Symposium in Pursuit of Intersectional Justice at the International Criminal Court: Ongwen amici curiae Submissions from a Feminist Collective of Lawyers and Scholars

[Alexandra Lily Kather (she/they) is a lawyer, international justice practitioner & co-founder of the Emergent Justice Collective (EJC). Their work focuses, inter alia, on strategically addressing the intersectional dimensions of core international crimes.

Angela Mudukuti is a member of Opinio Juris and a human rights lawyer specialised in international criminal law. She has worked with a variety of international organsisations including the International Criminal Court and Human Rights Watch.]

On 4 February 2021, the International Criminal Court (ICC)’s Trial Chamber IX found Dominic Ongwen, a former commander in the Lord Resistance Army (LRA), guilty of 61 counts of war crimes and crimes against humanity committed in Northern Uganda between 1 July 2002 and 31 December 2005. The 61 counts included 19 counts of sexual and gender-based crimes (SGBC) and notably among them charges of sexual crimes tried at the ICC for the first time, namely forced marriage as an inhumane act and forced pregnancy. On 6 May 2021, Trial Chamber IX sentenced Dominic Ongwen to 25 years of imprisonment. The Defence filed its appeal briefs against the conviction in July and against the sentence in August 2021. Between 14 and 18 February 2022, the Appeals Chamber (AC) held the appeal hearing.

Following the Defence’s appeal and prior to the AC hearing, on 25 October 2021, the AC  issued an order inviting “expressions of interest as amici curiae in judicial proceedings” with respect to the case against Dominic Ongwen. Particularly, the AC sought to receive observations from “qualified scholars and/or practitioners of criminal procedure and/ or international law, mental health law and/or neuroscience and law” on, inter alia, “sexual and gender-based crimes, especially the legal interpretation of the crimes of forced marriage, sexual slavery and forced pregnancy as well as the standards applicable to assessing evidence of sexual violence”. A group of feminist lawyers and scholars put their heads together to form what we will loosely call a Feminist Collective and submitted four separate amici briefs.  As an introduction to this symposium, this blog details the process and shares our personal reflections as members of the Collective.

A Call to Action: “Egos Down, Integrity and Intellect (Smarts) Up!”

On 3 November 2021, a leading feminist international criminal lawyer circulated a call to action among feminist international lawyers and advocates to submit amici briefs.  The call was shared with relevant networks, underscoring, inter alia, the historic and precedent setting impact such briefs will have given that they will be considered by an appeals chamber, thus be binding on trial chambers.

The Blueprint: Strategise, Organize, Coordinate, Draft, Review, Reflect.

Forty-four feminist international lawyers responded to the call, among them prosecutors, litigators, academics and advocates working internationally and domestically to advance justice for core international crimes.

Within days, four groups tackling different areas, namely, forced marriage, forced pregnancy, sexual slavery & cumulative convictions, and duress & evidentiary standards were created. Each group was represented and led by one or two coordinators. Regular meetings were convened to ensure experience, resources and support flowed in all directions. These meetings served as a place to ask questions, share ideas, and strengthen content coherency when addressing the legal interpretation of sexual and gender-based crimes and the assessment of sexual violence evidentiary standards.

In addition to a digital shared workspace, secure instant messaging allowed for collaboration across continents and different time zones. Each group was free to decide on the content of their brief as a group and the division of labor included having lead drafters, reviewers, editors, and legal researchers. Those with appellate experience played a critical role in sharing vital knowledge on a variety of aspects including tone and structure.

After all the groups were granted leave to intervene, a collective timeline was created to guide the process until the submission date in late December incorporating slots for mutual review and formatting according to the appropriate filing guidelines. Regular meetings and check-ins continued until late December. Technical meetings addressing specific issues including the application of a gender competent analysis; the incorporation of intersectional considerations pertaining to race, gender and age through Article 21(3); the collective communication strategy; and moot court sessions in preparation for the oral hearings were held. Feminist strategizing and exchange was not confined to the aforementioned four groups and certainly did not stop once the written submissions had been finalized. For example, supportive alliances were built between groups that were invited to make oral submissions, including amici curiae that did not form part of the Collective. The imperative that “a gender strategy is not a luxury, its absence is an absurdity” guided the Collective throughout – from its creation to its final written and oral submissions.

