Symposium in Pursuit of Intersectional Justice at the International Criminal Court: Group Two – The ‘Other Inhumane Act’ of Forced Marriage in Prosecutor v Ongwen

[Valerie Oosterveld is Professor of International Law at Western University’s Faculty of Law (Canada) and Associate Director of the Centre for Transitional Justice and Post-Conflict Reconstruction.

Kathleen M. Maloney is Visiting Law Professor at Lewis & Clark Law School and Founding Board Member of the international human rights organization, Just Planet.

Melanie O’Brien is Associate Professor of International Law at the University of Western Australia and President of the International Association of Genocide Scholars.]

When the International Criminal Court’s Appeals Chamber issued its call for expert observations on sexual and gender-based violence, including forced marriage, in the case of Prosecutor v Ongwen, our team – consisting of Erin Baines, Anne-Marie de Brouwer, Annie Bunting, Eefje de Volder, Kathleen M. Maloney, Melanie O’Brien, Osai Ojigho, Valerie Oosterveld, and Indira Rosenthal – came together quickly. All of us have written about or done research and advocacy on the topic of forced marriage and had closely followed the Ongwen case. We were aware of the importance of the moment: the Appeals Chamber would be considering forced marriage for the first time. We submitted an amicus curiae brief covering several topics, including the following four themes.

Forced Marriage is Not a “New” Crime

Forced marriage is not listed in a standalone provision in the Rome Statute. Consequently, in the Ongwen case (and other ICC cases), forced marriage was charged as an ‘other inhumane act’ (crime against humanity). Due to the lack of a standalone provision, at every step in the process, including on appeal, the Defence argued (paras. 147-148, 978) that forced marriage was a “new” crime and therefore violated legality principles.

We began our brief by arguing that this was a mischaracterization, as Ongwen was convicted by the Trial Chamber not of forced marriage as a standalone crime, but as the crime against humanity of ‘other inhumane acts’ (see paras. 3026, 3069, 3116). This category – ‘other inhumane acts’ – has been recognized for over 75 years – from the Nuremberg Charter through to the Special Court for Sierra Leone (SCSL) Statute. The ‘other inhumane acts’ category therefore fulfills nullum crimen sine lege requirements. Indeed, the SCSL Appeals Chamber (at para. 198) indicated that this category has crystallized into customary international law. The Extraordinary Chambers in the Courts of Cambodia (ECCC) further specified that nullum crimen requirements attach only to the category of ‘other inhumane acts’ and not to the different sub-categories thereof, like forced marriage (para. 378).

The SCSL and the ECCC have rendered convictions for forced marriage as an ‘other inhumane act’ in cases originating from factual circumstances spanning four decades.

Thus, we posited that the Ongwen Trial Chamber was correct in holding that forced marriage fits within the crime against humanity of ‘other inhumane acts’ and satisfies nullum crimen. The Prosecution made similar arguments (paras. 563-564), including in response to the amici curiae observations (para. 43).

Forced Marriage is a Violation of Relational Autonomy + Associated Harms

We argued that forced marriage is a particular type of ‘other inhumane act’ that can be distinguished from other enumerated acts recognized in Article 7(1) of the Rome Statute. While forced marriage is similar in nature and gravity to the enumerated acts listed in Article 7(1), it also reflects a course of conduct which differs from those acts. That distinct course of conduct is composed of two types of harm: (1) the violation by the accused of the victim’s relational autonomy (including resulting social ostracization); and (2) a constellation of rights violations. 

The first type of harm – the violation of relational autonomy – has been described under international human rights law as the denial of the right to freely and consensually enter into marriage. Under international criminal law, this idea is articulated as the imposition of a “conjugal union” on a victim – relationships in which the victim is forcibly attached to a particular person inside or outside of domestic marriage law during armed conflict or in the context of mass atrocity.

The particular and enduring harms that stem from this aspect of forced marriage are numerous: stigmatization, social and cultural ostracism, mental trauma, a serious attack on the victim’s dignity, and the deprivation of the victim’s fundamental rights to choose a spouse and/or a conjugal relationship, all in a context of extreme coercion.

In addition, victims of forced marriage suffer a constellation of rights violations which may differ from situation to situation. In the Ongwen case, these included, inter alia, abduction, rape, sexual slavery, enforced exclusivity in the sexual and conjugal relationship, forced childbearing and childrearing, forced domestic labor, forced portering, physical and psychological violence, adverse effects on children born of forced marriage, and the constant threat of death.

Thus, as an ‘other inhumane act’, forced marriage differs from the other enumerated acts in Article 7(1) in two ways: the forced ascription of the status of ‘spouse’ is not reflected in the other enumerated acts, and, while certain of the constellation of rights violations may overlap with the enumerated acts (such as rape, sexual slavery, and enslavement), some may not.

