From Uganda to The Hague and Colombia: Justice developments regarding international gender-based crimes beyond sexual violence
Written by Teresa Fernández Paredes y Mariana Ardila*
Four years ago, we traveled to Gulu in northern Uganda, the epicenter of the war between the Lord’s Resistance Army (LRA) and the government of Museveni. The recent ruling of the International Criminal Court (ICC) in the case Prosecutor vs. Dominic Ongwen, one of the LRA’s commanders, reminded us of that experience.
Under the command of Joseph Kony, the LRA committed egregious forms of violence against the civilian population, particularly against women. As a matter of organizational policy, the LRA abducted women and girls, holding them captive as sex slaves, “wives”, nurses, cleaners, mothers and soldiers. Many of them became pregnant and gave birth in a highly violent context. We met some of them during our visit to Gulu and had the opportunity to observe first-hand their determination to seek justice and reparations, despite the government’s inaction and the ostracism experienced from their own communities for having been the “wives of the LRA”.
In this blog, we address a few selected points related to the treatment of gender-based crimes in the Ongwen judgment. We also raise several questions to further expand the recognition of these crimes. We highlight the fact that the ICC convicted an accused for two crimes that are not circumscribed to sexual aspects. This is the first ICC case where an accused is convicted of forced marriage, following earlier precedents of the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia. It is also the first conviction for forced pregnancy as a crime against humanity and a war crime (under articles 7(1)(a)-(j) and 8 (2)(b)(i)-(xii) of the Rome Statute).
According to the Rome Statute, the crime of forced pregnancy is characterized by the unlawful confinement (irrespective of the duration or severity) of a woman who has been forcibly made pregnant (before or after confinement), coupled with the intent of i) affecting the ethnic composition of any population or ii) carrying out other grave violations of international law. It is important to note that it is not necessary to show the intent to force the victim to give birth. An accused may be held accountable for the crime of forced pregnancy despite not having been involved in the act of forced impregnation, for example, despite not having been responsible for the sexual violence that led to the pregnancy.
It is worth noting that the ICC’s first conviction for the crime of forced pregnancy is framed under option ii), that is, outside a context of ethnic cleansing. Jointly with Sánchez Parra (2020), we had previously highlighted an earlier decision by the Pre-Trial Chamber in this case that followed the same approach. As noted by Rosemary Grey (2017), we consider it important that progress is being made towards the recognition of the reproductive autonomy and dignity of women as protected values under international criminal law. Conduct that violates these values can be labeled a gender crime under the Rome Statute, without requiring proof of a specific purpose, such as genocidal intent. The ICC's decision in the Ongwen case provides new insights into the legal characterization of reproductive violence, by placing women’s autonomy at the center of the crime.
When explaining the rights protected by the crime of forced pregnancy, the judgment refers to “a women’s right to personal and reproductive autonomy and the right to a family” (para. 2717). When being confined, a woman cannot freely decide whether or not to carry a pregnancy to term. We note, however, that the reference to the violation of the right to a family is curious as the judgment does not provide further explanation. Additionally, the definition of this crime excludes situations where a woman was not forced into pregnancy. It cannot be assumed that because a pregnancy is desired, it will continue to be so during a period of confinement, and the failure of the Rome Statute to acknowledge this situation seems peculiar because the victim’s reproductive autonomy is also violated. Restrictions in the definitions of crimes of reproductive violence, such as this, clearly demonstrate that further progress is needed in this field.
Forced marriage is not defined as a distinct crime in the Statute, and the Court interpreted the crime of “other inhuman acts” to capture such conduct (Article 7.1.k.). It defined this crime as “the inhuman act of forcing a person, regardless of his or her will, into a conjugal union with another person by using physical or psychological force, threat of force or taking advantage of a coercive environment” (para. 2751). The central element, and underlying act of forced marriage, is the “imposition of this status on the victim, i.e., the imposition, regardless of the will of the victim, of the duties that are associated with marriage— including in terms of exclusivity of the (forced) conjugal union imposed on the victim, as well as the consequent social stigma” (para. 2748). The Court recalled that forced marriage does not necessarily require the exercise of ownership over a person, an essential element for the crime of enslavement. It also found that when a concept such as “marriage” is used to legitimize a state that often involves serial rape, victims suffer trauma and stigma beyond that caused by being a rape victim alone.
It is also interesting that the Court briefly acknowledged that forced marriages can result in the birth of children, which “creates even more complex emotional psychological effects on the victim and their children beyond the obvious physical effects of pregnancy and child-bearing” (para. 2748). We consider this acknowledgement interesting because, as Sánchez Parra and Lolacono (2020) have pointed out in relation to the Colombian case, children born in these contexts are not usually recognized as victims of sexual violence. This observation also applies to the context of northern Uganda. The experiences of children born as a result of conflict-related sexual violence are not viewed as distinct experiences within transitional justice processes, because children are usually considered an accessory to their mothers, thus reinforcing the idea of the mothers as victims without agency, or reinforcing the image of women as survivors who have managed to overcome hardship due to their role as mothers. Scholars Eithne Dowds (2019) and Oliveira C. and Baines E. (2020) have acknowledged the legal challenges involved in seeking a response from international criminal law for the well-being of children born of sexual and gender-based violence in conflict, since their birth does not constitute a gender crime in itself, although their conception was marked by an act of sexual violence.
Although it is not a simple process, the Ongwen case begins to open the door for us to (re) think reparations in broader terms in transitional justice processes and include all experiences, dimensions of harm, and individual and collective impacts on women and their children born from forced unions and sexual violence. Reparations should aim to create an environment where the rights of women are sustainably guaranteed, without any negative stereotyping or reinforcing of traditional gender roles, while at the same time giving recognition and visibility to the reproductive role of women. Although the decision in the Ongwen case takes important steps in the quest for justice and truth, it only does so with respect to a specific number of women and within a limited time frame, leaving aside many others who suffered similar harms. Thus, the most tangible impact of the ruling issued in The Hague will be felt in Gulu when reparations are adopted that bring about structural changes in the lives of women, their families and their communities.
In any event, it is undeniable that progress is being made towards a more comprehensive understanding of gender-based violence in the international sphere, where attention has until now been focused almost exclusively on the sexual component of these crimes. Dieneke De Vos (2016) and Cocomá and Laguna (2020) have explored how crimes of a predominantly reproductive nature, such as forced contraception and forced abortion, could be prosecuted under the Rome Statute, and, in so doing, they have invited us to reflect more broadly on reproductive violence. Likewise, as a result of litigation brought by Women’s Link Worldwide, some recent progress was made by Colombia’s Constitutional Court, which recognized female combatants and girl child soldiers who suffered abortions and forced contraception within their own armed groups as victims of serious human rights violations and war crimes, thus opening the door to reparations. There are currently high hopes that this Court’s jurisprudence will be further developed by Colombia’s Special Jurisdiction for Peace (JEP) and Truth Commission. Undoubtedly, the judgement in the Ongwen case and the subsequent rulings on sentencing and reparations in this case will influence developments in this field in the Colombian context.
* Teresa Fernández Paredes is the human rights advisor at the World Organization Against Torture’s Latin American program and the Observatory for the Protection of Human Rights Defenders since 2019. Mariana Ardila is a lawyer with the Legal Division of Women’s Link Worldwide, where she is leading the work on transitional justice in Latin America and Europe. Both are members of ReLeG.
** The opinions expressed in this blog are the sole responsibility of their authors and do not necessarily represent the views of all members of ReLeG.