Trial Chamber IX of the International Criminal Court recently handed down judgment in the case of Dominic Ongwen. Ongwen was convicted of 61 counts of war crimes and crimes against humanity and the Court paved new ground in its jurisprudence of sexual and gender-based violence (SGBV) crimes. This is an area where the Court has historically had a very poor record. This piece discusses these significant jurisprudential developments and then considers what is next in store for SGBV victims in this case.
On 4 February 2020, Trial Chamber IX of the International Criminal Court (ICC) handed down judgment in the case of former child soldier turned Lord’s Resistance Army (LRA) commander, Dominic Ongwen. While the Court’s sentence is still to come, Ongwen was convicted of 61 individual charges of war crimes and crimes against humanity for atrocities perpetrated in Uganda between 2002 and 2005 – the highest number of convictions for any accused before the Court to date. Already heralded as a landmark judgment, the ICC paved new ground in its jurisprudence on sexual and gender-based (SGBV) crimes. Notably, there were multiple sexual and gender-based violence (SGBV) convictions, including: sexual slavery as crime against humanity and war crime, rape as crime against humanity and war crime, forced pregnancy as crime against humanity and war crime, and forced marriage as crime against humanity.
It is the first time the Court has held that forced marriage constitutes a crime against humanity, as a distinct crime, under the umbrella of ‘other inhumane acts’. This development is important, as there has been conjecture in recent years as to whether forced marriage should be subsumed within sexual slavery or whether it should be considered a crime against humanity in its own right. In a crucial step forward in SGBV international criminal justice jurisprudence, the Ongwen judgment rebuffed the Defence’s assertion that “forced marriage is not a crime under the Rome Statute”. Instead, the Court emphasised the unique harm of forced marriage, asserting that it thus constitutes a separate crime, holding that: “the conduct underlying forced marriage – as well as the impact it has on victims – are not fully captured by other crimes against humanity”. In particular, the Court distinguished the harm of forced marriage from the crimes of rape and sexual slavery. The Court held that these crimes all exist independently of each other, noting that “forced marriage implies the imposition of this conjugal association and does not necessarily require the exercise of ownership over a person” (essential for a crime of enslavement) and the crime of rape “does not penalise the imposition of the ‘marital status’ on the victim”.