Can the ICC prosecute forced contraception?

A recent New York Times article on the enforcement of contraception by fighters of Islamic State to prevent Yazidi women and girls held as sex slaves from becoming pregnant, once again underscored the broad range of sexual and reproductive violence committed against women and girls in conflict. As I wrote elsewhere in a longer version of this post, a question that immediately popped into my mind reading this was: does international criminal law, as we know it, have the tools to capture this harm, and how can it address such reproductive violence?

Although Iraq is not a State Party to the Rome Statute, let’s assume for a moment that the International Criminal Court (ICC) could (hypothetically) exercise jurisdiction over crimes committed by ISIS fighters in Iraq. How could we charge this forced use of contraception?

The Rome Statute criminalises a broad range of sexual and gender-based crimes, but only two specifically capture reproductive harm (although all forms of sexual violence can have serious, long-lasting reproductive consequences): forced pregnancy, and enforced sterilisation. Enforced sterilisation as either a war crime or crime against humanity means the deprivation of a person’s biological reproductive capacity without their genuine consent. On the face of it, this might cover forcing Yazidi women and girls to take contraception. However, the Elements of the Crimes specify that enforced sterilisation “is not intended to include birth-control measures which have a non-permanent effect in practice”.

Although it could potentially be charged it as genocide “by imposing measures intended to prevent births”, strong evidence would need to be submitted that the acts were committed with specific genocidal intent, i.e. with “intent to destroy, in whole or in part, a national, ethnical, racial or religious groups, as such”.

Then what about a charge of other forms of sexual violence? Under the Rome Statute, other forms of sexual violence constitute: “… [the commission of] acts of a sexual nature against one or more persons or caus[ing] such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion…”. Classifying forced contraception as “other forms of sexual violence” thus depends on what determines whether an act is of a sexual nature. The women and girls were forced to take contraception in order for them to “remain available for sex”. Suspending their reproductive capacity was thus a critical component of the conditions that enabled rape (i.e. an act of a sexual nature) to take place. As such, if we conceptualise the rationale for the specific act of forced contraception as the ‘sexual nature’ part of the definition, forced contraception could be charged as “other forms of sexual violence”.

However, judges at the ICC have previously ruled that penile amputation – in effect, depriving men of their biological reproductive capacity – did not constitute acts of a sexual nature (note: in that case, the acts were not charged as enforced sterilisation by the Prosecution, but as other forms of sexual violence). While that decision has been heavily criticised, it does underscore that there is no clear understanding (yet) as to what “of a sexual nature” means under the Rome Statute.

The most likely charge, therefore, seems to be “other inhumane acts” as a crime against humanity under article 7(1)(k). Under this same article, the Office of the Prosecutor has charged Dominic Ongwen with forced marriage, a crime also not specifically provided for in the Rome Statute. This catchall provision could thus become an important feature in international criminal law to respond to and address new and emerging forms of violence against women in conflict not currently captured by the law. However, unless and until the ICC acquires jurisdiction over the crimes committed by ISIS, this discussion on the prosecution of forced contraception for Yazidi women and girls is one we can only have in the abstract.

Why we should be watching the ICC on 21 March

On 21 March 2016, Trial Chamber III of the International Criminal Court (ICC) will deliver the trial judgment in the case against Jean-Pierre Bemba Gombo (Bemba). It will be an important day in the life of this now 14-year-old institution. If Bemba is convicted as charged, he will not only be the first military commander to be convicted for crimes committed by troops under his command, but it will be the first conviction at the ICC for sexual violence. Both issues have been the subject of fierce litigation.

Command responsibility

Bemba stood trial as President and Commander-in-Chief of the Mouvement de libération du Congo (MLC) for five counts of war crimes and crimes against humanity committed by MLC soldiers in the Central African Republic (CAR) in 2002-2003. The MLC had entered the CAR to assist then CAR President Ange-Felix Patassé to suppress an attempted military coup. There, the MLC soldiers are alleged to have engaged in a campaign of pillage, murder, and rape against the civilian population. While he did not commit these crimes himself, Bemba stood trial because “he knew or should have known” that his troops were committing these crimes, and “did not take all necessary and reasonable measures within his power to prevent or repress their commission”. He is the first person to have been charged at the ICC with command responsibility under article 28 of the Rome Statute.

