02 May Symposium in Pursuit of Intersectional Justice at the International Criminal Court: Group One – Sexual Slavery is Enslavement
[Jocelyn Getgen Kestenbaum is 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).
Magali Maystre is an international criminal and human rights lawyer and adviser with a background of more than 15 years of professional experience in international criminal proceedings and investigations currently working for the United Nations. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations.]
In Prosecutor v. Ongwen, ICC Trial Chamber IX (Ongwen Trial Chamber) reasoned itself to an untenable result, finding that enslavement as a crime against humanity is “in the abstract entirely encompassed within sexual slavery.” (para. 3051). For this reason, feminist international law scholars and practitioners who have expertise in gender-based crimes—including Jocelyn Getgen Kestenbaum, Magali Maystre, Alexandra Lily Kather, Sareta Ashraph, Stephanie Barbour, Kirsten Campbell, Maxine Marcus, Gorana Mlinarević, Valerie Oosterveld, Kathleen Roberts, Susana SáCouto, Jelia Sané, Hyunah Yang, and Indira Rosenthal, supported by Hayley Bronner and Sydney Osterweil-Artson of Cardozo Law’s Benjamin B. Ferencz Human Rights and Atrocity Prevention Clinic—filed an amici curiae brief to assist the ICC Appeals Chamber in its determination of the case. Amici submitted that sexual slavery is not a “form” of enslavement; rather, all acts of a sexual nature—including control over sexuality, sexual integrity, and sexual and reproductive autonomy—constitute indicia of the exercise of powers of ownership of enslavement in all its forms (i.e. de jure, or legal,and de facto, or customary,slavery). Sexual slavery is—in the abstract and in fact—entirely encompassed within the crime of enslavement, not the other way around.
First, as amici observed in their intervention before the Appeals Chamber, the Ongwen Trial Chamber’s legal interpretation is incorrect based on factual and historical understandings of slavery and the exercise of powers of ownership over a person. Article 1(1) of the 1926 Convention to Suppress the Slave Trade and Slavery (“1926 Slavery Convention”) defines slavery as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.” This definition is replicated in all slavery crimes enumerated under the Rome Statute (see Arts. 7(1)(c) [enslavement as a crime against humanity], 7(1)(g) [sexual slavery as a crime against humanity], 8(2)(b)(xxii) & 8(2)(e)(vi) [sexual slavery as a war crime]). As amici submitted, the 1926 Slavery Convention drafters intended for the slavery definition to include, inter alia: concubinage, plaçage, and grooming of “fancy girls;” as well as acts of rape, castration, forced procreation and forced breastfeeding, whenever those systems and practices constituted the exercise of powers of ownership over a person. Thus, “acts of a sexual nature” (the defining element of sexual slavery under the Rome Statute definition and ICC Elements of Crimes), including control over sexuality, sexual integrity, and sexual and reproductive autonomy over a person, always have been and continue to be integral to slavery.
Second, the Ongwen Trial Chamber’s legal interpretation that sexual slavery encompasses enslavement is contrary to customary international law, which interprets “acts of a sexual nature” that evince exercise of ownership powers as indicia of enslavement, not an aggravated form of slavery. In Kunarac et al., the ICTY found that control over sexuality—while not an element per se of enslavement under international law—is a factor to determine whether the perpetrator exercised powers attaching to ownership rights over the victim, hence whether enslavement occurred. Though the Ongwen Trial Chamber correctly identified control of sexuality as an indicator of the exercise of powers of ownership of enslavement, it emphasized abductions and forced labor as systematic practices in which persons of all genders and ages were enslaved (paras. 2803-2805, 2894-2896, 2948, 3083, 3087) and only recognized some acts of a sexual nature (i.e. heteronormative, cis-male-on-female rapes) in the context of enslavement (paras. 3044-3049, 3081-3084).
