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

Excerpt of Opinio Juris article co-authored by GJC President Akila Radhakrishnan.

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.

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Symposium in Pursuit of Intersectional Justice at the International Criminal Court: Ongwen amici curiae Submissions from a Feminist Collective of Lawyers and Scholars

Excerpt of Opinio Juris article co-authored by GJC Senior Legal Advisor Angela Mudukuti.

On 4 February 2021, the International Criminal Court (ICC)’s Trial Chamber IX found Dominic Ongwen, a former commander in the Lord Resistance Army (LRA), guilty of 61 counts of war crimes and crimes against humanity committed in Northern Uganda between 1 July 2002 and 31 December 2005. The 61 counts included 19 counts of sexual and gender-based crimes (SGBC) and notably among them charges of sexual crimes tried at the ICC for the first time, namely forced marriage as an inhumane act and forced pregnancy. On 6 May 2021, Trial Chamber IX sentenced Dominic Ongwen to 25 years of imprisonment. The Defence filed its appeal briefs against the conviction in July and against the sentence in August 2021. Between 14 and 18 February 2022, the Appeals Chamber (AC) held the appeal hearing.

Following the Defence’s appeal and prior to the AC hearing, on 25 October 2021, the AC  issued an order inviting “expressions of interest as amici curiae in judicial proceedings” with respect to the case against Dominic Ongwen. Particularly, the AC sought to receive observations from “qualified scholars and/or practitioners of criminal procedure and/ or international law, mental health law and/or neuroscience and law” on, inter alia, “sexual and gender-based crimes, especially the legal interpretation of the crimes of forced marriage, sexual slavery and forced pregnancy as well as the standards applicable to assessing evidence of sexual violence”. A group of feminist lawyers and scholars put their heads together to form what we will loosely call a Feminist Collective and submitted four separate amici briefs.  As an introduction to this symposium, this blog details the process and shares our personal reflections as members of the Collective.

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Enhancing Cooperation & Representation Among ICL Actors Through Intersectional Approaches

The Transitional Justice Institute (TJI) at Ulster University in collaboration with the Unit for Global Justice at Goldsmiths University and the Emergent Justice Collective (EJC)

Operationalising intersectionality requires considering the constraints and opportunities of the systems and institutions involved.

It is crucial to address power relations and cooperation between the different actors to improve access to justice for collectivities.

Discussants

  • Mariana Ardila Trujillo
  • Carmen Cheung
  • Angela Mudukuti
  • Michelle Jarvis
  • Mryna McCallum

Facilitator

  • Amanda Ghahremani

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Civil Society Open Letter on New ICC Gender Persecution Policy Paper

Dear Prosecutor Khan:

It is with great enthusiasm that we write to you about the development of the comprehensive policy paper to advance accountability for the crime against humanity of persecution on the grounds of gender.

In the 1990s, MADRE housed the Women’s Caucus for Gender Justice, a worldwide coalition of women’s rights activists working to address gender gaps in the draft Rome Statute. In 2018, MADRE and our allies once again led an international coalition that successfully further affirmed the understanding of gender persecution under international law for the draft crimes against humanity treaty.

Today, MADRE is serving as a Secretariat for civil society organizations from across the world to help ensure broad civil society input. To this end, MADRE has compiled and consolidated the priorities and recommendations from organizations across the world for your consideration. As you will see below, 222 feminist organizations and academic institutes from 80 countries and territories have joined this statement of principles and priorities that we now share with you.

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Akila Radhakrishnan Presents to International Criminal Court on the Crime of Forced Pregnancy

In hearings on the appeal of Ugandan war criminal Dominic Ongwen, GJC President Akila Radhakrishnan delivered a presentation to the International Criminal Court on the crime of forced pregnancy, which Ongwen was convicted of in 2021. Akila, along with Dr. Rosemary Grey, presented on behalf of a group of organizations that submitted an amicus brief in the case. These organizations include GJC, Amnesty International, and Women's Initiatives for Gender Justice.

