Kather, Alexandra Lily

Nassar, Amal

English

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The Ongwen case: A prism glass forthe concurrent commission of gender-based crimesAlexandra Lily Kather, Amal Nassar 2021-03-15T13:00:41In a long-anticipated judgment at the International Criminal Court (ICC), TrialChamber IX found Dominic Ongwen, a former commander in the Lord ResistanceArmy (LRA), guilty of 61 counts of war crimes and crimes against humanitycommitted in Northern Uganda, including 19 counts of sexual and gender-basedcrimes (SGBC). Unlike earlier cases at the ICC in situations where SGBC wasprevalent, the charges went beyond rape and other forms of sexual violence toinclude charges tried at the ICC for the first time, namely forced marriage as aninhumane act and forced pregnancy.This commentary will reflect on the significance and shortcomings of the Ongwencase from the perspective of developing jurisprudence on forced marriage andforced pregnancy at the ICC and beyond.Recognising the gendered, non-sexual dimensions of forced marriage (Counts50 and 61)As forced marriage is not an explicitly recognised crime in the Rome Statute, itslegal characterisation is at the discretion of the Prosecutor (OTP), and ultimately,the Chambers. Earlier – yet limited – litigation of this crime, first at the Special Courtfor Sierra Leone (Prosecutor v. Brima, Kamara and Kantl and Prosecutor v. Sesay,Kallon and Gbai) and later at the Extraordinary Chambers in the Court of Cambodia(Prosecutor v. Nuon and Khieu, Case 002/02) laid an important foundation inasserting that forced marriage is not exclusively a sexual crime and therefore, not tobe equated with the crime of sexual slavery.In the present case, Prosecutor v Dominic Ongwen, the Prosecutor brought – for thefirst time – explicit charges of forced marriage as an inhumane act pursuant to Article7(1)(k) of the Rome Statute. Thereby, the Prosecutor put the legalcharacterisationof this crime again in the spotlight. For one, this was significant considering that theICC OTP’s 2014 Policy Paper on Sexual and Gender-Based Crimes is silent on thiscrime, which could be taken as a sign that the OTP considers forced marriage tobe captured in the crime of sexual slavery.Additionally, in Prosecutor v. GermainKatanga and Mathieu Ngudjolo Chui, acts involving forced marriage were onlycharged and confirmed as sexual slavery (paras. 431, 434-435). As such, the explicitforced marriage charges brought in the Ongwen case represented a move awayfrom the limited consideration of forced marriage, and an opportunity to explore itsgendered dimensions.- 1 -On multiple occasions, starting from the confirmation phase, Ongwen’s defencesubmitted that forced marriage is not a crime in the Rome Statute, and that itshould not be charged as an inhumane act but be subsumed in the charge ofsexual slavery, as has previously been done at Prosecutor v. Germain Katangaand Mathieu Ngudjolo Chui (paras. 128-130). The Ongwen pre-trial Chamber,however, confirmed the Prosecutor’s position that forced marriage differs fromsexual slavery “in terms of conduct, ensuing harm, and protected interests” (para.92). The Chamber recognised that forced marriage will generally be committed insituations where victims are enslaved by the perpetrator, including sexually. Its keyfeature, however, is the imposition of ‘marriage’ on the victims, the duties associatedwith it, and the status of being the perpetrator’s “wife” (paras. 91-95).The Ongwen Trial Chamber elaborated in its judgment that while forced marriageimplies the imposition of a conjugal association, it “does not necessarily requirethe exercise of ownership over a person, an essential element for the existence ofthe crime of enslavement” (para. 2750). The Chamber additionally noted that theimposition of a marital status on a victim is not captured in the crime of rape either,and that this specific status results in victims’ suffering of “trauma and stigma beyondthat caused by being a rape victim alone” (ibid).While the Chamber underscored the social, ethnic and religious effects of forcedmarriage and its serious impact on victims (para. 2748), it left the gendered harmand impact unexplored and therefore, unrecognised. This represents a missedopportunity considering the intersecting grounds that underpin the commission of thiscrime, particularly gender grounds, and link it to other crimes that were committeeconcurrently.Looking beyond sexual violence perpetrated parallel to or consequential of forcedmarriage helps in furthering the understanding of the gendered nature of this crime,particularly when intersecting with religious and ethnic dimensions. For instance,in situations such as Syria and Iraq, enslavement, sexual slavery and forcedmarriage against females of religious minorities have been instrumentalised byarmed groups with extreme ideologies as a tool for gender and religious persecution,both manifesting in forced marriage. There, forced marriage was both a tool foroperationalising conversion in religion, where a consequence of such conversionis marriage compatibility, and for persecuting women based on their gender andtreating them as inferior to men. The combination of crimes committed againstboth females and males is an attack against their religious and group identity, in aninherently gendered manner.Navigating a narrow definition: The first consideration of forced pregnancy atthe ICC (Counts 58 and 59)The Ongwen Trial Chamber pioneered international criminal jurisprudence byconvicting a defendant, for the first time, of the crime of forced pregnancy as both acrime against humanity and a war crime, pursuant to Article 7 (1)(g) and Article 8 (2)(vi) Rome Statute, respectively.