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.
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.
In the court's third case, against former Congolese Vice President Jean-Pierre Bemba for atrocities committed in the Central African Republic in 2002 and 2003, the pre-trial chamber confirmed charges of rape as a crime against humanity and as a war crime. But the court dismissed charges of rape as torture and as "outrages upon personal dignity," basing its decision partly on what it says was insufficient evidence and "imprecise pleading" from the prosecution. WIGJ argues that the practice of "cumulative charging" -- bringing multiple charges with respect to one crime, in this case rape -- is specifically provided for in the Rome Statute, and is important for covering all dimensions of sexual violence.
Inder said that similar problems with prosecution filings, in particular a failure to provide enough evidence to ensure that charges are confirmed, could have triggered the reclassification of forced male circumcision in the Kenya case. The filings for the case claimed that the acts were "sexual in nature," but failed to elaborate on the specific elements that made them so. Ocampo's office did not respond to several requests for comment.
"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," Inder said. "It isn't simply about the injuries and suffering, although clearly these are also aspects of these crimes."
The "political and ethnic significance" of forced male circumcision in the Kenyan context, she said, makes it much more than just circumcision. "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," she said.
Forced circumcision in Kenya did not become such a widespread problem overnight. Grace Wangechi, executive director of the Gender Violence Recovery Center in Nairobi, said that, in some parts of Kenya, tribes that forgo male circumcision have long been targeted for forced circumcision by those who view the practice as an essential rite of passage.
For the majority of tribes in Kenya, the circumcision ceremony, held when boys are 13 or 14 and have completed their Class 8 exams, marks the assumption of their roles as men. "You're now expected to engage in manly activities," Wangechi said. "One could be called to sit in on discussions with other men about inheritance issues, property issues, and other topics."
"No one looks at your age; they look at whether you've gone through the rite of passage. It's that significant."
In some tribes, she added, newly circumcised boys "are expected to have a sexual relationship to prove they've entered into manhood."
Despite the ingrained discrimination -- and periodic bouts of violence -- targeting uncircumcised men in some areas, the issue receives little public attention. "No one has ever talked about male circumcision. It's just not visible," Wangechi said.
Ocampo can present new evidence about forced male circumcision during the 2007 and 2008 crisis at confirmation hearings scheduled for September. Wangechi said a subsequent decision by judges to reclassify forced male circumcision as a form of sexual violence "would have a huge impact" on how the crime is viewed in Kenya, and could perhaps draw widespread attention to it for the first time. With this heightened attention, she added, could come expanded access to treatment at health centers, provided the government begins to fully grasp "the magnitude of the assault."
Questions of how to view and respond to forced male circumcision are likely to assume renewed urgency in the run-up to elections next year, with Odinga, who became prime minister under the power-sharing deal, widely viewed as a top candidate for the presidency again. Wangechi said there was no reason to believe the issue of circumcision has become any less salient politically, as many Kikuyus remain as wary as ever of being governed by a kihii -- the Kikuyu word for "uncircumcised boy."
It was, presumably, this very sentiment that Mwangi Kiunjuri, a Kenyan assistant minister for public works, was looking to exploit while speaking at a political rally earlier this year in the Kikuyu heartland of Central province. After criticizing Odinga directly in the Kikuyu vernacular, he declared: "Let me tell you, kihiis are not invited to dowry negotiations because, as you know, boys will always take time to sing their play songs. A kihii's goings are only ended when he faces the knife."
Referring to kihiis in this manner, Wangechi said, was sure to rile up most Kenyan crowds. "If you call a Kikuyu man that, you're dead -- literally," said Wangechi, who is part Kikuyu herself. "So you can imagine that when it's used on an adult male, crowds will respond to that. Just that word alone is more than enough to cause chaos in the country."
Few people understand the political dimension of forced male circumcision better than Caroline Anyango, a 31-year-old who lives in the Rift Valley, a staging ground for much of the post-election violence. Her 40-year-old Luo husband ran for a councilor position on Odinga's Orange Democratic Movement ticket in 2007, making him an especially visible target for Kikuyu mobs.
On January 26, 2008, as violence peaked in the area, the couple and their three children sat at home listening to a radio report on attacks at nearby estates. During the broadcast, a group of 20 men broke down the door to their home, found Anyango's husband hiding in a bedroom, and sliced off his foreskin with a panga.
"We were all forced to watch, including the children," said Anyango, who asked that her name be changed for fear of reprisals. "They were saying that until all the Luos are circumcised they can't take part in the political process."
Somehow, her husband managed to break free and run from the house. But the mob, joined by about 20 other men waiting outside, chased him for about 200 meters to a disused quarry that had been filled with water. Anyango had a clear view as her husband's genitals were chopped off entirely.
"It was at that point that my husband threw himself into the quarry, maybe because he could not take the pain," she said. The body was never recovered.