In the seminal case of The Prosecutor v Dominic Ongwen before the International Criminal Court (ICC), SALC and Prof. Bonita Meyersfeld have been admitted as amicus curiae. Dominic Ongwen (Mr. Ongwen) was convicted of crimes against humanity and war crimes by Trial Chamber IX of the ICC on 4 February 2021, which resulted in a sentence of 25 years imprisonment. After the Defence of Mr. Ongwen had filed its appeal brief on 21 July 2021, the ICC Appeals Chamber issued an order inviting expressions of interest as amicus curiae on legal questions related to sexual and gender-based crimes and ground for excluding criminal responsibility.
From 14 to 18 February, the Appeals Chamber of the ICC will hear the case of The Prosecutor v Dominic Ongwen. SALC, together with Prof. Bonita Meyersfeld, was granted leave by the ICC Appeals Chamber to make a joint submission as a friend of the court (amicus curiae) and was invited to make oral submissions during the hearing of the matter. SALC and Prof. Meyersfeld made submissions on the topic of:
- The distinct elements and harm of forced marriage, sexual slavery and forced pregnancy (SGB crimes)
- The cumulative charges and convictions of such SGB crimes
- The admissible evidence and probative value of various categories of evidence relating to SGB crimes
Joint submission by SALC and Prof. Meyersfeld
SALC and Prof. Meyersfeld submit that forced marriage, sexual slavery and forced pregnancy are distinct, cognisable crimes that have materially distinct elements not contained within the statutory definition of the other. The joint submission, therefore, argues that it is possible to have concurrent charges and convictions for such crimes where there is common conduct.
In this context, the joint submission sets out the distinctive harm concerning the crime of forced marriage by discussing the internal and external component of harm. With respect to the crime of sexual slavery, the joint submission addresses various elements such as the loss of one’s sexual autonomy, sexual health and personhood and argues that it is the combination of commodification, bondage and sexual violence, that create the cognisable crime of sexual slavery. The joint submission further emphasises with respect to the crime of forced pregnancy that the key distinctive component of the crime is the violation of a woman’s reproductive health and autonomy. SALC and Prof. Meyersfeld further refer the ICC Appeals Chamber to Article 14 of the Maputo Protocol to counter the Defence’s assertion that the criminalisation of forced pregnancy is incompatible with domestic law in Uganda.
The joint amicus curiae submission further sets out that evidence must be considered holistically, contextually, and with an understanding of the specific ways in which SGB crimes manifest. In that regard, SALC and Prof. Meyersfeld submit that inherently personal, sensitive, and intimate interests that are violated by SGB crimes demand a more nuanced use of regular principles. The joint submission illustrates how various categories of evidence, such as direct, indirect, or contextual evidence, can become crucial in order to assess a person’s criminal liability relating to SGB crimes.
Mr. Ongwen is a former commander of the Lord’s Resistance Army (LRA) and was convicted of being a key member of the LRA leadership. With judgment from 4 February 2021, Mr. Ongwen has been found guilty on 61 counts of war crimes and crimes against humanity committed between 1 July 2022 and 31 December 2005 in northern Uganda, including murder, torture, enslavement, pillaging, persecution, forced marriage, rape, sexual slavery, and forced pregnancy. The proceedings at the ICC followed a self-referral of the situation by Uganda in December 2003. In 2005, a Pre-Trial Chamber of the ICC issued arrest warrants for war crimes and crimes against humanity against five top LRA commanders: Joseph Kony, Vincent Otti, Okot Odhiambo, Raska Lukwiya, and Dominic Ongwen. While Vincent Otti and Joseph Kony remain at large, Raska Lukwiya and Okot Odhiambo are deceased, and the ICC has terminated proceedings against them. The case of Mr. Ongwen constitutes the first case in which the ICC convicted a person for the crime of forced marriage and forced pregnancy as distinct crimes.
28 January 2022 – ICC Appeals Chamber’s invitation to make oral submissions.
23 December 2021 – Amici curiae observations submitted.
24 November 2021 – ICC Appeals Chamber granting leave to submit amici curiae observations.
31 January 2022 – Amicus curiae submission by SALC and Prof. Bonita Meyersfeld.