The International Criminal Court Still Has Work to Do on Gender-Based Crimes

The International Criminal Court recently convicted Dominic Ongwen for the war crimes of rape and forced pregnancy—only the second conviction for gender-based crimes.

The International Criminal Court Still Has Work to Do on Gender-Based Crimes
“In the nearly 20 years since the International Criminal Court was established, violence targeting … women and girls has been an integral tool in nearly every mass atrocity,” writes Hites. Pictured: cyclists in Uganda. (Rod Waddington / Flickr)

The International Criminal Court recently convicted Dominic Ongwen, a former commander in the Lord’s Resistance Army (LRA), of war crimes and crimes against humanity. Notably, this was both the first conviction for forced pregnancy in the court’s history and only the second standing conviction for any sexual and gender-based crimes. While the case establishes a roadmap for the incoming prosecutor of the court to effectively charge and prosecute sexual and gender-based crimes, it also reinforces the unduly burdensome standards applied to reproductive violence.

Ongwen’s case involves the systemic abduction of girls and young women in Northern Uganda, who were awarded like chattel to LRA soldiers. In addition to forced pregnancy, the court charged Ongwen with rape, sexual slavery, forced marriage, enslavement, torture and outrages on personal dignity. Critically, it charged forced pregnancy as a crime against humanity and rape as a war crime.

In the nearly 20 years since the International Criminal Court was established, violence targeting individuals for their perceived responsibility for reproduction—typically cisgender women and girls—has been an integral tool in nearly every mass atrocity. The absence of charges, prosecutions, and convictions for these gender-based crimes up until this point demonstrates the need for greater gender expertise at all stages of cases.

The Court’s judgment in this case acknowledges the uniquely narrow definition applied to forced pregnancy as compared with other crimes under its jurisdiction. Not only must the Prosecutor prove two physical elements—confinement and forcible impregnation—they must also prove that the accused committed the act intentionally and with the specific intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. It is also the only crime in the Rome Statute, which established the court, to include an exception for national legislation.

The court notes that the statute’s prohibition of forced pregnancy was “one of the most difficult and controversial to draft.” It was meant to placate countries that sought to relegate victim’s experiences to an amalgamation of other crimes, such as rape and unlawful detention. More directly, it attempted to appease those who feared accountability for their own restrictive abortion policies. But reproductive autonomy should not be controversial.

The horrific experiences of the seven young girls Ongwen took as “wives”—abducted by the Sinia Brigade, forced into domestic labor, raped, and held against their will—as well as others who endured similar abuse must be fully reckoned with in accountability frameworks. As the Court rightly asserted, the deprivation of sexual and reproductive autonomy resulting from the crime of forced pregnancy is a “distinct and terrible crime.” It does not require such a significant burden of proof to effectively differentiate it from other offenses nor should the fears of repressive regimes be the basis for undue barriers to justice. The Court should be commended for winding that narrow path to accountability in the Ongwen case, but the international community has an obligation to broaden the track for the future.

This case marks a key moment in the movement to center sexual and gender-based crimes in international criminal accountability. The Court previously received criticism for its failure to include charges of sexual and gender-based crimes in indictments, often seeking to resort to later amendments.

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The Lubanga case, like Ongwen, involved a mass abduction of children who were conscripted as soldiers. For girls abducted and subjected to sexual slavery, the case offers a window into how a failure to center gender results in the exclusion of victims from justice and reparations. The Prosecutor in Lubanga failed to include sexual crimes in the indictment, effectively subsuming girls’ experiences.

The Ongwen decision was the culmination of both a years-long pressure campaign from civil society organizations to ensure sexual and gender-based crimes receive adequate attention and the efforts of outgoing Prosecutor Fatou Bensouda to improve the gender-sensitivity of the court.

Against the backdrop of rising international outrage over the forced sterilization of Uyghur women in China and the continued search for justice among Yazidi survivors of sexual slavery, the need for a strong international legal framework to prosecute violations of reproductive autonomy is essential.

ICC Prosecutor Karim Khan, elected earlier this month, must immediately demonstrate his commitment to this critical movement to center gender within the court’s investigations, charges and prosecutions.

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Danielle Hites is the Staff Attorney at the Global Justice Center. She previously worked with the Alliance for Rule of Law Promotion and Alternative Dispute Resolution, the International Justice Resource Center, Lawyers for Human Rights and the Coalition for the International Criminal Court. Danielle received her J.D. with a concentration in international law from Boston University and holds a B.A. in Psychology from Suffolk University.