In February 2021, the International Criminal Court (ICC) found Dominic Ongwen guilty of 61 out of 70 charges of war crimes and crimes against humanity sentencing him in May 2021 to a sentence of 25 years of imprisonment. His conviction is the result of his role in the Lord Resistance Army (LRA), a Ugandan militant group notorious for its use of child soldiers, who have been fighting to depose the president of Uganda, Yoweri Museveni, since the late 1980s.

“After 19 years of waiting for justice, victims in Northern Uganda finally see their sufferings recognized by a court of law,” said Paolina Massidda, who represented one group of victims. “Justice has been served for the victims of the conflict. The trial has set a good precedent for future perpetrators,” noted Nathan, a civil society representative from Eastern Uganda.

Ongwen, who was kidnapped at the age of nine and forced to become a child soldier, eventually became one of the top leaders of the LRA and perpetrated innumerable crimes. With his conviction, he has become the first LRA member to face justice at the ICC, and the judgment is a ground-breaking legal decision for sexual and gender-based crimes (SGBC).

THE ICC AND GENDER

Since the creation of the ICC, several judgments have taken steps to provide accountability for gender discrimination and SGBC. However, Ongwen’s verdict marks a positive development.

The Ongwen judgement is important not only because it brings justice to the people of Uganda, but because it engages communities and victims in a way that has not been seen before (4107 victims participated in the proceedings) and places SGBC at the centre of the case.

The concept of gender defined in article 7(3) of the Rome Statute refers “to the two sexes, male and female, within the context of society,” clarifying that gender is not just a euphemism for women, but a multifaceted and socially constructed category. Gender-based crimes are the result of the violence that takes place when people are targeted based on what is expected from their biological sex. Even though gender-based crimes are sometimes also sexual crimes, this is not always the case.

THE LORD RESISTANCE ARMY AND GENDER

The Ongwen judgment provides an excellent example of distinguishing between sexual and gender-based crimes. The LRA was infamous for targeting and kidnapping children. Boys were forced to become child soldiers and girls were divided in two groups: younger girls were used as household servants, helping to babysit, cook, fetch water, and wash clothes, while older girls were forced to become so-called “wives” (Ongwen, p.2253). The difference in suffering that the LRA inflicted on children occurred because of the socially constructed idea of male and female roles. Since young girls were too young to be victims of sexual violence, they were forced to complete household chores. The Ongwen judgement is the first in international criminal history to enter a conviction for crimes (in this case enslavement) that are labelled as gender-based but do not involve sexual violence.

The judgment is the highest number of individual crimes a person has ever been convicted of in the ICC, including the largest number of sexual and gender-based charges, which include rape, sexual slavery, forced marriage, forced pregnancy, torture, outrage against personal dignity, and enslavement. The verdict highlights the widespread system of sexual violence in the LRA, and Ongwen was found guilty of crimes he perpetrated himself and for the crimes he ordered and induced as leader.

Out of the 70 charges that Ongwen was charged with, he was acquitted of other inhumane acts as a crime against humanity and of cruel treatment as a war crime. The reason is that these counts were identical to the facts underlying torture in counts 4, 5, 16, 17, 29, 30, 42, and 43, which he was convicted of.

The Ongwen trial is the first to address forced pregnancy before an international court. Unlike the statues of other international criminal tribunals, the Rome Statute criminalizes forced pregnancy as a war crime and a crime against humanity. The perpetrator commits this crime when they “confine one or more women forcibly made pregnant” with the specific intent of “affecting the ethnic composition of any population or carrying out other grave violations of international law” (art. 7(1)(g)-4) such as with the intent to rape, sexually enslave, or torture them (Ongwen, p.2727). By convicting Ongwen of forced pregnancy, the trial chamber made an unequivocal defence of women’s rights, stating that the rationale behind the crime is grounded in the attack of “the women’s right to personal and reproductive autonomy and the right to family” (Ongwen, p2717).

The verdict also marks the first time that forced marriage was charged and confirmed in the ICC. Even though forced marriage is not included in the Rome Statute, the Court recognised the fundamental right to freely enter into marriage and recognised that in certain circumstances being forced to do so could constitute a crime against humanity. Forcing a person to enter into a marriage has “social, ethical and even religious effects which have a serious impact on the victim’s physical and psychological well-being” (Ongwen, p.2748). In this way, the chamber is recognising the suffering and social stigma that is the consequence of forcing someone to marry against their will.

CORRECTING REGRESSIVE PRECEDENTS

Finally, and in similarity to the decision of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Furundzija case (p.267.ii), the ICC declared that one event could amount to more than one crime if the charges have a unique element. The chamber concluded that forcing someone to watch the rape of a woman by a female LRA attacker and to watch the killing of a person amounted to torture (Ongwen, p.2901) and outrages upon personal dignity (Ongwen, p.2884-2885).This finding corrects the regressive precedent from the Bemba case (p.202), which took a very restrictive approach to cumulative charging.

It is true that there were no charges for sexual violence against men and boys in the case, leading to criticism that the problem was overlooked. However, the Ongwen verdict, delivered on 6 May 2021 and convicting him to a total period of imprisonment of 25 years as a joint sentence,has proclaimed a new era, not only by providing clarity on legal concepts but by setting a standard in which sexual and gender-based crimes can start to be treated with the importance they deserve. It is a slow process, but it is moving in a more gender-sensitive direction.

Índigo is working for the Gender and Children Unit of the International Criminal Court. She is an MSc graduate in International Crimes and Conflicts at the VU Amsterdam and holds an L.L.B. from Spain. She is passionate about ICL, Conflict Resolution, Peace Building & Transitional Justice.

LinkedIn