominent topic since the beginnings of international human rights discourse.
Article 5 of the United Nations’ Universal Declaration of Human Rights (UDHR) held that, “No
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”,
with Art 2 pointing out that “Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as… sex”. As a founding document of the UN,
the UDHR is treated, either in whole or in part, as binding on member states.

In 1966 these protections were bolstered by the International Covenant on Civil and Political
Rights (ICCPR), which held in Art 7 that, “No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment”. In 1984 the new Convention Against Torture,
and Other Cruel, Inhuman and Degrading Treatment or Punishment defined torture as “any
act by which severe pain or suffering, whether physical or mental, is intentionally inflicted
on a person for such purposes as… intimidating or coercing him or a third person, or for any
reason based on discrimination of any kind…”. The term “any act” would appear to include
a sexual act, thereby providing a substantial legal protection from sexual violence. However,
the treaty’s monitoring committee, which first met in 1988, has been said to have “shied away
from explicitly finding that rape is a form of torture”. It was not until 2007 that it decided that
sexual violence could amount to torture under the Convention.

Article 1 of the Convention appears to further limit its application to circumstances where “…
pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of
a public official or other person acting in an official capacity”. States, however, have positive
obligations under international law to prevent abuses by private actors and to investigate and
punish such incidents when they occur. By this “due diligence” standard, States can be held
accountable for their failure to protect individuals from human rights abuses by non-State
actors. Furthermore, the Convention’s travaux préparatoires, which show the development of
discussions during its drafting stages, suggest that the term “acquiescence” was introduced to
ensure that the Convention covered situations where public officials fail to act when torture
is committed by a non-State actor. The Committee’s second General Comment, published in
November 2007, states that:

“… where State authorities or others acting in official capacity or under colour of

law, know or have reasonable grounds to believe that acts of torture or ill-treatment
are being committed by non-State officials or private actors and they fail to exercise
due diligence to prevent, investigate, prosecute and punish such non-State officials
or private actors consistently with this Convention, the State bears responsibility
and its officials should be considered as authors, complicit or otherwise responsible

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 under the Convention for consenting to or acquiescing in such impermissible acts… The
Committee has applied this principle to States parties’ failure to prevent and protect
victims from gender-based violence, such as rape, domestic violence, female genital
mutilation and trafficking”.

In 1985 the United Nations Commission on Human Rights (since succeeded by the Human Rights
Council) appointed a Special Rapporteur on torture. The Rapporteur’s mandate covers all States
irrespective of whether they have ratified the Convention, and the mandate holder undertakes
fact-finding country visits, submitting annual reports to the Human Rights Council and the
General Assembly. Resolution 1998/38 of the Commission invited the Special Rapporteur “to
continue to examine questions concerning torture and other cruel, inhuman or degrading
treatment or punishment directed against women and conditions conducive to such torture, to
make appropriate recommendations concerning the prevention and redress of gender-specific
forms of torture, including through rape …”. The UN High Commissioner for Refugees has
advocated that the Rapporteur take action on allegations of rape and sexual assault, and in-
country visits have examined sexual slavery, trafficking, forced prostitution and rape by non-
governmental individuals.

So if sexual violence is treated as a form of torture, the UDHR, ICCPR, torture Convention,
Commission against Torture and the Special Rapporteur provide a powerful tool kit for activists
and victims of sexual violence. The prohibition on torture is a just cogens norm – a principle
that over time has come to be treated as absolute and non derogable, and “when rape is seen
as torture, it is treated under one of the strongest protections that international law can
offer”. However, there has been an historical reluctance to class sexual violence as torture,
and the treaty was not drafted with this purpose in mind.

Furthermore, the UK has refused to accept the right of individual petition under the Torture
Convention. This would permit those whose rights under the treaty have been violated to bring
their case directly to the treaty body. The UK has accepted this right under the Convention on
the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on
the Rights of Persons with Disabilities (CRPD), but has yet to do so under the Convention on the
Elimination of All Forms of Racial Discrimination (CERD), the Convention Against Torture or the
International Covenant on Civil and Political Rights (ICCPR), the last of which has been accepted
by all other EU member states.

