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.

Continue reading