Conflict-Related Sexual Violence Symposium: Conversations under the Rome Statute–Enslavement and Sexual Slavery

[Patricia Viseur Sellers is the Visiting Fellow at Kellogg College of the University of Oxford and Special Advisor for Gender for the Office of the Prosecutor of the International Criminal Court. Jocelyn Getgen Kestenbaum is the Associate Professor of Clinical Law at the Benjamin N. Cardozo School of Law where she directs the Benjamin B. Ferencz Human Rights and Atrocity Prevention Clinic and the Cardozo Law Institute in Holocaust and Human Rights (CLIHHR). This is a post in our joint blog symposium building on the discussion focusing on accountability for conflict-related sexual violence crimes associated with slave trade, slavery and trafficking, held as part of the Digital Dialogue Series, hosted regularly by the UN Team of Experts on the Rule of Law and Sexual Violence in Conflict.]

The Ongwen judgment also lays bare the legal (mis)conceptualization of sexual slavery that is rooted in the Rome Statute. “Sexual slavery” appears in three provisions: as a crime against humanity under Article 7, in addition to enslavement and as a war crime in both international and non-international armed conflict under Article 8. The ICC Elements of Crimes document states the identical elements for each provision, requiring for that “[t]he perpetrator caused [the] person or persons [over which the right of ownership was exercised] to engage in one or more acts of a sexual nature.” This definition was applied in Katanga, Chui, Ntaganda, as well as Ongwen. Sexual slavery, the Ongwen Trial Chamber concluded, is more specific than enslavement. Although the jurisprudence acknowledges that “there is no exhaustive list of situations or circumstances” to prove the additional element (i.e. causing the victim to engage in an act of a sexual nature), so far, the acts have been limited to heterosexual male-on-female rapes.

Under customary law, enslavement as defined in Article 7 would encompass these rapes and any other forms of sexualized enslavement. Under enslavement, perpetrators need not cause enslaved persons to engage in an act of a sexual nature in order to sexually enslave them. Take, for instance, the sexualized enslavement experienced by the girl-child ting tings. Waiting for the ting tings to reach puberty in order to rape them is a manifestation of exercising powers over their sexual autonomy or integrity (i.e. sexualized enslavement). An individual might be sexually enslaved, not only by perpetrators causing them to engage in sexual acts, but also by purposefully causing them not to engage in sexual acts, by checking menstrual flows, by awaiting sexual maturity, or by restricting or suppressing sexual activity. These are exercises of powers attaching to ownership rights that define enslavement and are not to be confused with acts by omission as constructed under sexual slavery. These acts are positive acts that demonstrate the commission of the exercise of powers attaching to ownership rights.

The enumeration and specific elements of sexual slavery, however, occlude the complexity of  enslavement.  The Chamber’s Article 8 interpretation erroneously presupposes that the sexual slavery provisions of the Rome Statute mirror the broader swath of sexualized acts and sexual practices that  slavery  or enslavement govern under treaty and customary international law. In Ongwen, sexual slavery as lex specialis seems to have taken priority over enslavement as lex generalis, given the elements of sexual slavery and the elements of  enslavement.  The Chamber states that “the legal elements of enslavement […] are wholly included within the legal elements of sexual slavery” and that “sexual slavery and enslavement cannot concur on the basis of the same facts” (paras. 3051 and 3086). Ongwen’s  mischaracterization has led to sexual slavery being narrowly interpreted and enslavement being misconstrued,

We have written about the historic scope of sexualized practices of enslavement under customary international law, which would encompass premenstrual ting tings,bush “wives,” and laborers subjected to forced labor and forced nudity (paras. 1119, 1121) to prevent the hiding or stealing of diamonds. Sexual slavery crimes provisions exhibit a narrow, ahistorical view of physical sexual acts or psychological sexual acts that disembody or deprive the slaves of their sexual autonomy. Notably, the girl-child ting tings, enslaved prior to puberty had their sexual and reproductive autonomy surveyed, controlled, and owned. An integral part of their enslavement was Ongwen ensuring their sexual “purity” or status as virgins, free of HIV or other sexually transmissible infections. By stating that ting tings were a “sub-category of abducted girls in the LRA who were not sexually enslaved, but enslaved,” (para. 3086) the Chamber misses key aspects of sexualized (psychological) violence in the course of enslavement beyond the reductive characterization of male-on-female rape.

