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”.
It is also the first time in the ICC’s history that there has been a conviction for the crime of forced pregnancy, a milestone for women’s reproductive and bodily autonomy. The importance of these decisions should not be understated and are a careful recognition that the crimes of forced pregnancy and forced marriage fall within the existing Rome Statute framework in the category of ‘other inhumane acts’, with the Court emphasising that “the category of inhumane acts must be interpreted conservatively and … must not be used to expand uncritically the scope of crimes against humanity”.
The Ongwen judgment is an example of successful prosecution strategy, which “placed SGBV crimes at the heart of the case”. For example, the case of Ongwen was the first time the Office of the Prosecutor had filed the crime of forced pregnancy as its own distinct charge in ICC proceedings – meaning that there was no existing ICC legal precedent for this crime. It is also imperative to acknowledge the decades of activism by women’s organisations around the world who continue to fight for accountability for SGBV crimes.
These jurisprudential developments are significant, but they must be seen in context. The ICC has an exceptionally poor record when it comes to SGBV crimes, leading to what scholars such as Louise Chappell have called a “gender injustice cascade”. It is worth remembering that in the 18 years since the Court’s establishment, prior to Ongwen, only two accused had been convicted of SGBV crimes – with one of these convictions resulting in acquittal on appeal. Given Ongwen’s legal team has already signalled their intention to appeal, time will tell whether his SGBV convictions will stand.
What’s next for SGBV victims in the Ongwen case?
Through its Trust Fund for Victims, the Court has a mandate to provide reparations when convictions are awarded and to provide assistance to victims in situations in which the Court is investigating. Reparative measures can include efforts directed at “restitution, compensation and rehabilitation” – importantly, not just limited to compensation – however, are restricted to victims registered to a specific proceeding. In the case of Ongwen, 4095 victims have been registered, spanning all categories of violations for which Ongwen has been convicted, including victims of SGBV. When the judgment was handed down, the presiding Trial Chamber Judge, Bertram Schmitt, paid particular attention to the harm suffered by victims, and in doing so, read aloud the names of dozens of Ongwen’s victims, a judicial gesture which has been lauded as “a stark reminder of the human consequences of Ongwen’s acts”. Following sentence, the next step will be for the Court to award reparations. As there have been convictions on 61 counts, this will be the ICC’s most complex reparations order to date, given that all previous reparations orders issued by the Court have been for fewer than 20 counts.
The practical impact of ICC convictions for victims of international crimes has historically had limited effect. For example, in the case of Lubanga, “no victims have yet benefitted from the reparations order eight years after Lubanga was first convicted and 18 years since the crimes were committed”. Similarly, in the case of Bemba, it was only in April 2020 that the ICC approved the Trust Fund for Victims to implement assistance programs, aimed at providing assistance to those now no longer eligible for reparations following Bemba’s acquittal. This transpired nearly two years after the acquittal and nearly two decades after the alleged violations occurred in the Central African Republic. In the case of Katanga, reparations include an individual symbolic compensation award of US$250 per victim.
A 2019 report authored by REDRESS cites a number of issues for these extraordinary delays, including the lack of a court wide strategy on reparations; staffing gaps resulting in failures to respond to judicial requests in a timely manner and repeatedly seeking extensions for court filings; and difficulties in preparing draft implementation plans (DIPs) which meet the Chambers’ standards. The DIPs submitted by the Trust Fund have faced significant criticism by judges for their lack of concrete proposals, general incompleteness and inaccuracy.
These precedents do not bode well for SGBV victims in the Ongwen case. Notwithstanding the risk of acquittal on appeal, which would nullify any chance of reparations from the Trust Fund, the Court’s victim assistance program does not inspire confidence in its current form. These concerns were echoed by the ICC’s own Independent Expert Review, conducted last year, which found that “the Court’s conceptual and procedural processes for reparations are laden with complexity and uncertainty, which gravely affects the victims’ rights to meaningful participation and reparations”. Without a concrete, gender-responsive and victim-centred reparations strategy, which provides for victim participation in both process and substance, as well as appropriately-funded commitments to provide holistic assistance to victims, the ICC’s jurisprudential achievements begin to ring hollow.
In the Ongwen case, the Court has the opportunity to improve on its track record when it comes to providing effective, adequate and prompt assistance to victims of SGBV. It would be a great shame if the progress made in law fails to translate to making a tangible difference to the lives of those impacted most. As stated by one LRA victim in relation to Ongwen’s conviction: “It doesn’t make me feel happy at all. Looking at the gravity of the crimes and atrocities he committed, what happens to those people he offended? My justice will be to see the lives of the victims changed [for the better]”.
Lucy Geddes is an Australian human rights lawyer and is currently the head of Legal Action Worldwide’s Sri Lanka office. She has previously worked across the civil and criminal law teams at Victoria Legal Aid as well as in private practice. Lucy clerked for Chief Justice Mogoeng of the Constitutional Court of South Africa and for Justice Tarfusser of the International Criminal Court. Lucy was awarded best overall performance in her Masters in Women, Peace and Security at the London School of Economics, which she completed as a Lionel Murphy Scholar.