Concerns About the Non-Inclusion of Sexual Violence Against Men and Boys in The Gambia v. Myanmar

Concerns About the Non-Inclusion of Sexual Violence Against Men and Boys in The Gambia v. Myanmar

[David Eichert is a PhD Candidate at the London School of Economics.]

On 23 January 2020 the International Court of Justice made history when it issued provisional measures in the case of The Gambia v. Myanmar, ordering Myanmar to halt its campaign of violence against the Rohingya. While the final outcome of the case remains very much unknown, the fact that the Rohingya have been given such a major world platform is monumental in its own right. Moreover, the role of The Gambia in producing such an early outcome is also noteworthy, especially given The Gambia’s history and position in world politics.

However, it is concerning how the lawyers for The Gambia chose to describe the sexual violence committed by Myanmar. In particular, The Gambia’s language seems to suggest that sexual violence was only committed against Rohingya women and girls, ignoring the fact that sexual violence against men and boys (SVAMB) was also a widespread tool of genocide. For example, in their submission to the Court on 11 November 2019, The Gambia only mentions women and girls when discussing sexual violence, arguing that

“Myanmar has acted with the intent to destroy in whole or in part the Rohingya as a protected group under the Genocide Convention by… raping and inflicting other forms of sexual violence on women and girls within the group;” (para 116).

This is to be compared with the allegation in the very next line of the submission, which does include men as victims:

“subjecting Rohingya men, women and children to torture, beatings and other forms of cruel treatment for the sole reason that they are members of the Rohingya group…” (para 116).

The Gambia’s lawyers made similar statements during oral arguments before the ICJ in December 2019. For example, Andrew Loewenstein of Foley Hoag, speaking on behalf of The Gambia, offered multiple examples of the horrific sexual violence committed against Rohingya women, concluding that “[w]omen and girls were subjected to ‘rape, gang rape, sexual mutilation and sexual humiliation’” (Section III, para. 28). At no point during these oral arguments did any lawyer for The Gambia mention the use of SVAMB by Myanmar.

Evidence of SVAMB in Myanmar

This exclusion is especially surprising given the fact that The Gambia relies heavily upon the findings of the UN Independent International Fact-Finding Mission on Myanmar, which extensively documented how SVAMB was a widespread and significant element of Myanmar’s campaign against the Rohingya. In addition to describing how military units would systematically abduct and rape men and boys as young as 12 years old, the Fact-Finding Mission also reported how genital mutilation, genital beatings, sexual torture, forced nudity, sexual humiliation, and other forms of sexual violence were used against men and boys (e.g., paras. 159-166, 174-178). Information about these crimes was clearly presented in Fact-Finding Mission publications, with one report concluding in 2018 that

[w]omen and girls were not the sole victims and survivors of sexual violence during the “clearance operations”. The Mission received credible reports of sexual violence against men and boys, including rape, genital mutilation and sexualised torture, sometimes leading to death… During detention, which was prevalent during the “clearance operations”, there are consistent credible reports of men and boys being subjected to sexual violence, including rape, sexualised torture and humiliation by authorities or in their presence (para. 939).

Similarly, a 2019 report from the Fact-Finding Mission stated that

[v]erified reports from survivors and witnesses of sexual violence [against men] indicate that the beating of genitals and penetration of their bodies with objects such as bamboo sticks, branches from trees, metal objects and batons were rampant during rapes and other sexual violence… The Mission concludes on reasonable grounds that rape and other forms of sexual torture of men in Kachin and Shan States were intentionally inflicted to cause severe mental and physical pain or suffering and were perpetrated by Myanmar government officials (paras. 164, 179).

Given the clear evidence of SVAMB being used as part of Myanmar’s campaign against the Rohingya, it is unclear why The Gambia’s lawyers felt the need to restrict their allegations of sexual violence to only women and girls. While it is true the Fact-Finding Mission does not explicitly name the use of SVAMB against the Rohingya as “genocide,” the details contained in its reports are clear examples of the crime. Notably, the reports reveal how Myanmar used genital beatings and other forms of sexual violence to cause “serious bodily or mental harm” and impose “measures intended to prevent births” during their clearance operations (Genocide Convention, Art. II (b) & (e)). As such, it would be a missed opportunity for The Gambia not to use all of the evidence available when asserting that crimes of genocide occurred.

The Importance of Recognition

The accidental or purposeful omission of SVAMB from The Gambia’s submissions is also concerning given the history of SVAMB being ignored or misunderstood in international criminal law. Notably, SVAMB is often included in criminal charges before international courts but treated as non-sexual in nature (i.e. charged as an “inhumane act” or “torture”), while sexual violence against women is more often than notcorrectly classified as “sexual.” Take, for example, the Kenyatta and Muthaura cases before the ICC, where charges of forcible circumcision were held to not be “sexual” by a Pre-Trial Chamber (para. 27). Similarly, the Truth and Reconciliation Commissions in South Africa, Sierra Leone, and Peru all frequently classified SVAMB as nothing more than “torture” or “severe ill treatment,” leading to a flawed post-conflict narrative about the true extent of gender-based violence (pgs. 15-16).

SVAMB is also sometimes ignored altogether, such as the Brđanin case before the ICTY. In that case, even though judges were presented with evidence of soldiers attempting to force a man and a woman to have sex, in the end the ICTY only ruled that “the threat of rape constituted a sexual assault vis-a-vis the female detainee,” but not the male detainee (para. 516). 

All of this is not to say that the sexual violence committed against Rohingya women and girls was not a central component of Myanmar’s genocidal violence. Given the prevalence of sexual violence against women (and particularly the gang rape of women), its inclusion in The Gambia’s submission is crucial. Nevertheless, SVAMB was also part of Myanmar’s campaign to drive out the Rohingya, and its recognition and restitution are vital for the many Rohingya men who were attacked.  

Recognizing the sexual violence committed against Rohingya men and boys is particularly important given the general narrative of denial coming from Myanmar regarding the military’s sexual crimes. For example, in addition to denying the use of sexual violence on a local level (such as the politician who claimed that Rohingya women were too dirty and unattractive to be raped), Myanmar’s official government position also seems to be one of denial, with Aung San Suu Kyi choosing not to address allegations of sexual violence during her time before the ICJ (Section I, para. 7). Accurately describing the true scope of sexual violence against the Rohingya is therefore essential to combatting Myanmar’s denials and disinformation campaigns.

Male victims of sexual violence also frequently face greater challenges when trying to obtain societal and medical recognition of their experiences, which can further isolate them from their communities. Moreover, unlike international law, Myanmar’s Penal Code does not currently criminalize male rape or other forms of sexual violence against men (para. 264). As such, having additional international recognition of the use of SVAMB is vital for the many male victims who risk going unheard if their experiences are ignored.

International courts like the ICJ are important actors in the creation of narratives surrounding violence. The exclusion of male victims of sexual violence at this stage in the proceedings could very well have an impact on whether male victims are included in the Court’s final judgment, which would have serious implications for the news headlines, legal histories, and popular narratives about the Rohingya. As such, it is vital that The Gambia emphasize the full range of sexual crimes committed against the Rohingya in future documents, drawing from the same UN reports they have already been using. Such inclusion will only strengthen their case by providing an even more complete picture of the brutal violence used against the Rohingya.

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Asia-Pacific, Courts & Tribunals, Featured, General, International Criminal Law, International Human Rights Law, International Humanitarian Law, Organizations, Public International Law, Use of Force
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