- 2 -The crime of forced pregnancy requires not only the two material elements ofconfinement and forcible impregnation; but also the mens rea requirement thatthe perpetrator have committed the crime with the intent to confine the womanforcibly made pregnant as well as the specific intent of either “affecting the ethniccomposition of any population or carrying out other grave violations of internationallaw” (Article 7 (2)(f) Rome Statute, Element 1 of Article 7(1)(g)-4 EoC).The Rome Statute appears to additionally require that the perpetrator havecommitted the crime with the intent to keep the woman pregnant. With referenceto the drafting history and related discussions (para. 2728), the Ongwen TrialChamber takes the opposite stance. It clarifies that “the crime of forced pregnancyconsists in the confinement of a forcibly pregnant woman in order to carry out othergrave violations of international law, regardless of whether the accused specificallyintended to keep the woman pregnant” (para. 2729). The Chamber also assertsthat the effects of the women’s confinement is the deprivation of their reproductiveautonomy (para. 2722).In its assessment of the material element, the Ongwen Trial Chamber held that theconfinement of the two forcibly pregnant women was due to their placement underheavy guard and their understanding that they would be killed if they tried to escape(para. 3058). While the mens rea element was met as a result of the nature andsustained character of the acts by Ongwen over a long period of time (para. 3060),the specific intent was reflected in the fact that the women had been forcibly madepregnant by Ongwen “with the intent of sustaining the continued commission ofother crimes” against them, especially crimes that are part of the identified patternof sexual violence, namely forced marriage, torture, rape and sexual slavery (para.3061).The narrow definition of the crime of forced pregnancy has its origins in thepatriarchal oppression countering reproductive justice demands in the late 90s, andsadly, still today. It is a reflection of the patriarchal fear and consequential backlashthat criminalising forced pregnancy may be understood as interfering with respectivenational laws criminalizing abortions. The political nature of the high threshold of thiscrime is rooted in its drafting history and related discussions, as was duly noted bythe Ongwen Trial Chamber (para. 2728).The commitment to account for the two counts of forced pregnancy should beapplauded. Yet, the case fails to expressly explore the nexus between forcedpregnancy and other crimes that were committed concurrently, including forcedmarriage and sexual slavery, by failing to acknowledge the gender ground that iscommon to their commission.ConclusionThe Ongwen Trial Chamber’s judgment was handed down at the backdrop of adecade’s long absence of effective accountability for survivors of gender-basedcrimes, including sexual violence. It enhances jurisprudence on gender-basedcrimes by examining previously uncharged crimes in combination with previouslycharged sexual crimes through a prism glass. Yet, the prism glass has not been- 3 -used to its full potential since the gender stereotypes and gender hierarchies thatmotivated the commission of these crimes, as well as their socioeconomic impact onwomen and girls, have been left unexplored.The OTP’s prosecution team in the Ongwen case has taken a long stride for theCourt in finally addressing previously overlooked sexual and gender-based crimesagainst the common, unfortunate myth that they would be ‘too hard’ to prove. Yet,a noticeable gap in the OTP’s case is the absence of the charge of persecutionon gender grounds as a crime against humanity pursuant to Article 7(1)(h) RomeStatute. Charging the conduct of forced marriage, forced pregnancy and sexualslavery accumulatively with gender-based persecution would have cast profoundrecognition on the discriminatory intent towards women on the basis of their gender.That intent underpinned the LRA’s treatment of and crimes against women and girls.The absence of the charge of gender-based persecution in the Ongwen case ispart of a broader challenge to recognise and prosecute this crime. No suspect hasfaced this charge until 2019, when the OTP included persecution on gender groundsamong the charges against Al-Hassan. Al-Hassan’s case, and other preliminaryexaminations and investigations where persecution on gender grounds is gainingrecognition, all offer a long overdue examination of the gender grounds that leadto the targeting of women and girls, as well as men and boys, in the commission ofcrimes.- 4 -

The Ongwen case: A prism glass for the concurrent commission of gender-based crimes

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The Ongwen case: A prism glass for the concurrent commission of gender-based crimes

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