Why does it matter whether criminal conduct is categorized as sexual slavery or enslavement under the Rome Statute? The Ongwen Trial Chamber’s evidentiary and subsequent legal analysis falls short by failing to recognize the sexualized ownership exercised over victims, especially child-victims, that occurred whether or not the victims were caused to engage in one or more acts of a sexual nature. Thus, the Ongwen Trial Chamber’s restrictive interpretation hindered a more comprehensive and accurate legal interpretation of enslavement, excluding myriad additional acts, even acts of a sexual nature, constituting indicia of enslavement. For example, its restrictive analysis hampered a more comprehensive understanding of girl-child ting tings’ enslavement whose sexuality and reproduction were completely controlled through grooming by, inter alia, menstruation checks and purposeful exclusion from sexual acts. Consequently, the Ongwen Trial Chamber’s legal conclusions failed to acknowledge the relationship between and among sexual development, acts of a sexual nature, and control over sexuality and reproduction, as well as the way that such control manifests over time and in the course of enslavement. Further, myriad other acts (i.e. forced marriage acts, [sexualized] torture, forced pregnancy), even acts of a sexual nature, were excluded from the legal interpretation of enslavement as a crime against humanity.
Misconceptions of slavery that distinguish ownership exercised through forced labor from ownership exercised through “acts of a sexual nature” fail to identify the true nature (and, thus, to remedy the full range of harms) of enslavement. Control over sexuality and reproduction are effective ways in which perpetrators exercise powers of ownership over all enslaved persons, regardless of whether perpetrators commit sexual violence crimes, such as rape, in the course of enslavement.
Most troubling, the Ongwen Trial Chamber’s finding that sexual slavery fully encompasses enslavement led it to a discriminatory application of the law, especially on the basis of gender and age, in instances where “acts of a sexual nature” did not include heteronormative, male-on-female rape in the context of enslavement. Indeed, while Ongwen directly or indirectly perpetrated acts of a sexual nature and exercised control of sexuality against all enslaved persons, the Ongwen Trial Chamber only recognized certain enslaved persons’ sexualized enslavement, namely those subjected to heterosexual cis male-on-female rape in the context of abductions and distributions. It left out other acts, such as the facts that enslaved boy-child soldiers were forced to rape; enslaved girl-child ting tings were groomed through inter alia forced menstrual checking and forced virginity; enslaved ting tings who later became “wives” were controlled sexually throughout their enslavement regardless of whether they were subjected to rape. It also failed to recognize that Ongwen’s children born of enslavement and rape were enslaved, including through sexual ownership of their entire beings.
In this way, the Ongwen Trial Chamber has reinforced the misconception that enslavement primarily criminalizes general deprivations of liberty, forced labor and non-sexualized violence, while sexual slavery primarily criminalizes rape and rape-like acts in the enslavement of women and girls. Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum have called this discriminatory application of the law a reductive, “feminization” of slavery crimes. Such a restrictive understanding of sexual slavery does not address the multiple physical and psychological harms, such as loss of control of sexuality, attacks on sexual integrity, and denial of sexual and reproductive autonomy that enslaved persons of all genders and ages experience. Moreover, “sexual slavery” as a separately enumerated crime was never intended to exclude categories of enslavement victims or certain conduct in violation of nondiscrimination as has played out in practice.
While the Ongwen Trial Chamber interpreted “sexual slavery” as slavery plus an act of a sexual nature (i.e. an aggravated, or more specific, form of enslavement), the definition and analysis of the way that sexualized violence is and always has been integral to slavery in all its forms under customary international law requires us to recognize the breadth of the crime of enslavement to include control over a person’s sexuality, sexual integrity, and sexual and reproductive autonomy as indicia central to this crime. To put it simply, sexual slavery is enslavement. Acts of a sexual nature, including control of sexuality, sexual integrity, and sexual and reproductive autonomy are factors that indicate exercise of ownership over enslaved persons. To interpret slavery crimes otherwise is to deny victims full expressive justice for the breadth of the criminal conduct—sexual and otherwise—perpetrated in the course of enslavement.
In the end, to reflect fully the culpability of the accused, and to avoid entering cumulative convictions for separately enumerated crimes that do not each have a distinct element from the other, and to avoid a continuation of a discriminatory application of the law, the amici submitted that, in the interests of justice, the Ongwen Trial Chamber should have entered convictions for enslavement rather than sexual slavery because conduct criminalized under sexual slavery constitutes criminal conduct already covered by enslavement. After all, sexual slavery is entirely encompassed within enslavement, not the other way around. The Appeals Chamber has an opportunity to rectify this mischaracterization of slavery crimes in order to fully remedy victims’ harms equally and without discrimination.