Symposium in Pursuit of Intersectional Justice at the International Criminal Court: Group Three – Observations on Forced Pregnancy – Protecting Personal and Reproductive Autonomy

[Matt Cannock is the Head of Amnesty International’s Centre for International Justice.

Dr. Rosemary Grey is a Lecturer at Sydney Law School and a Sydney Southeast Asia Centre DECRA Fellow.

Akila Radhakrishnan is the President of the Global Justice Center, where she directs GJC’s work to establish legal precedents protecting human rights and ensuring gender equality.

Alix Vuillem is the Senior Advocacy Adviser / Program Manager at Women’s Initiatives for Gender Justice.]

This amicus curiae brief was submitted by Dr. Rosemary Grey, Global Justice Center (GJC), Amnesty International (AI), and Women’s Initiatives for Gender Justice (WIGJ).

In February 2021, nearly 20 years after the Rome Statute’s entry into force, the International Criminal Court (ICC) secured its first conviction for forced pregnancy as a war crime and a crime against humanity in the case against Lord’s Resistance Army (LRA) commander Dominic Ongwen. In that 2021 judgment, the Trial Chamber found that the enumeration of the crime in the Rome Statute protects the distinct legal interest of personal and reproductive autonomy.

The Global Justice Center, Women’s Initiatives for Gender Justice, Amnesty International and Dr. Rosemary Grey submitted an amicus brief to the Appeals Chamber on the definition of this crime, addressing questions that were raised in Ongwen’s appeal brief. In addition, in February 2022, at the invitation of the Appeals Chamber, we presented oral observations to the Court as amici.

This post summarizes the arguments made in our amicus brief and oral submissions, and very briefly comments on related arguments about the crime of forced pregnancy made by the Prosecution, Defence and victims’ legal representatives in this case.

Forced Pregnancy in the Ongwen case

Ongwen was charged with forced pregnancy as a crime against humanity and war crime against two women – one of whom he impregnated once in the years relevant to the charges, and one of whom experienced two pregnancies in this period.

Both women had been abducted by the LRA, became Ongwen’s so-called “wives” and were subject to systematic sexual violence by Ongwen resulting in their pregnancies. Due to the temporal limitations of the case, it was only these three instances that gave rise to the charges of forced pregnancy. However, the Court was presented with evidence of another ten instances of forced pregnancy that followed a similar pattern.

Under the Rome Statute, the crime of forced pregnancy is narrowly defined and requires material, mental and intent requirements that go beyond the act of forcible impregnation. The definition reads: “‘Forced pregnancy’ means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law.” There is an additional caveat in the definition which states that “[t]his definition shall not in any way be interpreted as affecting national laws relating to pregnancy” which will be discussed separately below.

The Trial Chamber convicted Ongwen of forced pregnancy as a crime against humanity and war crime. With respect to the material elements, it found that Ongwen raped the two women in question, who then became pregnant, and were unlawfully confined due to them being placed under heavy guard and under warning that if they “tried to escape they would be killed.”

With respect to the mental element, it found that due to the nature of Ongwen’s acts, as well as their sustained nature over a prolonged period, Ongwen meant to engage in the relevant conduct. He also had knowledge of the relevant circumstances (that the women in question were pregnant, and that they became so forcibly).

Finally, as to specific intent, the Trial Chamber was satisfied that Ongwen confined the women with the intent of carrying out “other grave violations of international law” – namely, an intent to continue subjecting them to crimes under the Rome Statute including forced marriage, torture, rape and sexual slavery.

Significantly, the Trial Chamber found that the crime is “grounded in the women’s right to personal and reproductive autonomy and the right to family.” (para. 2717) It did not analyse (correctly, in our view) whether this interpretation of forced pregnancy, as defined in the Rome Statute, affected Uganda’s national laws relating to abortion.

In appealing the conviction for forced pregnancy, the Defence raised a series of procedural and substantive challenges to the Trial Chamber’s analysis, including (as relevant to our amicus submissions): the interpretation of specific intent and unlawful confinement; the Chamber’s assertion of personal and reproductive autonomy as the legal interest behind the crime; its failure to consider the effect its interpretation may have on Uganda’s national law; and its failure to take Acholi culture into account.

Elements of Forced Pregnancy

There was little dispute that the elements of forced pregnancy had been correctly identified by the Trial Chamber, but three issues related to the elements warranted further exploration: (1) the definition of unlawful confinement; (2) the element of forcible impregnation ; and (3) the specific intent of “carrying out other grave violations of international law.”