A government review begun in 2002 suggested three main arguments for the decision not to
accept individual petition under these treaties: though they may request that offending states
take remedial action, decisions of treaty bodies are not binding, so their practical value is
limited; secondly, that the cost of preparing government submissions in response to petitions
would create a significant burden on public funds; and thirdly, it is suggested that there already
exists an effective framework of domestic legal protections that safeguard Convention rights.
As we have seen above, though the findings of treaty bodies are non-binding, they nevertheless
carry considerable political weight and contribute to the development of customary international
law by helping to shape state practice. The cost implications of responding to petitions may
indeed be significant (though it is difficult to believe that they would be insurmountable), this
should not be allowed to outweigh the need to ensure the adequate protection of Convention
rights.

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As to the third argument voiced by the review, the Joint Committee On Human Rights, a
Parliamentary select committee, argued in 2005 that international human rights instruments
are intended to provide accountability where the national legal system has failed to provide a
remedy, or where the compliance of the national framework with international human rights
law requires clarification. The Joint Committee pointed to findings of treaty bodies that suggest
occasions when the UK has not fully complied with treaty provisions, such as in A v SSHD [2005]
UKHL 7, where it was found that there was no provision in domestic law equivalent to Art 15
of the Torture Convention on the non-admissibility of evidence obtained through torture. The
Committee also pointed out that for a petition to be admissible the applicant must already
have exhausted all domestic remedies, and so the procedure plays a vital role in providing a
safety net for individuals who find themselves unprotected by national law. The committee
concluded that the UK’s failure to accept rights of petition under these treaties undermines its
international credibility as a promoter of human rights.

In a recent study, Lara Stemple found the following:

“There are well over one hundred uses of the term ‘violence against women’ – defined
to include sexual violence – in U.N. resolutions, treaties, general comments, and other
documents. No human rights instruments explicitly address sexual violence against men…
The international instruments that contain the most comprehensive and meaningful
definitions of sexual violence exclude men on their face, reflecting and embedding the
assumption that sexual violence is a phenomenon relevant only to women and girls.”

Stemple emphasises that sub-groups of men with characteristics that make them particularly
vulnerable, such as refugees, migrant workers or those with disabilities, are consistently
excluded from human rights documents. Instruments that do discuss the vulnerability of such
groups to sexual violence generally only address the suffering of women. For example, the
Committee on the Elimination of Racial Discrimination held in 2000 that, “Certain forms of
racial discrimination may be directed towards women specifically because of their gender, such
as sexual violence committed against women members of particular racial or ethnic groups in
detention or during armed conflict.”

This is not consistently the case – the Convention on the Rights of Persons with Disabilities holds
sex-neutrally at Art 16.1 that, “States Parties shall take all appropriate legislative, administrative,
social, educational and other measures to protect persons with disabilities, both within and
outside the, from all forms of exploitation, violence and abuse, including their gender-based
aspects”. However when men are substantially addressed, they are often discussed only in
their capacity as perpetrators or active agents in abuse. The UN’s International Conference on
Population and Development found that, “Special efforts should be made to emphasize men’s
shared responsibility and promote their active involvement in responsible parenthood… Special
emphasis should be placed on the prevention of violence against women and children”.

Stemple argues therefore that “human rights advocacy tools for men are inadequate”, and that
“The failure of the instruments to hold governments accountable for sexual violence against
male victims, simply put, encourages states to continue to ignore the problem”.
But what progress, if any, has been made to rectify this deficiency?

14
Security Council Resolutions

The Security Council is the UN’s primary body for promoting international peace and security.
The legal status of the Council’s resolutions has not been conclusively agreed, but they bring
substantial international attention to an issue and provide a political framework that compels
action by governments and international organisations. Examination of a series of such resolutions
can tell us a great deal about the development of international discourse on a specific topic.

