What Kind of Crime Against Humanity Is Forcible Circumcision?

by Kevin Jon Heller

That question is raised by the ICC’s investigation of the post-election violence in Kenya, which included a number of forcible circumcisions of Luo men.  According to IRIN Africa, although the OPT originally alleged that the forcible circumcision qualified as the crime against humanity “other form of sexual violence” under Article 7(1)(g) of the Rome Statute, the Pre-Trial Chamber reclassified the act as the crime against humanity of “other inhumane acts” under Article 7(1)(k):

In his December 2010 request for summonses for three crimes-against-humanity suspects aligned with President Mwai Kibaki’s Party of National Unity (PNU), ICC Chief Prosecutor Luis Moreno-Ocampo provided evidence of at least nine instances of forced male circumcision in the Rift Valley towns of Nakuru and Naivasha, as well as in Nairobi’s Kibera slum. The violence claimed at least 1,000 lives nationwide and displaced hundreds of thousands between December 2007 and February 2008.

Ocampo initially moved to charge the crime — targeting the Luo ethnic group, which does not practise male circumcision — under “other forms of sexual violence”, with atrocities such as sexual slavery and forced prostitution. But the pre-trial chamber ruled in March that it should fall under “other inhumane acts”, crimes that cause “great suffering” or “serious injury to body or to mental or physical health”.

The chamber blocked an appeal against that ruling in early April, though Ocampo can raise the issue again in hearings scheduled for September or before the trial chamber if cases against the suspects are allowed to proceed.

I think the OTP has the better of the argument.  The Pre-Trial Chamber’s reclassification of the forcible circumcision seems to rely on an outdated notion of sexual violence — namely, that such acts are about sex, not power.  I can’t imagine anyone arguing that female genital mutilation (FGM) is an “inhumane act” instead of a form of sexual violence simply because it is not always motivated by the desire to control women’s sexuality.  Why should male genital mutilation be viewed any differently?  Indeed, the IRIN article implies — by quoting Brigid Inder, the executive director of Women’s Initiatives for Gender Justice — that there is a sexual connotation to the forcible circumcision, because it is designed to undermine Luo cultural identity by emasculating its men:

“In our view, what makes these acts a form of sexual violence is the force and the coercive environment, as well as the intention and purpose of the acts,” she said. “It isn’t simply about the injuries and suffering, although clearly these are also aspects of these crimes. But the forced circumcision of Luo men… has both political and ethnic significance in Kenya and therefore has a specific meaning. In this instance, it was intended as an expression of political and ethnic domination by one group over the other and was intended to diminish the cultural identity of Luo men.”

Inder argues that the OTP did not make a strong enough case for classifying forcible circumcision as a form of sexual violence in its initial filings.  I hope it will do better in September.


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