A Legal First in International Criminal Justice: A Conviction for Forced Pregnancy in the Ongwen Case

On 4 February 2021, the International Criminal Court (ICC) delivered its judgment on the charges against Dominic Ongwen, a former brigade commander in Uganda’s Lord’s Resistance Army (LRA). He was found guilty on 62 counts of war crimes and crimes against humanity. The Ongwen case is a landmark case for several reasons, one of them being the central role of sexual and gender-based crimes (SGBC). Significantly, Ongwen is the first person to be convicted for forced pregnancy. This is a historical first that an international court holds a perpetrator responsible for violating reproductive autonomy of women. This post considers the first interpretation of the crime by the Trial Chamber (TC), the finding in the Ongwen case and its implications.

The Importance of Prosecuting Forced Pregnancy

Forced pregnancy has been a weapon of war used throughout history to ensure the birth of children of an ethnicity other than their mother’s. In spite of experiences of women in Rwanda and the former Yugoslavia, it was never prosecuted. The ICC is the first international tribunal where the crime is proscribed in its statute.  The Rome Statute defines forced pregnancy as “the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law” in Article 7(2)(f). The drafting of the provision was highly contentious, and it is considered to be one of the most controversial crimes in the Statute. This led to a “uniquely narrow definition.” The protected value of the crime of forced pregnancy is predominantly reproductive autonomy, as ICC prosecutors in the Ongwen case reiterated. This protected interest differentiates it from other SGBC in the Statute.

Forced pregnancy inflicts harm on the victim that extends beyond harm caused by other sexual crimes. An unwanted pregnancy brings about life-long consequences. Giving birth to an (unwanted) child is traumatizing. Additionally, unplanned motherhood is problematic, given the responsibilities of having a child. During the pregnancy in confinement, victims might lack facilities to ensure a safe pregnancy and childbirth. The consequences on the health of the woman can be deleterious. Moreover, children born out of such forced pregnancy also face adversity. They are often seen as children from the enemy. Mother and child become subject to marginalization and stigmatization within their community. Such prejudices could be a life-long burden victims are faced daily.

The Judges’ Findings in the Ongwen Case

The Ongwen case was the first in which the Court had to interpret the elements of the crime of forced pregnancy. The LRA was notorious for abducting girls and women to serve as sex slaves and servants to soldiers. Ongwen was convicted of the crime of forced pregnancy in relation to two women, for three pregnancies. Both women testified in the ICC proceedings. One of them birthed two children fathered by Ongwen. Witness P-101 recalled that she was too young, but that she was threatened to be killed if she did not submit. Her pregnancy was unwanted, but she had no other choice.

Regarding the actus reus, the TC confirmed that the pregnancy need not have occurred through sexual intercourse (Judgment, para. 2723). As Ongwen personally raped the impregnated women, the TC found the element of forcible pregnancy satisfied. It also found that the confinement element was satisfied, because the pregnant women were placed under heavy guard and not allowed to leave (Judgment, para 3058). The Chamber’s interpretation of confinement was not very specific; it dealt with the issue in relatively broad terms (Judgment, para 2724).

Regarding Ongwen’s mens rea, the judges found that he acted with intent, given the repeated occurrence of the acts over an extended period of time (Judgment, paras 3060 and 3061). Furthermore, Ongwen was charged with the second form of special intent, carrying out violations of international law. The TC clarified that there is no requirement of intention to keep the woman pregnant (Judgment, para 2728). The fact that the accused committed other crimes in relation to these women, such as rape and forced marriage, indicated that he acted with this intent.

Generally, the Chamber interpreted the scope of the crime in a relatively broad manner. It clarified that forcibly being made pregnant constitutes a part of the actus reus, but that this may occur through artificial means and by others than the perpetrator of the confinement. Additionally, the intent of committing other violations of international law was interpreted in a broad manner, with the Chamber enumerating other crimes rather than engaging in an in-depth analysis of the connection between these crimes and the forced pregnancy (Judgment, para 3061). This has positive implications for future cases, leaving the scope of the crime sufficiently wide. 

Conclusion

To conclude, the ICC’s first conviction for the crime of forced pregnancy is an important step in enhancing accountability for crimes of reproductive violence. It emphasizes that forced pregnancy is neither an amalgamation of rape and confinement, nor a mere aggravating factor of rape. The TC will recognised the gravity of forced pregnancy in its sentence (Sentence, para 317).

The case may be a lost opportunity in terms of the scope of charges, as the Prosecution did not charge forced pregnancy in relation to victims in the Sinia brigade as a whole, as opposed to merely in relation to Ongwen’s direct victims. As these crimes were committed in a systematic manner and that forced wives of other soldiers and commanders in Ongwen’s brigade were also impregnated and gave birth to children, forced pregnancy could arguably have been included in the charges alleging Ongwen’s responsibility as indirect co-perpetrator.

It remains to be seen how the interpretation of the crime will develop in future jurisprudence of the ICC. The crime may be charged in other situations, for example in the Nigeria, where forced pregnancy is listed as one of the potential crimes committed by Boko Haram (Report on Preliminary Examinations, para 254).

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