The ‘Other Inhumane Act’ of Forced Marriage is a Continuing Crime

The Defence argued that forced marriage is not a continuing crime, and that Ongwen was not responsible for forced marriages that originated before he was promoted to brigade commander on 4 March 2004 and continued after this date (para. 984). We argued that forced marriage as an ‘other inhumane act’ is a continuing crime because it is carried out over time and in multiple locations, and includes forced marriages in place while Ongwen was brigade commander, regardless of when they began. We supported the finding of the Ongwen Trial Chamber (paras. 2036, 2752) that forced marriage does not consist only of the moment the forced relationship is declared; it endures during the entire period of that relationship and is about the conjugal association in its entirety. We pointed out that the SCSL had confirmed the classification of the ‘other inhumane act’ of forced marriage as a continuing crime, because victims were obligated to remain in the forced marriage either until they escaped or the perpetrator group lost power, sometimes for years. In the LRA, many of the forced marriages also lasted for years. Forced marriage is not simply the act of a marriage ceremony or assignment to a ‘spouse’, but the entirety of the forced relationship.

Forced Marriage Raises Distinct Considerations for Sentencing and Reparations

Our brief also made arguments related to sentencing and reparations, which focused on the gravity of the crime and specific aggravating circumstances that warrant consideration in sentencing decisions.

Ongwen was convicted of forced marriage as an ‘other inhumane act’, and sentenced to 20 years of imprisonment for this crime against humanity. In making this decision, the Court considered aggravating circumstances, such as the young age and vulnerability of the victims, the gender of the victims (noting the discriminatory nature of the crime), and the high gravity of the crime. We argued that the Trial Chamber was correct in these considerations, as forced marriage is a gendered and ageist act because girls and young women are most often the target victims. Ongwen’s youngest ‘wife’ was 11 years old when she was ‘distributed’ to him. Sentencing decisions for the ‘other inhumane act’ of forced marriage must take into account the age-related vulnerability of young victims and the gender-discriminatory nature of the crimes as aggravating factors.

We also argued that the long-term physical and mental health impacts of forced marriage on victims should be considered as an aggravating factor in sentencing and in awarding reparations. Victims of forced marriage may experience permanent injury or disability due to forced physical labor and sexual violence, including mental illness, chronic pain, damage to reproductive health, and an inability to have children. Women and their children born of forced marriage within the LRA also experienced rejection, stigma, violence, socio-economic marginalization, and issues of identity and belonging within their communities as a result of forced marriage.

Response of the Parties and Arguments of Other Amici

Our arguments were well-received by the Prosecution and victims’ counsel, both in written and oral submissions. For example, the Prosecution endorsed our analysis that the underlying conduct and harms of forced marriage as an ‘other inhumane act’ are similar in character and gravity to, but also distinct and separate from, other enumerated crimes against humanity, such as sexual slavery (paras. 42, 45). Ongwen’s imposition of spousal status on young girls and women, the Prosecution concurred, caused great suffering or serious bodily, mental and physical injuries, as well as a plethora of human rights violations resulting from this denial of relational autonomy (para. 45). Additionally, the Prosecution cited with approval our argument that victims of forced marriage and the children from these non-consensual conjugal unions suffered unique trauma and ongoing stigmatization that endured post-conflict, making this inhumane act a continuing crime against humanity (paras. 45-46). The Legal Representative of Victims similarly endorsed our explanation of the law on forced marriage (para. 53).

The Defence, in its written response, mischaracterized our brief as arguing that the violation of relational autonomy was a “separate element” of the crime, and disagreed that the inhumane act of forced marriage was a continuing crime. The Defence’s oral response reiterated the nullum crimen argument, but added two alternative arguments: that there was no marriage (it was “mere cohabitation” [p. 89] between the girls and their ‘spouses’) or that the relationship was not forced (as Joseph Kony gave consent for their ‘marriage’ in place of their parents under Acholi tradition [p. 88]). The Legal Representative of the Victims countered this by referring to expert evidence on marriage under Acholi culture introduced at trial (pp. 92-93) and we also pointed out that the Defence’s categorization of forced marriage ignores the coercive circumstances of armed conflict and atrocity within which the forced marriages occurred (p. 98) and which vitiate consent.

While other amici commenting on forced marriage took positions similar to ours – such as Meyersfeld and SALC, and Zakerhossein – not all did. For example, the brief by Prof. Jean Allain argued that the “possible crime of forced marriage” was raised during the drafting of the Rome Statute and that the drafters understood and accepted that forced marriage was a form of sexual slavery. In our oral submission, we pointed out that such a discussion did not take place (pp. 67-68).

Our amicus curiae submission on forced marriage forms part of the ICC’s record at a significant point in the history of international criminal law: the world’s first permanent international criminal tribunal is about to rule at the appellate level on forced marriage. The ICC’s Appeals Chamber will be establishing the applicable law on a grave and gendered act that unfortunately takes place all too often in today’s armed conflicts. This means that an amici curiae intervention in this case could significantly contribute to the development of the legal parameters of forced marriage. By inviting expert submissions at both the written and oral stage, the Chamber has demonstrated that is clearly taking its responsibility to understand, define, and determine forced marriage as an ‘other inhumane act’ very seriously.

*Research assistance for the team was provided by Hannah Allen and Michelle Bordoni.