A particularly important instrument for the issue of sexual violence has been Security Council
Resolution 1325, which was passed unanimously in October 2000. It begins by “[e]xpressing
concern that civilians, particularly women and children, account for the vast majority of those
adversely affected by armed conflict”, appearing therefore to include in its focus the plight
of boys. However, once sexual violence is addressed more specifically, the language shifts by
calling on all parties to armed conflict “to take special measures to protect women and girls
from gender-based violence, particularly rape and other forms of sexual abuse”, and urging
states to end impunity for “sexual and other violence against women and girls”.

Similarly, Resolution 1674 (2006) “Condemns in the strongest terms all sexual and other forms
of violence committed against civilians in armed conflict, in particular women and children”
– the unfortunate implication being that the Security Council does not take sexual violence
against men quite so seriously. Resolution 1674 requested the Secretary-General to report on
its implementation, and in his first report, delivered on 20 August 2009, the Secretary-General
urged the Council to:

“…(c) Ensure that resolutions to establish or renew mandates, or to impose enforcement

measures under Chapter VII of the Charter of the United Nations, contain provisions, as
appropriate, on the prevention of, and response to, sexual violence, with corresponding
reporting requirements to the Council;
…
(l) Consider giving equal attention to sexual violence in all situations of concern where
sexual violence is perpetrated against civilians.”

It is worth noting the gender-neutral nature of the Secretary-General’s language.

In 2008 Resolution 1820 explicitly linked sexual violence to the Security Council’s mandate
in international peace and security, and noted the legal jurisprudence confirming that sexual
violence can constitute a war crime, a crime against humanity, and a constitutive act with
respect to genocide.

However, in Resolution 1888 (2009) the Council stated that it was “deeply concerned over the
lack of progress on the issue of sexual violence in situations of armed conflict in particular
against women and children, notably against girls…”. The focus here is still clearly on any
victim as long as they are not a man, but the resolution “Requests that the United Nations
Secretary-General appoint a Special Representative… in order to address, at both headquarters
and country level, sexual violence in armed conflict”. It asked the Secretary-General “… to
deploy rapidly a team of experts to situations of particular concern with respect to sexual
violence in armed conflict …”.

15
The first UN Special Representative on Sexual Violence in Conflict, Margot Wallström, was
appointed in February 2010. Her title, however, may be a little misleading, as the Secretary-
General made clear when he stated that she had been appointed “… to end sexual violence
against women and children in conflict areas”. In her first presentation to the UN, Ms Wallstrom
included 35 uses of the “women”, but none of “men”.

In November 2010 the Secretary-General’s second report on the protection of civilians in armed
conflict emphasised “… the fundamental need to focus efforts on making a tangible difference
where and for whom it matters most: in the midst of conflict and for the hundreds of thousands
of civilians – women, men and children – confronting the horrors, pain and suffering of war on
a daily basis”, and in December, Resolution 1960 expressed concern that only limited numbers
of perpetrators of sexual violence had been brought to justice, and requested the Secretary-
General to compile lists of those who are “credibly suspected of committing or being responsible
for patterns of rape and other forms of sexual violence in situations of armed conflict”.

The development of these instruments demonstrate that the Security Council has taken
important steps towards recognition both of the systemic use of sexual violence as an instrument
of war, and its adverse impact on the maintenance of international peace and security, and
has called upon parties to conflict, states and institutions to take measures to prevent this
violence. Whilst there have been some notable developments since 2000 in the UN’s approach
to sexual violence, with an increasing focus in Security Council Resolutions, the establishment
of a Special Representative, and some limited but significant recognition of male victims in
the Secretary-General’s language, the overwhelming focus of these efforts on women and girls
simply does not do justice to the suffering of male victims. Significantly, the most clearly
gender-neutral language has come in the Secretary-General’s reports, rather than from treaties
which represent the authority of binding law.

Regional mechanisms

A number of regional instruments exist to prohibit forms of physical violence. However, again,
those that are geared specifically towards sexual violence focus solely on the protection of women.

Article 5(2) of The American Convention on Human Rights (1969) holds that, “No one shall be
subjected to torture or to cruel, inhuman, or degrading punishment or treatment“. Article
1 of the Inter-American Convention to Prevent and Punish Torture (1985) states that, “The
State Parties undertake to prevent and punish torture in accordance with the terms of this
Convention”, with Art 2 holding that “For the purposes of this Convention, torture shall be
understood to be any act intentionally performed whereby physical or mental pain or suffering
is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as
personal punishment, as a preventive measure, as a penalty, or for any other purpose”.