This mode of liability, however, was disputed. During the confirmation of charges hearing in 2009, the Prosecution originally submitted that Bemba was responsible as a co-perpetrator under article 25(3)(a). When the Pre-Trial Chamber, adjourning the confirmation hearing, indicated that the evidence appeared to suggest a different mode of liability, the Prosecution amended the charges, bringing both article 25(3)(a) and article 28 in the alternative. Amnesty International was subsequently accepted as amicus curiae on the issue of superior responsibility. The Pre-Trial Chamber eventually confirmed charges against Bemba under article 28, finding substantial grounds to believe that he “knew that MLC troops were committing or were about to commit crimes”.

In September 2012, the mode of liability was again the subject of discussion, this time following a Trial Chamber decision to use the controversial Regulation 55. Whereas the Pre-Trial Chamber had only confirmed charges on the basis that Bemba “knew” crimes were being committed, the Trial Chamber notified the parties and participants that it may consider the alternate form of knowledge, namely that “owing to the circumstances at the time, … [he] should have known that the forces … were committing or about to commit such crimes”. The Defence objected and sought leave to appeal, which the Trial Chamber rejected. After further back-and-forth between the Defence and the Chamber concerning the need for additional investigations, the Trial Chamber reiterated in a decision in 2013 that it had not yet made a “formal decision” on the recharacterisation. It reserved judgment on the matter for its article 74 decision. The question is thus likely to be addressed extensively in the upcoming trial judgment, and will hopefully provide important clarification on the responsibility of military commanders for the actions of their troops and for failures to prevent, repress or punish the commission of crimes.

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Confirmation of charges hearing in Dominic Ongwen case: hopeful signs for gender justice?

From 21 to 27 January 2016, the confirmation of charges hearing in the Dominic Ongwen case was held at the International Criminal Court (ICC). It is an important case for many reasons, one of which is this post’s subject: the case includes a high number of sexual and gender-based violence (SGBV) charges, which, if confirmed, would be the broadest range of such crimes ever to come to trial at the ICC. It would certainly illustrate that the positive trend in this respect that started with the Ntaganda case continues, and would consolidate important case law on these crimes.

Dominic Ongwen, an alleged senior commander in the Lord’s Resistance Army (LRA), is charged with responsibility for 70 counts of war crimes and crimes against humanity committed by the LRA in various locations in Northern Uganda from at least 1 July 2002 to 31 December 2005. Importantly, the charges include eight counts of SGBV: rape, torture, and sexual slavery as both war crimes and crimes against humanity, and forced marriage and enslavement as crimes against humanity. This makes it an important case for gender justice at the ICC. The case has the highest number of SGBV charges to date.

However, if the Court’s track-record for sexual violence charges is something to go by, we are in for a rainy day. With Ngudjolo’s acquittal in 2012, and Katanga’s partial conviction in 2014 excluding sexual violence crimes, there have thus far been no successful convictions for SGBV crimes at the ICC. This is a disappointing record for a Court that was heralded as a “model for gender justice” when its Statute entered into force.

With the Office of the Prosecutor’s (OTP) stated commitment to strengthen its investigation and prosecution of SGBV, however, there is hope that this case will be different. It follows in the footsteps of the Ntaganda case – the first case to reach the confirmation stage since Fatou Bensouda took office as Prosecutor; this was the first case in which all SGBV charges sought by the Prosecution at confirmation were confirmed. Further, in the Ntaganda case, the OTP is pushing the understandings of IHL protections around (sexual violence) crimes committed against one’s own troops. If successful, this would develop international law’s gendered understandings of child recruitment.

The Ongwen case may shed light on yet another relatively under-developed area of gender justice in international criminal law jurisprudence. It would be one of the few cases in international criminal justice to address the crime of forced marriage. While not included in the Rome Statute as a separate offence, the Prosecution has charged forced marriage as an inhumane act of similar character under Article 7(1)(k). The Prosecution alleges that the LRA pursued a policy of abducting women and young girls with the express aim of forcing them to act as wives of LRA commanders and fighters. While the OTP alleges that exclusive sexual services were an inherent part of being a forced wife, importantly, they argued that it also encompasses other, non-sexual, tasks such as household chores, cooking, and child rearing, i.e. raising new LRA fighters.  Continue reading