In Ongwen,two untenable divergences from customary international law emerge. The first is that males and females, adults and children who were enslaved but not raped are seen as victims of (non-sexual) enslavement as a crime against humanity. The second is that females who were raped – and possibly those impregnated (paras. 3047, 3061) – and thus found to have been caused to engage in an act of a sexual nature are seen as victims only of sexual slavery, not of enslavement.

Each scenario distorts the experiences of enslaved persons. The women and girls who were raped repeatedly as so-called “wives” were more broadly enslaved, including through ownership of their reproductive capacity, physical movement, and parental guardianship of their children. Ongwen controlled the so-called wives in all aspects of their lives, including but not restricted to the limited conceptualization of sexual autonomy envisaged by the Trial Chamber. Diminishing their experiences, mainly to repeated rapes, is restrictive and incorrect. Such legal reasoning and conceptualization serve to obscure their enslavement harms and facilitate perpetrator impunity. The Chamber’s subsequent interpretation artificially splinters enslavement and sexual slavery, contrary to the historical practices of slavery and to customary international law.

The Rome Statute’s division of slavery into two provisions—sexual slavery and enslavement—has created a problem of statutory interpretation. The Ongwen TrialChamber subsumes enslavement under sexual slavery. Under the 1926 Slavery Convention and the 1956 Supplementary Slavery Convention, sexual slaves were understood to be enslaved in all aspects of their being: the sexualized violence was evidence of exercise of powers attached to ownership rights and part of their enslavement. Now the inverse has become the Chamber’s finding: that enslavement is a lesser, included offense of sexual slavery given that once enslaved individuals are caused to engage in sexual acts, they become sexually enslaved, but not enslaved.

The reasoning in Ongwen underscores structural defects of the elements of sexual slavery. Our research shows that the inclusion of sexual slavery was enumerated purposely and with good intentions. Conceptually, however, even the term “sexual” has been interpreted narrowly and based on assumptions of sexual slavery as a crime perpetrated against females. Did the Court ever consider whether Ongwen caused the enslaved boy-child soldiers to engage in an act of a sexual nature? (e.g. paras. 216-220; 2202-2216)

Lastly, the Ongwen Court overlooks the children born of forced pregnancy as victim-survivors (paras. 2068-70). The mothers are seen “only” as sexual slaves. The children born of female slaves’ reproductive enslavement do not find their harms legally characterized or addressed. Unlike the other slaves, they were not abducted, but birthed into slavery. As we have written, historically, forced “breeding” has been a common way to increase slave populations. Ongwen’s enslavement system designated the use of ting tings’ labor to care for these enslaved infants and toddlers born from sexually enslaved females (paras. 217, 2107, 2249, 2252). Could the children born into LRA the enslavement become the future fighters or ting ting girls?    

The Ongwen judgment has fostered a more mature conversation about slavery crimes and sexual violence jurisprudence in general, especially from feminist commentators here and here. Long gone should be the days when applause is extended for merely including incidents of sexual violence in the charging documents or amid the convictions of conflict-related international crimes. More is expected. More is required. Slavery remains legally mischaracterized and conceptually misunderstood in contemporary international criminal law, and the slave trade is almost completely ignored. The Rome Statute obscures this criminal conduct. What is required is that the Rome Statute be amendment to include the slave trade as a war crime and a crime against humanity into Articles 7 and 8, respectively. Also, slavery needs to be enumerated as a war crime under Article 8. The broad scope of sexualized enslavement likewise must be laid congruent with historical and contemporary practices.

The Ongwen trial judgment, thankfully, has brought legal attention to the practices of abduction and distribution and use of female and male slaves during armed conflict. Moreover, the Ongwen judgmentholdings on forced pregnancy and that slavery is an  act of persecution under Article 7 (paras. 2846, 2874) are de novo and laudatory. Our critical observations about the structural deficiencies in the Rome Statute as related to enslavement, the slave trade, and sexual slavery endeavor to add clarity to an evolving and maturing conversation about slavery crimes.