In 1994 The Inter-American Convention on the Prevention, Punishment and Eradication of

Violence against Women was adopted. This instrument prohibits violence against women and
compels State Parties to establish legal and administrative mechanisms to provide women with
access to remedies. At Art 9 it focuses on the needs of particularly vulnerable groups: “States
Parties shall take special account of the vulnerability of women to violence by reason of,
among others, their race or ethnic background or their status as migrants, refugees or displaced

16
persons. Similar consideration shall be given to women subjected to violence while pregnant or
who are… affected by armed conflict…”.

Article 5 of the African Charter on Human and People’s Rights (1981) holds that “All forms of
exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman
or degrading punishment and treatment shall be prohibited”. In 2005 a Protocol to the African
Charter on Peoples’ and Human Rights on the Rights of Women in Africa was adopted by State
Parties who agreed to “… enact and enforce laws to prohibit all forms of violence against women
including unwanted or forced sex whether the violence takes place in private or in public”. The
following year the countries of the African Great Lakes Region agreed on a Protocol on the
Prevention and Suppression of Sexual Violence against Women and Children, obliging them to
prevent, criminalise and punish such acts.

Article 3 of the European Convention on Human Rights (1950) prohibits torture, and the European
Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
(1987) established a committee of independent experts to maintain and strengthen protections
against violence. In April 2011 the Council of Europe agreed a Convention on Preventing and
Combating Violence against Women and Domestic Violence, but there is no such instrument
protecting men.

As elsewhere, the regional mechanisms of the Americas, Africa and Europe combat torture and
violence against women, whilst failing to protect male victims of sexual violence.

Gender-based violence

The use of the term “gender-based violence” in some instruments may give hope to activists and
victims. After all neither men nor women enjoy a monopoly over gender - except, it appears,
in international law.

The UN Inter-Agency Standing Committee’s Guidelines for Gender-based Violence Interventions

in Humanitarian Settings has expressed its concern that the term is used interchangeably with
the term “violence against women”, thereby leaving no room for a gender analysis of male rape.
For example, the Committee on the Elimination of Discrimination Against Women suggests that
“Gender-based violence is a form of discrimination that seriously inhibits women’s ability to
enjoy rights and freedoms on a basis of equality with men”. According to the UN Office of the
Commissioner on Human Rights, “Such confusion and misuse of the terminology is a barrier to
acknowledging the existence of sexual violence against men”.

When organisations do acknowledge that men also have gender, they do so whilst simultaneously
minimising the relevance this has to their work. In 2003 the Office of the United Nations High
Commissioner for Refugees issued an Expanded Definition of Sexual and Gender-Based Violence
used by UNHCR and Implementing Partners in which it stated that “While women, men, boys
and girls can be victims of gender-based violence, women and girls are the main victims”.

The Office of the United Nations High Commissioner for Refugees has stated proudly that it
“employs an inclusive conception of sexual and gender-based violence that recognises that,
although the majority of victims/survivors are women and children, boys and men are also

17
targets of sexual and gender-based violence”. However this commendable sentiment is
somewhat undermined later in the same document when it is suggests, “While gender-based
violence has a devastating impact on the lives of women and girls who are the majority of
victims/survivors, it also hinders the development of men and boys”. This is an unfortunate
choice of words to describe the impact of sexual violence on victims, and belies an enduring
failure to take the issue seriously.

There are some limited sex-neutral uses of the term. The Convention on the Rights of Persons
with Disabilities holds at Art 16.1 that “States Parties shall take all appropriate legislative,
administrative, social, educational and other measures to protect persons with disabilities,
both within and outside the home, from all forms of exploitation, violence and abuse,
including their gender-based aspects”, and the Vienna Declaration and Programme of Action
states at Art 18 that “... Gender-based violence and all forms of sexual harassment and
exploitation, including those resulting from cultural prejudice and international trafficking,
are incompatible with the dignity and worth of the human person, and must be eliminated.”

