Symposium in Pursuit of Intersectional Justice at the International Criminal Court: Group Four – Applying a Gender Analysis to the Defence of Duress and to Sexual Violence Evidence in the ICC Ongwen Case

[Danya Chaikel is currently consulting with FIDH’s International Justice Desk and is the Co-Vice Chair of the IBA’s War Crimes Committee.]

This amicus curiae brief was submitted by: Louise Arimatsu, Adejoké Babington-Ashaye, Danya Chaikel, Christine Chinkin, Carolyn Edgerton, Angela Mudukuti, and Cynthia T. Tai.*

Following the Ongwen Appeals Chamber’s (AC) invitation to scholars and legal practitioners we submitted an amicus brief contending that duress and sexual violence evidence should be interpreted contextually with a robust gender analysis, to prevent gender discrimination, stereotypes, and prejudice. The following is a snapshot of our main arguments.

Defence of Duress

On duress, we agreed with the Trial Chamber’s (TC) finding in the conviction decision that this defence is unavailable to Ongwen, who argued he was under a continued threat of imminent death and serious bodily harm from LRA founder Joseph Kony and his controlling, military apparatus. The TC found that Ongwen was unable to rely on duress as a ground for excluding criminal responsibility under Article 31(1)(d) of the Rome Statute as he had failed to show he was under an imminent and serious threat at the time he committed the sexual and gender-based crimes (SGBC) for which he was convicted.

Legal Interpretation of Article 31(1)(d) of the Rome Statute Must be Conducted Through a Gender Analysis

Article 21(3) of the Rome Statute requires judges to apply and interpret the law in a way that is consistent with internationally recognised human rights, and without gender discrimination. It follows, we submitted, that a gender analysis of both offences and defences including duress is necessary. Not only does such an analysis help expose the gendered assumptions upon which the law – substantive or procedural – is constructed, interpreted, and applied, it also ensures against inadvertently maintaining hierarchies founded on discrimination, on gender and otherwise, and thereby perpetuating and normalising relations of domination, oppression, and exploitation. A gender analysis is also of critical importance in drawing attention to the law’s blind spots including, for example, the failure to prosecute sexual and gender-based crimes, especially those committed at the intersection with racial discrimination. Failure to apply a gender analysis leaves the Court with an incomplete picture of what crimes occurred, how they occurred, and why they occurred, which ultimately leads to an unjust result for both the accused and the victims/survivors.

For instance, duress requires that the acts in question (i.e., the conduct underlying the violent crimes Ongwen was convicted of) must be proportionate to the harm that the defendant confronted and sought to avoid.  A gender analysis shows that given their gravity, the proportionality requirement is not met in the case of SGBCs for which Ongwen was charged and convicted. We stressed that it is well established that SGBCs are crimes of extreme gravity, so a lesser harms test or a reasonableness test for duress should fail in the context of this specific case.

The Doctrine of Prior Fault: A Gender Analysis Must be Applied to the Defence of Duress as it Reveals the Culpability of Ongwen for the SGBCs with Which he was Charged and Convicted

The doctrine of prior fault, though not explicitly included in the Rome Statute, is well established in comparative criminal law and in international criminal law and a comprehensive interpretation of duress requires that a trial chamber consider the accused’s conduct up until the materialisation of the threat giving rise to duress. When we apply the doctrine of prior fault to this case through a gender lens, we see that Ongwen was a male living in a patriarchal society and held the position of a Brigade Commander after rising through the ranks. The evidence presented at trial shows that Ongwen played a direct role in creating an environment in which serious international crimes were sustained and/or normalised. He commanded attacks against civilians, including committing crimes against those he forcefully married and the underaged girls that he exploited for forced domestic labour. A gender analysis reveals the ways in which relationships of domination, oppression, and exploitation can be normalised by an accused through, for example, the imposition of gender roles and stereotypes making sexual and gender-based violence inevitable. The TC therefore benefits in its truth-finding function, from assessing the broader gendered context in which the SGBCs took place, in order to accurately determine Ongwen’s role in creating and sustaining a discriminatory environment founded on coercion and violence.

SGBCs: The standards Applicable to Assessing Evidence of Sexual Violence

We submitted that the TC correctly assessed the sexual violence evidence presented at trial in conformity with well-established international criminal law principles. This assessment requires a rigorous gender analysis which helps ensure a contextual and intersectional evaluation of the evidence, so that discriminatory norms, stereotypes, and inequalities are not inadvertently perpetuated in ICC proceedings. While the TC has broad authority and discretion to determine the relevance or admissibility of evidence, we propose that it is still subject to that evaluation being conducted in a non-discriminatory manner which is consistent with the Rome Statute and the Rules of Procedure and Evidence (RPE).

Specifically, article 21(3) of the Rome Statute requires the application and interpretation of internationally recognised human rights standards and principles of non-discrimination to assess sexual violence evidence. The Convention on the Elimination of Discrimination Against Women (CEDAW) is a critical source of law within the meaning of article 21(3), providing guidance on preventing discrimination while supporting an intersectional gender analysis of sexual violence evidence. Such a gender analysis avoids discriminatory outcomes such as those relating to gender, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth, or other status.