First, on unlawful confinement, the Defence argued that

“[t]he three pregnancies occurred during intense bombardments by the UPDF during the operation Iron Fist. Mr Ongwen, P-0101 and P-0214 were constantly fleeing in attempts to evade intense bombardments and imminent death, making confinement with the requisite intent unlikely. Thus, they were not confined.” (para. 80)

The Rome Statute provides no definition of unlawful confinement as it relates to forced pregnancy. In our submissions, we argued that the war crime of unlawful confinement and the crime against humanity of imprisonment or other severe deprivation of physical liberty are instructive, as is, in line with Article 21(3) of the Rome Statute, international human rights law.

We further argued that a human rights analysis indicates that ‘confinement’ should not be understood narrowly to require internment under lock and key, but as restrictions that – in practice – mean a person cannot leave. Similarly, in looking at the issue in the Foča case, expert commentary has noted that a person should be regarded as “deprived of her physical liberty” even if, “although theoretically able to leave the place of confinement, [she] de facto cannot go anywhere.” (fn 67)

Second, on the issue of forcible impregnation, the Defence asserted that “the Trial Chamber provided no reasoned statement that Mr Ongwen intended to make P-0214 or P-0101 pregnant forcibly.” (para. 84) As we argued, the Rome Statute requires no such intent. The perpetrator must intend to confine the victim, and must do so with one of two specific intents (to affect the ethnic composition of a population, or to commit other grave violations of international law). He/she/they must also know that the victim had been made forcibly pregnant, but there is no requirement that the perpetrator personally intended that outcome.

In fact, there is no requirement that the perpetrator of the crime of forced pregnancy be the same person who caused the victim to become pregnant. If the victim was forcibly impregnated by a third party, that will suffice.

Relatedly, the Rome Statute’s definition of ‘forced pregnancy’ does not require that the victim be unlawfully confined for any specific duration or that the victim give birth. In addition, there is no requirement that the confinement must last for the whole, or even the majority of, the pregnancy. It is sufficient that the person who has been made forcibly pregnant is unlawfully confined for any period of the pregnancy.

Third, on specific intent, we argued that the Trial Chamber correctly found that intending to commit other Rome Statute crimes could satisfy the specific intent “to carry out other grave violations of international law” (para. 2727). However, considering the precedential nature of the Ongwen case, we urged the Appeals Chamber to also clarify that “other grave violations of international law” not only includes other Rome Statute crimes, but that it also includes serious violations of internationally recognised human rights – a position with which the Prosecution agreed.

These rights include the rights to life, to be free from torture and others forms of cruel, inhuman or degrading treatment, and to be free from discrimination on the basis of sex or gender. This could also potentially include violations of sexual and reproductive rights.

Personal, Sexual and Reproductive Autonomy

The Ongwen case included a comprehensive set of charges of and convictions for sexual and gender-based violence, including rape, forced pregnancy, forced marriage, enslavement, and sexual slavery. Significantly, each of these crimes protect distinct legal interests that are not subsumed by the other.

In the case of forced pregnancy, those interests were appropriately identified by the Trial Chamber as “personal and reproductive autonomy.” (para. 2717) These values are widely protected under international and regional human rights interests, as we demonstrated in our amicus brief.

The Trial Chamber’s finding that the crime of forced pregnancy protects “personal and reproductive autonomy” was challenged only by the Defence. It asserted that in making that finding, the Trial Chamber brought “forced pregnancy into the political and ideological debate on women’s personal and reproductive autonomy and the right to family, which the State Parties hoped to avoid through passionate debate and cautious safeguards.” (para. 961)

As we argued, this claim misinterprets the proceedings in Rome, where it was made clear that in fact the protection of reproductive autonomy was the rationale for the inclusion of the crime of forced pregnancy in the Rome Statute, distinct from related crimes, such as rape or unlawful confinement.

In 1997, when the Women’s Caucus for Gender Justice first proposed that forced pregnancy be recognised as a crime in the Rome Statute, the offence was described in terms of “attacks on reproductive integrity.” The proposal was shaped by then recent events in Bosnia and Rwanda, but also by the practice during the Nazi Regime of forced medical experimentation on pregnant people, and by the long history of forced breeding during African enslavement.