However, the overwhelmingly narrow application of the term to offences against women
fatally undermines its value to activists. Whilst the formulation of a new definition that
encompasses violence against both genders would be an important step towards justice
for male victims, it may at present have limited value, as the term is used in few legal
instruments. Furthermore as noted at the beginning of this paper, rape and other forms of
sexual violence are predominantly about power and control rather than sexual gratification.
This is particularly the case in conflict zones, sexual violence is systematically inflicted
against both men and women by attackers who often do not see their actions as impacting on
their own identities. These are crimes aimed at subjugation, regardless of gender.

The focus of our efforts and those of the international community must therefore be on
tackling and preventing sexual violence wherever it occurs and whomever it affects, and the
instruments needed should be equally applicable to crimes against all victims, be they men,
women or children.

However, we are faced with a situation in which the significant progress that has already been
made in combating this violence has been almost entirely focused on helping female victims.
Despite this important work, it is men who find themselves disproportionately helpless. It is
for this reason that we hope through this paper to raise awareness specifically of the violence
affecting men, and to make suggestions for immediate steps to prevent it.

Universal Periodic Review

The Universal Periodic Review (UPR) was created in 2006 by the UN General Assembly. It
involves an examination of the human rights records of all member states once every four
years, and after the completion of its 12th session in 2011, has now assessed every country.
Reviews are based on a national report provided by the State under examination, the reports
of independent human rights experts and groups, human rights treaty bodies, and information
from other stakeholders including non-governmental organisations and national human rights
institutions. Each State is obligated to implement the recommendations contained in the
UPR’s final report, and must provide information on this progress.

18
This is an important and unique mechanism for the enforcement of human rights obligations.
However, as sexual violence against men is not explicitly addressed in international human
rights law, the UPR is only of indirect use to activists for male victims of sexual violence
through the enforcement of instruments against torture. Until this is addressed the utility of
this otherwise important and unique mechanism will be limited.

PART 3
Conclusion

We have seen that as a devastating instrument of war, sexual violence is prevalent in conflicts
worldwide. However the impact of this phenomenon is hidden by a conspiracy of silence
between perpetrator and victim, and a reluctance on the part of institutions to recognise the
problem. Despite advances in international humanitarian, criminal and human rights law during
the second half of the 20th century, male victims are let down by a systemic lack of legal
protections, and mechanisms for the promotion of human rights are silent on their plight.

The UK’s Foreign Secretary, William Hague, has stated that, “Human rights are at the very heart
of Britain’s foreign policy”. What can the UK government do to tackle this problem?
Stemple suggests that it would be inappropriate to address the neglect of sexual violence
against men through a new human rights instrument: “Leaving aside current debates about
the efficacy of such instruments as tools for change, the creation of a separate document on
sexual violence against males would be conceptually problematic, resulting in an artificially
sex-bifurcated treatment of rape”.

We agree with Stemple that as crimes of violence and physical subjugation which are aimed
at men, women and children regardless of gender identities, not because of them, a separate
document on sexual violence against men would rely on a somewhat artificial distinction
between different incidents of the same crime, according merely to the gender of the victim.
This is not after all a men’s issue any more than it is a women’s issue. It is a human rights issue.
As such our aim is not on any level to detract from the vital work that has been done, and
is ongoing, towards the recognition and prevention of shocking violence against women and
children. Our aim is simply to advocate gender neutrality in the treatment of victims, so as to
include amongst those being helped the category of victims whose suffering has so far gone
largely unrecognised.

It is worth outlining some of the issues surrounding the efficacy of international legal
instruments. Treaties require a minimum number of state ratifications before they can come
into effect, and many states have not signed or ratified the core human rights instruments.
Mashood Baderin of the School of Oriental and African Studies has distinguished between the
“universality” of human rights, relating to the global acceptance of the human rights idea, and
their “universalism”, or their practical application on the ground. He points out that whilst
all states will claim to support human rights, this does not necessarily translate into domestic
adherence.

