On December 23, 2021, PJI Co-Directors Ms. Maxine Marcus and Dr. Kathleen Roberts joined ten other international law experts in submitting an amicus brief to the International Criminal Court’s Appeals Chamber in the Ongwen case.
The amicus brief was in response to the Appeals Chamber’s call for expert submissions on, among other legal issues presented, the legal interpretations of sexual slavery and cumulative convictions.
In February 2021, the ICC Trial Chamber found Dominic Ongwen, a former child soldier and former commander of the Lord’s Resistance Army in Uganda, guilty of 61 crimes committed between July 2002 and December 2005. These included 19 counts of sexual and gender-based crimes, forced marriage as an inhumane act, and forced pregnancy. Consequently, Ongwen was sentenced to 25 years of imprisonment.
In October 2021, the Appeals Chamber called for expert submissions on certain novel and/or complex legal issues presented in the appeal. Most relevant here, the Appeals Chamber invited experts’ legal interpretation of the following crimes: forced marriage, sexual slavery and forced pregnancy, as well as the standards applicable for assessing evidence of sexual violence. The Appeals Chamber was also interested in expert observations on the “permissibility or otherwise of entering cumulative convictions when the conduct in question violates two or more distinct provisions” of the Rome Statute. In the Ongwen case, one such cumulative conviction question arose regarding conduct that concurrently violated the enslavement and sexual slavery provisions of the Rome Statute.
In response to this call, Ms. Marcus and Dr. Roberts joined a group of feminist colleagues to address the legal interpretation of sexual slavery and the permissibility of cumulative convictions given the concurrence of enslavement and sexual slavery as crimes against humanity. They argued that, because sexual slavery is not a form of enslavement but, rather, sexual violence and control constitute indicia of the crime of enslavement, the Appeals Chamber should reverse the Trial Chamber’s decision. Instead, they argued, the Appeals Chamber should enter convictions for enslavement rather than sexual slavery in the instant case, and could do so since the conduct criminalized under sexual slavery is already criminalized under enslavement.
The brief looked to the 1926 Slavery Convention to demonstrate that the crime of enslavement inherently includes crimes of a sexual nature within its ambit. The drafters of the Slavery Convention intended for slavery to encompass, among other things, acts of a sexual nature (including violent sexual acts such as rape, enforced castration, and enforced procreation), as those “systems and practices constituted the exercise of powers of ownership over a person.” When the Assembly of States Parties ratified the Rome Statute and adopted the definition of slavery set out in the Slavery Convention into all relevant enumerated crimes, it adopted this broad understanding of what slavery encompasses—including acts of a sexual nature.
Beyond the Slavery Convention, the experts pressed the point that control over sexuality and other acts of a sexual nature are inherent in all enslavement institutions, systems, and practices. Complete proprietorship over an enslaved person has always included, necessarily, sexual proprietorship. This sexual proprietorship has cut across races, ages, and genders—crucially, it has also cut across time, with the Trans-Atlantic and East African Slave Trades and the Islamic State of Iraq and the Levant alike perpetrating acts of a sexual nature as part of their enslavement regimes.
Additionally, the experts argued that perpetrators of slavery exercise sexual proprietorship over all enslaved persons, regardless of whether the enslaved person is caused to engage in any act of a sexual nature. Causing enslaved persons to engage in sexual acts or restraining enslaved persons from engaging in sexual acts both fall within the definition of enslavement under the 1926 Slavery Convention.
Finally, the experts argued that the Trial Chamber’s interpretation of slavery as a standalone crime separate from sexual slavery excluded victims of enslavement whose experiences may not mimic heteronormative male-on-female rapes but nonetheless include sexual proprietorship. Given that control over sexual autonomy inheres in enslavement, excluding broad categories of harms and victims from the category of sexual slavery led the Trial Chamber to create adverse distinctions based on gender and age. For instance, it characterised enslaved boys who were forced to rape, and enslaved girls who were monitored for the onset of menstruation to determine their marriageability as enslaved but not subjected to sexual slavery. This exclusionary and reductive tack is discriminatory and additionally damaging as it forces enslaved persons seeking to prove sexual slavery to put forth additional evidence beyond, simply, the exercise of ownership and control over their sexuality, which should be sufficient under a broad, accurate conception of enslavement.
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 brief went on to suggest that the Appeals Chamber should enter convictions for enslavement rather than sexual slavery under crimes against humanity because conduct criminalised under sexual slavery constitutes criminal conduct already covered by enslavement.
The Appeals Chamber held a hearing in February 2022 on these issues.
Read the brief here:
Amici Curiae Observations on Sexual- and Gender-Based Crimes, Particularly Sexual Slavery, and on Cumulative Convictions Pursuant to Rule 103 of the Rules of Procedure and Evidence
For more insight:
Alexandra Lily Kather and Angela Mudukuti, Symposium in Pursuit of Intersectional Justice at the International Criminal Court: Ongwen amici curiae Submissions from a Feminist Collective of Lawyers and Scholars, Opinio Juris, 2 May 2022.
Jocelyn Getgen Kestenbaum and Magali Maystre, Symposium in Pursuit of Intersectional Justice at the International Criminal Court: Group One – Sexual Slavery is Enslavement, Opinio Juris, 2 May 2022.