Discriminatory presumptions infringe the right to equal treatment under internationally recognised human rights law. In particular, this prejudice may prevent or interfere with the TC’s core truth-finding functions if, for instance, it has a partial assessment of a particular witness’ testimony because of their gender, race, or class. More specifically, a gender analysis of sexual violence evidence helps judges avoid harmful common inferences such as: (1) sexual violence is less serious than other international crimes; (2) sexual violence crimes must meet higher evidentiary requirements for gravity and systematicity to be considered international crimes; (3) sexual violence only affects women and girls, and therefore the primary evidentiary value of their testimony concerns sexual violence; (4) other persons are not victims of, or witnesses to, sexual violence; and (5) consequently, evidence of sexual violence has less probative value in establishing international crimes.

The Same Evidentiary Standards Apply to Evidence of Sexual Violence as to Evidence of Other Crimes

As with all evidence relevant to Rome Statute crimes, sexual violence evidence must be assessed in accordance with the Statute and RPE. There are, in fact, specific RPE provisions to ensure sexual violence evidence is not treated differently – or with higher evidentiary requirements – due to discriminatory presumptions (rules 70-71 of the RPE).

We stressed that sexual violence crimes should not be subject to higher standards and adverse evidentiary requirements and must be evaluated according to the same standards – reliability, credibility, admissibility, and probative value – that apply to all forms of evidence. While this standard has regrettably not always been respected, we found that the TC’s assessment of the testimonial evidence of sexual violence in the Ongwen conviction decision was carried out in a non-discriminatory way and considered factors such as trauma, the age of the witness at the time of the offence, and the lapse of time since the offence and how this impacts testimony. The TC found, for instance, that “[w]itnesses who suffered trauma or were children at the time of the events may also have had difficulty in providing a coherent and complete account, and the Chamber made appropriate allowance for imprecisions or contradictions.”(para. 285). An important principle in international criminal law jurisprudence is that inconsistencies in testimony do not necessarily undermine a victim’s account of sexual violence.

Evidence of Sexual Violence Must be Assessed Individually and Holistically as Part of the Totality of the Evidence Received at Trial

Avoiding a discriminatory evaluation of witness testimony requires acknowledging the intersecting status of witnesses as well as the harms they may experience, and assessing their testimony in light of the individual circumstances of the witness. The TC correctly assessed testimonial evidence holistically and on a case-by-case basis, taking into account the entirety of a witness’ testimony and in light of their personal situation. The evaluation of sexual violence evidence, like evidence of all crimes, must also be assessed in terms of its coherence, and on the basis of the total evidence submitted in the entire proceedings. Treating sexual violence crimes as an exception to this principle by requiring more evidence than other crimes would reaffirm the discriminatory and outdated presumptions outlined above, and creates a prejudicial environment that diminishes the gravity of sexual violence crimes.

No Requirement of Corroboration

However, the principle of the holistic assessment of individual pieces of evidence does not reintroduce a requirement of corroboration of sexual violence evidence. Rule 63(4) of the RPE expressly states that there is no legal requirement of corroborative evidence to prove a crime before the Court and specifies that this principle applies to sexual violence evidence. We state in our brief that that the TC evaluated the sexual violence evidence in a way that is consistent with this principle as enshrined in rule 63(4). This rule is particularly important for the fair evaluation of sexual violence evidence, given that it is a crime that often occurs without witnesses.

A Contextual Evaluation of Sexual Violence Evidence is Required to Prevent Prejudicial Evaluation of Such Evidence

We also submitted that the TC appropriately considered the coercive contexts of the crimes in assessing the evidence of sexual violence and correctly evaluated the evidence of sexual violence in a contextual non-discriminatory manner. The relevance of sexual violence evidence, and its probative value in proving the charges, as with other evidence, should be contextually evaluated within the full temporal and geographical scope of the charges and wider criminal campaign. This is required to prevent the prejudicial evaluation of such evidence based on discriminatory presumptions, and particularly important in the assessment of SGBV evidence since, there is no universal view of what makes an experience of harm or violence ‘sexual’.

One such prejudicial presumption is that sexual violence is a personal or opportunistic crime, and therefore an isolated act not connected to a conflict. Another flawed presumption is that sexual violence itself must be systematic/widespread or committed pursuant to orders for it to be an international crime. A contextual approach will capture those cases committed across extended time periods and wide geographical areas. Additionally, it recognises that any given victim-witness will often be representative of a number of other victims within the scope of the charges, but who will not appear before the Court.

Responses of the Parties

In the Prosecution’s response to the amici curiae observations, our brief is generally cited in a positive way throughout. On duress, for instance, the Prosecution cites from our submission that the threat in question (e.g., Joseph Kony’s controlling, military apparatus) must have resulted in duress that actually caused the criminal conduct, and the accused must have acted in the proscribed manner because of the threatened harm (para. 26). The Legal Representatives of Victims (LRV) supported our submissions “in their entirety” (para. 11) in their observations, agreeing that the TC correctly interpreted article 31(1)(d) of the Statute. The Common Legal Representatives of Victims (CLRV) concluded that our observations have some value for the Appeals Chamber (para. 39). Finally, the Defence disagreed with our analysis on duress in their response claiming, among other things, that it superimposes a gender lens which does not fit the factual evidence (para. 39). They do not agree that Ongwen was able to control his environment, because he had “no authority within the so-called ‘command structure’ of the LRA, and he was the object of surveillance initiated by Joseph Kony.” (para. 39)

With respect to sexual violence evidence, the Prosecution, LRV, CLRV, and Defence agreed with our assessment that the TC applied the correct approach in its assessment of sexual violence evidence in the case. The Prosecution cited our submission that interpretations of SGBC elements and evidentiary approaches must comply article 21(3) of the Statute, that any analysis of SGBC evidence must avoid common discriminatory presumptions, and that adopting an intersectional gender analysis and approach is key.

*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.