Reflexivity and Accountability

The AC’s request for amici curiae submissions was a pivotal moment and the process of working in a feminist collective was inspiring and enriching. The fact that the Collective was able to come together and successfully present feminist interpretations of sexual and gender-based crimes at the Appeal level was a significant achievement, of which all involved can be proud.  

Whilst we celebrate this feminist initiative, we can (and should) simultaneously practice feminist accountability. According to feminist leadership trainer Leila Billing, “there’s this intoxicating idea that our leaders have to be perfect (and feminists are held to an even higher standard). But there’s no purity in a deeply damaged world. If we acknowledge we’re already complicit, accountability can feel much less painful.”

During the process, the structural flaws of the world of international criminal justice (including patriarchy and a colonial approach)  and the reality that feminist spaces are not necessarily free of the ways in which these systems of power are reproduced, was clear. The reflections that follow are an attempt to proactively and consciously engage with feminist accountability and the shortcomings of the world of international criminal justice. After all, consistent and constructive engagement on these issues is the starting point for much needed transformation in this field we all deeply care about.

Implicitly, the call to action highlighted the feminist imperative to come together as a community and actively engage the inherently patriarchal international criminal justice system that exhibits, in Sylvia Tamale’s terms “entrenched coloniality” and characteristics of what Tema Okun aptly calls “white supremacy culture”. This culture thrives on its defensiveness, exclusivity, and narrow understanding of the time required to meaningfully engage, all of which constitute structural barriers to participation. For example, who in today’s capitalist world has the privilege to (drop their day job and other obligations) make time to prepare not only a compelling request for leave to intervene within three weeks but also an amicus curiae brief a month later? Who is more and less inclined to understand oneself as one of the “experts” the Appeals Chamber asked for? In this instance, the Court accepted a total of 19 amici curiae submissions. Four were from our Feminist Collective. The remaining 15 were signed predominantly by men and individuals and entities based in / from the global north. Could feminist coalition-building be a response to these structural barriers to participation? If so, what principles, in practice, may guide us in the formation of a collective of international law feminists?

Whether one acknowledges it or not, nobody is free from the risks of perpetuating structural inequity and oppression. This is particularly true for those in the international criminal justice world who have white privilege and male privilege. Thankfully, considerable willingness, time and energy was spent by members to engage in conversations to address supremacist and regressive behavior ultimately leading to the successful submission of amici briefs. 

Representation

Whilst the submission of four amici briefs from the Feminist Collective greatly assisted with gender representation (when one looks at all the briefs accepted by the AC), the Collective itself had its own representation-related shortcomings. Feminist lawyers and advocates of color, in particularly of African descent, were vastly underrepresented with white feminist international lawyers from North America, Australia, or Europe constituting the majority of the Collective. This reality bears deep-rooted structural connectedness to the entrenched coloniality of international criminal justice: how the system was created, how it still functions today, who it speaks to, and who it enables to participate. The world of international criminal justice is typically about who you know and who knows you and often this exclusive mentality has resulted in brilliant women of color from the global south engaged in ground-breaking work, remaining largely unseen and unacknowledged. As articulated by a prominent feminist multidisciplinary Ugandan scholar, Sylvia Tamale, certain international justice institutions or bodies have indeed contributed to the furtherance of entrenched coloniality.

In addition, although the case on appeal related to Uganda – not a single Ugandan feminist advocate or survivor activist was a formal part of the Collective nor part of the other amici submissions. Efforts were made by the Collective to reach out to Ugandan feminists and their allies, and the Collective benefited greatly from input from a Ugandan judge, a survivor and an activist but none of them were formally part of the Collective nor signatories to any of the briefs.

Conscious and concerted efforts are required by institutions, and individuals to dismantle and change the prejudicial nature of the field. It is critical that further action is taken to support the centering of those with relevant lived experiences. In this case, where the objective was to provide legal clarification on the interpretation of sexual and gender-based crimes, capturing the meaning, breadth, and depth of harm “within the context” of Ugandan society clearly demands the presence of more Ugandan voices. As mentioned above, one must ask, who considered themselves an expert upon reading this call, who did not and why?