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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Intent to File on Forced Pregnancy - The Prosecutor v. Dominic Ongwen

Introduction

In response to the Appeals Chamber’s order, we respectfully seek leave to file amicus curiae observations on the Rome Statute’s definition of ‘forced pregnancy’, noting that this is the Appeals Chamber’s first opportunity to interpret this crime.

Expertise

Dr Rosemary Grey (lecturer, Sydney University Law School) is an expert in gender issues in international criminal law. Her publications include 13 peer-reviewed journal articles and her monograph Prosecuting Sexual and Gender-based Crimes at the International Criminal Court (Cambridge University Press, 2019). From 8 June to 8 September 2015, she worked with the ICC Office of the Prosecutor through the Internship and Visiting Professional Programme, where she assisted with legal research on topics including forced pregnancy. Women’s Initiatives for Gender Justice (WICJ) is an international women’s human rights NGO advocating for accountability for sexual and gender-based crimes through the ICC’s work, including with conflict affected communities in Uganda, since 2004. It is the successor of the Women’s Caucus for Gender Justice (1997-2003) that brought together over 300 women’s human rights advocates and organizations in the Rome Statute negotiations. Global Justice Center (GJC) is an international NGO advocating for justice and accountability for sexual and gender-based violence and violations of reproductive autonomy in situations including Syria, Myanmar, and others. Its 2018 report, Beyond Killing: Gender, Genocide, & Obligations Under International Law, was the first of its kind to offer a comprehensive gender analysis of the crime of, and international legal obligations surrounding, genocide. Amnesty International (AI) is a worldwide movement of people who campaign for internationally recognized human rights to be respected and protected, with over 50 years’ experience documenting and campaigning against human rights violations around the world.

First proposed argument: Irrelevance of national law

Art. 7(2)(f) of the Rome Statute 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.’ The Trial Chamber stated that the final sentence of Art. 7(2)(f) ‘does not add a new element to the offence – and is thus not reproduced in the Elements of Crimes – but allays the concern that criminalising forced pregnancy may be seen as legalising abortion. Mr Ongwen appears to argue that the Trial Chamber erred by interpreting the crime of ‘forced pregnancy’ without analysis of abortion laws in the state where the crimes occurred (Uganda). That argument is incorrect. National laws on abortion have no bearing on the Rome Statute’s definition of ‘forced pregnancy’. The second sentence of Art. 7(2)(f) does not make the ICC’s jurisdiction over ‘forced pregnancy’ dependent on national legislation, nor create an element of the crime. It simply affirms that the legality of the relevant conduct under national law is distinct from its legality under international law. This is true of all crimes in the Rome Statute, but was made explicit for forced pregnancy in order to satisfy states who were concerned that defining forced pregnancy as a crime in the Rome Statute would affect their legal ability to regulate abortion under national law. Thus, regardless of whether conduct amounting to ‘forced pregnancy’ is consistent with national law, an individual who commits such conduct could be prosecuted for ‘forced pregnancy’ as a war crime and/or crime against humanity under the Rome Statute (if the contextual elements for were met, and subject to the ICC’s jurisdiction and admissibility rules). Victims in states with strict abortion laws do not enjoy lesser protections under the Rome Statute than those in states with more liberal abortion laws.

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Adjudicating Gender-Based Persecution At The ICC & Beyond: A Monumental Step And The Challenges That Lie Ahead

Historically speaking, gender has not been viewed as a relevant category of persecution in international criminal law, whereas victimisation on the basis of race, religion, politics, nationality and ethnicity has long been considered relevant. This was also the case with persecution, a fundamental crime against humanity. In the Rome Statute of the International Criminal Court (ICC), however, ‘gender’ was included among the list of relevant grounds. This was a monumental step forward for the recognition of the plethora of ways in which women and men are targeted in the context of widespread or systematic attacks against civilian populations. 

Despite this, until late 2019, no suspect had been charged for persecution based on gender but rather on other grounds only. What are the main causes of this significant lacuna and how are we to overcome challenges in the future to ensure adequate recognition of these crimes, their successful prosecution and a victim-sensitive approach to the collection of evidence?