During Rome Statute negotiations, it was proposed that the Statute refer to “forced impregnation,” instead of “forced pregnancy”. This proposal was rejected because a large bloc of states understood that ‘forced pregnancy’ involved more than making a person forcibly pregnant, it also involved restricting the victim’s ability to decide whether to proceed with that pregnancy.

The harm recognised by the crime of forced pregnancy is therefore not forcing the victim to give birth but violating the victim’s personal, sexual and reproductive autonomy by unlawfully confining them, including by preventing them from accessing an abortion.

We further observed that unlawful confinement can impact upon reproductive rights even in states where abortion is partially or completely criminalised or otherwise restricted. This is because the confinement obstructs access to essential services that the victim may otherwise have accessed (even if restricted under domestic law).

During the appeals hearing, the Defence appeared to argue that the concept of reproductive autonomy was inconsistent with Ugandan culture. This concern, we submitted, was misplaced for two reasons.

First, because claims about ‘cultural’ concerns rarely acknowledge the reality of different views within a given culture. In most countries there are more progressive and more conservative elements. To argue that reproductive autonomy is out of step with a particular culture therefore risks erasing the voices of local women’s rights actors in that cultural context.

Second, because cultural and religious beliefs cannot be invoked to justify violations of human rights. This point is well established in international human rights law, and the ICC is required to interpret the Rome Statute in a manner consistent with human rights law (see Rome Statute, Article 21(3)).

Relevance of National Abortion Laws

Interrelated with the legal interest protected by the crime, is the question of the crime’s relationship to abortion. This issue was specifically asserted by the Defence who contended that “the Trial Chamber failed to make a ‘reasoned enquiry’ about whether its interpretation of the crime affects the national law of Uganda on abortion.” (para. 962)

However, as we argued, this question is answered by the plain language of the definition of forced pregnancy – that the “definition shall not in any way be interpreted as affecting national laws relating to pregnancy.”

In our brief, we explained that this unusual sentence came about in response to unusual circumstances, being a persistent and unfounded fear that giving the ICC jurisdiction over forced pregnancy would somehow force states to liberalise abortion.

The Rome Conference Official Records show that some states, including Libya, Saudi Arabia, Iran and the United Arab Emirates, expressed concerns about criminalising forced pregnancy. Their concern was that making forced pregnancy a crime in the Rome Statute might imply a universal right to abortion, or might restrict their ability to regulate abortion under national law.

But other states voiced strong support for the inclusion of the crime. For example, Jordan argued that “abortion was not the issue; to force a woman to bear the child of a rapist was torture in extreme form, and should be included as a crime against humanity” (p. 332). Support was also voiced by Liechtenstein and Slovenia.

This debate was resolved by defining ‘forced pregnancy’ as requiring confinement, and knowledge of forcible impregnation, and a specific intent. Those definitional hurdles address concerns that to criminalise abortion under national law is to commit forced pregnancy under the Rome Statute (for example, domestic restrictions on abortion are highly unlikely to involve confining the victim).

The second sentence about national laws was added as a further olive branch to the concerned states. As one expert present during the negotiations stated, “[t]he rather curious second sentence of the definition was inserted as an additional measure to reassure the Catholic and Arab countries [which had expressed concerns about this crime] that the inclusion of forced pregnancy would not interfere in the legal right of States to regulate nationally with respect to pregnancy (anti-abortion laws).” (p. 368)

The function of this sentence, as the Prosecution explained during the Ongwen appeal heading, is to “doubly reassure certain States that the inclusion of the crime would not interfere with States’ rights to regulate nationally on pregnancy.” (p. 49)

Put simply, this caveat merely states the obvious: the ICC has no authority to directly amend, nullify or void national legislation. The drafting history clearly shows that the purpose of this caveat was not to restrict the ICC’s interpretation of the term ‘forced pregnancy’; rather, its sole purpose was to reassure concerned states that the enumeration of ‘forced pregnancy’ as a crime against humanity and a war crime in the Rome Statute does not, itself, invalidate restrictions on abortion under national law.

Conclusion

While the Ongwen case is the first prosecution of the crime of forced pregnancy, it puts a frame to crimes that have occured in a range of conflicts and atrocities situations–including in Bosnia, Rwanda, and recently, potentially Ukraine.

The Appeals Chamber’s first ‘forced pregnancy’ judgment is therefore not only important to victims and survivors in Uganda; it is likely to have resonance in many other current and future conflicts.