The International Criminal Court faces a difficult history of sexual violence in Sub-Saharan Africa, and a chance to reconsider this under-discussed atrocity
NAIROBI, Kenya -- The mob, members of an outlawed gang, blindfolded Walter Odondi with a strip of cloth and steered him through the narrow alleys of Nairobi's Kibera slum, slapping him with the flat sides of their machetes as they went. They frog-marched the frightened 16-year-old for half an hour before stopping at a clearing just outside the slum, not far from the Nairobi Dam. Standing there, Odondi could hear the sound of machetes being sharpened on stones. As he made one last attempt to flee, two men grabbed his limbs and threw him to the grass.
Six days before, on December 30, 2007, a close presidential race had been called in favor of the ethnic Kikuyu incumbent, Mwai Kibaki. His main challenger, Raila Odinga, an ethnic Luo, had been leading in some earlier polls, and contested the result. As accusations of fraud flew from both camps, the escalating verbal battle filtered down to their ethnic constituencies. The confrontation became physical in several parts of the country, especially in Kibera, where hundreds of thousands of Kenyans from an array of tribes live in sprawling settlements of mud, wood, and scrap metal. All told, more than 1,000 people died in the post-election fighting, and more than 500,000 were displaced.
On January 5, 2008, the day of his run-in with the mob, Odondi had ventured out in search of food, and was walking alone when the gang spotted him. After one member of the gang, composed exclusively of Kikuyus, identified Odondi as a Luo (that his surname begins with 'O', as in Obama, is one giveaway), they grabbed him. Odondi would soon be subjected to one of the grisliest acts recorded during the violence.
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After a few minutes at the clearing, the mob removed Odondi's blindfold, and then his clothes. "First, they took off my pants, and they started mocking me because I was wearing only my underwear. And they ripped off my underwear using a panga," Odondi recalled recently, using another word for machete.
"When the men had pinned me down, the man with the panga pulled my foreskin out and started to play with it. He would slice it a little, and then he started mocking me, and then he would slice a little more, and then mock me some more.
"This cutting lasted for five minutes, and it was the greatest pain I have ever felt in my life. It felt like a million little pins pricking my manhood."
Similar attacks were recorded elsewhere in Kibera and in other parts of the country, including the volatile Rift Valley, up until late February 2008, when Kibaki and Odinga reached a power-sharing deal. The lack of reporting on the part of victims, however, has complicated efforts to arrive at a national total. A government inquiry noted, for instance, that many victims in the Rift Valley were "too traumatized" to come forward.
"It was intended as an expression of political and ethnic domination by one group over the other."
While Odondi and some other Luos, a tribe that doesn't traditionally practice male circumcision, can describe their individual experiences of forced circumcision with marked candor, the International Criminal Court (ICC) is still struggling to find words for the crime. Chief Prosecutor Luis Moreno-Ocampo, who is pursuing crimes against humanity charges against six prominent Kenyans in connection with the post-election crisis, moved in December to charge the crime under "other forms of sexual violence," the category used for atrocities such as sexual slavery and forced prostitution.
But judges disagreed, ruling in March that the crime should fall under "other inhumane acts," a separate category of crimes that cause "great suffering" or "serious injury to body or to mental or physical health."
The distinction is by no means strictly academic, according to local advocates for sexual violence victims, who argue that labeling forced male circumcision as a form of sexual violence could raise awareness of the crime and make comprehensive treatment more widely available.
Brigid Inder, executive director of Women's Initiatives for Gender Justice (WIGJ), a Hague-based group that monitors the ICC, said she sees the reclassification as part of a troubling trend -- one in which the court has failed to fully address the sexual violence components of mass crimes.
Upon its drafting in 1998, the Rome Statute, the ICC's founding treaty, drew praise from women's rights activists for its emphasis on sexual and gender-based violence, and in particular its inclusion of rape and other sexual violence offenses within the categories of crimes falling under the court's jurisdiction.
These crimes have been a major component of the court's work. Of the 13 cases to come before the court so far, seven have addressed sexual violence, Inder said. Sexual violence charges have been included in all "situations," she said, where arrest warrants have been issued, save for Libya. And even that exception might change: Ocampo announced in June that he was likely to add rape to the charges against Muammar Qaddafi, who is suspected of encouraging his troops to use rape as a weapon.
But these facts belie a more checkered record for the ICC on sexual violence, Inder said. According to WIGJ research, 33 percent of sexual violence charges in cases that have reached the confirmation stage -- when judges decide whether to commit suspects to trial -- have been dismissed. WIGJ attributes this to inadequate filings or insufficient evidence from the prosecution and, on occasion, questionable rulings from judges.
"There is no other category of charges which consistently faces these challenges before the ICC," Inder said.
The ICC cases that have made it to trial to date have largely frustrated those pressing for sexual violence prosecutions. In the first case, that of Congolese militia leader Thomas Lubanga, the charges filed by Ocampo were limited to Lubanga's recruitment and deployment of child soldiers, despite claims that his forces were involved in widespread rape. During the trial, many witnesses testified to sexual violence against young girls recruited into Lubanga's Union of Congolese Patriots; one soldier told the court in June 2009 that the girls "were used for everything."
The court's second Congo case, involving warlords Germain Katanga and Mathieu Ngudjolo Chui, has produced charges of rape and sexual slavery. But WIGJ claims that the sexual violence charges facing the two men are "not comprehensive," failing to take into account the number of victims and the scale of the crimes committed by the suspects' militias. The group has also expressed concern about the strength of the prosecution's evidence to support what charges have been brought.