Communication

The AC invited

“highly qualified scholars and practitioners with the requisite expertise, who are interested in submitting observations on these issues, to file with the Registrar, by 16h00 on Monday, 15 November 2021, expressions of interest in which each of them expresses, in no more than four pages (excluding the title and notification pages), his or her particular expertise in the legal issues presented, specifying the main lines of argument that he or she may wish to submit before the Appeals Chamber.”

The AC should indeed be commended for inviting amici and accepting numerous and diverse submissions. This is positive practice which as the AC highlighted, would “be beneficial for the proper determination of the case.” However, as the quoted excerpt from its order demonstrates, the institutional language of the order assumes availability – both physically and psychologically – to respond on short notice and within a timely fashion to complex legal issues and with adherence to strict formatting guidelines. This is not unique to the ICC and all courts of law have a similar modus operandi, but more thought and consideration should be given to how institutions communicate and possible barriers to meaningful engagement.

The way we organize ourselves around institutions of this nature must also be a strategic response to structural shortcomings as we recognize the transformative value of feminist reflexivity and accountability. In the spirit of Srilatha Batiwahla, let’s continue to act and resist: “When you get tired, ask yourself: is the cost of this transformational work higher than the cost we currently pay in society in terms of oppression and harm under the current system?”

The following symposium will consist of four more posts reflecting submissions made by the groups that formed part of the Feminist Collective:

Group One: Observations on Sexual- and Gender-Based Crimes, particularly Sexual Slavery, and on Cumulative Convictions Pursuant to Rule 103 of the Rules of Procedure and Evidence by Sareta Ashraph, Stephanie Barbour, Kirsten Campbell, Alexandra Lily Kather, Jocelyn Getgen Kestenbaum, Maxine Marcus, Gorana Mlinarević, Valerie Oosterveld, Kathleen Roberts, Susana SáCouto, Jelia Sané, Hyunah Yang with assistance from Magali Maystre, Indira Rosenthal as well as from Hayley Bronner and Sydney Osterweil-Artson of the Benjamin N.Cardozo School of Law’s Benjamin B. Ferencz Human Rights and Atrocity Prevention Clinic.

Group Two: Observations on Forced Pregnancy by Dr. Rosemary Grey, Global Justice Center (GJC), Amnesty International (AI), Women’s Initiatives for Gender Justice (WIGJ).

Group Three: Observations on Forced Marriage by Erin Baines, Anne-Marie de Brouwer, Annie Bunting, Eefje de Volder, Kathleen M. Maloney, Melanie O’Brien, Osai Ojigho, Valerie Oosterveld, Indira Rosenthal.

Group Four: Observations on Duress and the Standards Applicable to Assessing Evidence of Sexual Violence by Louise Arimatsu, Adejoké Babington-Ashaye, Danya Chaikel, Christine Chinkin, Carolyn Edgerton, Angela Mudukuti, Cynthia T. Tai with assistance from Kirsten Campbell, Maxine Marcus, Priya Gopalan, Kathleen Roberts, Magali Maystre, Anousheh Haghdadi, Cecilia Kustermann, Ellie Halodik, Stella Pizzato, Arwa Hleihel and Kenza Mena.

To feminist international lawyers engaged in the work of gender justice, the AC’s invitation constituted a rare, yet welcome, opportunity to weigh in on the legal interpretation of sexual and gender-based crimes and related evidentiary matters on appeal. It was a critical moment in which the need for coalition-building on intersectional feminist issues in international criminal justice became evident.

This was about joining forces. This was about sharing our respective experiences, skills, knowledge, resources and perspectives. This was about building with intention and integrity, a safe, supportive, respectful and uplifting space imbued with the collective feminist vision of approaching international criminal justice through a gender competent lens. In practical terms, this was about the creation and design of processes, leadership and structures that facilitate strategic intersectional feminist interventions that can be replicated and enhanced in the future. May this be one of many feminist initiatives.