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Amicus Brief - The Prosecutor v. Dominic Ongwen

Introduction

Having been granted leave to submit amicus curiae observations, we respectfully offer these observations about the Rome Statute’s definition of ‘forced pregnancy’. This is the first occasion that the Appeals Chamber will provide its interpretation of this crime, which was expressly listed in an international instrument for the first time in the Rome Statute.

The Rome Statute enumerates forced pregnancy as a crime against humanity and as a war crime in both international and non-international armed conflicts. The term ‘forced pregnancy’ is defined in Article (Art.) 7(2)(f) of the Rome Statute (RS), which states: ‘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. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.

Our amicus curiae brief addresses three issues pertinent to this definition: the irrelevance of national laws relating to pregnancy when interpreting the Rome Statute’s definition of forced pregnancy; the elements of ‘forced pregnancy’ as a war crime and a crime against humanity; and the grounding of the crime of forced pregnancy in human rights that protect personal, sexual, and reproductive autonomy.

In doing so, we recall that the Court must interpret the Rome Statute and Elements of Crimes, including as they relate to forced pregnancy ‘consistent with internationally recognised human rights’ and ‘without any adverse distinction founded on grounds such as gender’ pursuant to Art. 21(3) RS. Additionally, the Court must interpret the Rome Statute in light of its object and purpose, namely, to 'put an end to impunity for the perpetrators of most serious crimes of concern to the international community as a whole’, including the full range of sexual and gender-based crimes enumerated in the Statute. In light of their expertise, amici also seek to provide guidance on internationally recognised human rights relating to personal, sexual, and reproductive autonomy, and explain their relevance to the interpretation of the Rome Statute’s crime of forced pregnancy.

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Tags: Abortion, International Criminal Court, Legal Brief