Professor Oona Hathaway of Yale Law School has suggested that countries with poor human
rights records appear keener to ratify treaties than those whose records are better. She argues
that some states ratify treaties merely to send a signal about their commitment to the idea,

19
reducing political pressure on the state to uphold human rights practices, and paradoxically
leading to increased violations.

Countries can enter reservations which are accepted if they do not subvert the purpose and
object of the treaty, and it can be difficult to measure the impact of ratified instruments.
Given their binding status, the process of drafting treaties can be drawn out and rancorous,
and treaties tend to contain restrictive provisions on territorial application. The European
Convention on Human Rights for example applies to each state “within its jurisdiction”, and
the International Covenant on Civil and Political Rights applies even more narrowly, “within its
territory and subject to its jurisdiction”.

Nevertheless, we suggest that in the circumstances this clear lacuna can only be filled by a new
instrument which is explicitly focused on men. As it currently stands, the legal framework is
shamefully inadequate in this regard, and a clear statement of intent is needed to demonstrate
the shared desire to combat this example of widespread suffering.

There is an inherent link between sexual violence against men and women – these are incidents
of the same crime aimed at different victims – and an improved understanding of male
victimisation will contribute to a more comprehensive response to sexual violence in general.
The overwhelming focus in international law on women as victims of rape is at odds with the
acceptance amongst charities and academics that sexual violence is not gender-specific. As
such a renewed commitment to helping men can only add to our understanding and ability to
tackle these human rights abuses against all victims, men, women and children alike.

Article 13 of the UN Charter establishes that the UN General Assembly “shall initiate studies and
make recommendations for the purpose of: (…) encouraging the progressive development of
international law and its codification”. The General Assembly is the main deliberative forum of
the UN, and is attended by all state members. It has a number of subsidiary organs, allocating
agenda items relating to human rights issues to its Social, Humanitarian and Cultural Affairs
Committee, commonly known as the "Third Committee". At the sixty-fifth session of the General
Assembly in 2010, the Third Committee considered 56 draft resolutions, more than half of
which had a human rights agenda.

We urge the UK government to work towards an instrument short of a treaty at UN level. This,
we suggest, should take the form of a non-binding Declaration of the General Assembly on
Sexual Violence Against Men in Conflict, which would definitively state the UNs’ opposition to
such violence, and commitment to work towards the protection of victims. As to the artificial
sex-bifurcation of the issue, we believe that the Declaration should affirm that sexual violence
threatens victims regardless of gender, but should make clear that the UN is specifically
committed to combating the historical reluctance to acknowledge and tackle sexual violence
aimed at men.

The UN Secretary-General has argued that “It is my strong belief that when it comes to
sexual violence, we cannot expect peace without justice, reparation without recognition, and
sustainable development without the full empowerment of those who have suffered sexual
violence or are at risk.” The words of the Secretary-General accord with Stemple's hope for
the future: “In a world in which, one hopes, compassion is not a finite resource, new concern

20
for one type of victim, in this case, men and boys, need not signify the lessening of concern for
women and girls. It is not a zero-sum game”.

RECOMMENDATIONS

The UK should work towards a new UN General Assembly resolution which

observes the historical reluctance to recognise sexual violence against male
victims and confirms the UN’s commitment to tackle such violence gender-
neutrally.

The UK should advocate that the Committee Against Torture and the Human
Rights Committee issue General Comments acknowledging the prevalence of
sexual violence against men.

The UK should accept the right of individual petition under the International
Covenant on Civil and Political Rights, the Convention on the Elimination of All
Forms of Racial Discrimination, and the Convention Against Torture.

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23
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Supra note 53, p. 624
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Supra note 53, p. 637
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Supra note 53, p. 619
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Supra note 77, p. 11
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Ibid., p. 10
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Ibid.
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news/latest-news/?view=News&id=361232682

24
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Supra note 53, p. 645
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102
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Kirk & Taylor, Forced Migration Review 27,( 2007), p. 13
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Art 2(1) International Covenant on Civil and Political Right (1966)
105
Supra note 7, p. 260
106
Report of the Secretary-General pursuant to Security Council resolution 1820 (2008) S/2009/362, p 24
at 58.
107
Supra note 53, p. 646

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