Legal Characterization of sexual and reproductive violence in International

Criminal law: An Analysis of the Dominic Ongwen case

The Ongwen case (The Prosecutor V.Dominic Ongwen) which concluded in December 2022 is
one of the most historical judgments in international law, because the International Criminal
Court (ICC), convicted the defendant of gender-based acts of forced marriage and forced
pregnancy and set a positive progression in the creation of a strong body of laws and regulations
on sexual violence at the international level.

Dominic Ongwen, a former commander of the Lord's Resistance Army (LRA) was charged with
several serious crimes under international law, including war crimes and crimes against
humanity and was convicted under 61 of the charges pressed against him, including 19 counts of
sexual and gender-based violence The trial pioneered international criminal jurisprudence by
recognising forced marriage as a distinct form of Sexual and Gender-based Violence and
navigating the narrow definition of forced pregnancy, given under the Rome statute

According to Article 7(2)(f) of the Rome Statute, forced pregnancy is “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”. Although the definition
is uniquely narrow, the court in the present case has interpreted the elements of crime in forced
pregnancy quite extensively.

The trial chamber held that the defendant had raped and impregnated two women, who were
unlawfully confined by threatening to kill if they escaped and the sustained nature of his acts
made it quite evident that he had the mens rea to engage in the conduct and have relevant
knowledge about the circumstances. Furthermore, the Trial Chamber was also satisfied that he
had a specific intent of carrying out other grave violations in International law, such as intent to
continue to subject them to forced marriage, torture, rape and sexual slavery and held that the
crime is “grounded in the women’s right to personal and reproductive autonomy and the right to
the family”

Another crucial aspect which the court litigated for the first time was the act of forced marriage.
Historically, forced marriage has never been recognized as a separate crime and is included
under other human violations under Article 7(1)(k) of the Rome Statute.
Even though the defence argued the same and contended that forced marriage should not be
charged as an inhumane act but be subsumed in the charge of sexual slavery, the Chamber
solidified the conduct and harms captured by the term ‘forced marriage’, distinguishing it from
other crimes against humanity and confirmed that prosecution of forced marriage does not
contravene the principles of nullum crimen sine lege

Reproductive violence has been documented in many conflicts and has occurred in several mass
atrocities before and acts of reproductive violence have usually been prosecuted as crimes
against humanity, but it has rarely been recognized as a distinct category of gender-based
violence. However, the Ongwen case demonstrated how gender-based crimes are not limited to
sexual violence, and how torture and mutilation may have aspects that relate to the victim’s
gender.

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