Open Civil Society Letter To ICC Prosecutor Fatou Bensouda

Dear Madam Prosecutor,

As your term as prosecutor of the International Criminal Court (ICC) draws to a close, we are writing to thank you for your longstanding service and significant contributions to the ICC, as well as to acknowledge the progress that the Office of the Prosecutor has made during your tenure.

While civil society organizations have identified areas for improvement and will continue to advocate for changes to ensure effective investigations and prosecutions, the office has made considerable advances in a number of situations and preliminary examinations under your leadership.

We especially admire the high degree of independence you have exhibited during your mandate. Your office has opened investigations in the face of immense pressure and politicized opposition. You have done this work at great personal and institutional cost. Developments on the ground in Myanmar, Afghanistan, and Palestine over the last few months have confirmed that accountability in those and other situations is essential, especially when the ICC is the only remaining option for justice. We will call on the next prosecutor to build on this legacy and continue to ensure that the court fulfils its mandate, regardless of the nationality or position of alleged perpetrators.

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The Ongoing Rohingya Genocide and Opportunities for International Justice in Post-Coup Myanmar

Description:

Since the February 1 military coup in Burma, there has been unprecedented widespread support for justice and accountability for military atrocities perpetrated against the people of Burma. This has included supportive statements from leaders within the pro-democracy National Unity Government (NUG). However, questions remain about how these new calls for accountability will complement and support ongoing efforts for international justice, which focus largely on abuses committed against the Rohingya.

During this online event, activists from Burma will give an update from the ground and international justice experts from around the world will share an update of the ongoing international justice processes against Burma at the International Court of Justice, the International Criminal Court, and in Argentinian courts through a Universal Jurisdiction case. Panellists will also share insight on how the NUG could work for international justice efforts to build more solidarity among all of Burma’s people, including the Rohingya and other major ethnic minorities.

Participants will include:

  • Akila Radhakrishnan (Moderator), President, Global Justice Center.
  • Tun Khin, President of Burmese Rohingya Organisation UK.
  • M. Arsalan Suleman, Foley Hoag, legal counsel to The Gambia in its case against Myanmar at the International Court of Justice.
  • Erin Rosenberg, International Legal Expert and former Legal Officer at the ICC Trust Fund for Victims.
  • Thinzar Shunlei Yi, Activist, Action Committee for Democracy Development .
  • Ambassador Stephen Rapp, Former Ambassador-at-Large for War Crimes Issues and Distinguished Fellow at the US Holocaust Memorial Museum’s Simon-Skjodt Center for the Prevention of Genocide.

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President Biden Repeals ICC Sanctions

NEW YORK — The Biden administration today repealed sanctions against the International Criminal Court. 

The sanctions, levied against Prosecutor Fatou Bensouda and other court officials, were issued by President Trump last year following the court’s announcement of an investigation into potential war crimes committed by US military forces in Afghanistan.

Akila Radhakrishnan, president of the Global Justice Center, issued the following statement:

“The Biden administration did the right thing today by ending this reckless assault on a critical and independent judicial institution. Former President Trump’s sanctions were issued to help the US and its close allies evade accountability for their own human rights abuses, but their impact went much further by targeting court officials and their urgent work.

“Repeal is a start, but if the Biden administration wishes to be a true champion of human rights and the rule of law, it must fundamentally shift the US relationship with the court. This must include a genuine effort to ratify the court’s Rome Statute to demonstrate that the US commitment to justice is not merely rhetorical.

“For too long, the US approach to the court has been hypocritical, cementing a belief that it is beyond reproach and above the law. It’s time for the US to take its own human rights obligations seriously and submit itself to the international institutions they champion, thus beginning a robust, healthy engagement with this vital institution.”

Biden Plans to Repeal Trump-Era Sanctions on ICC

Excerpt of Foreign Policy article that quotes GJC President Akila Radhakrishnan.

After Trump, “they’ve done a reasonable job but they’ve also had a pretty low bar to clear,” said Akila Radhakrishnan, president of the Global Justice Center, a nonprofit advocacy group.

Radhakrishnan said even if Biden lifts the sanctions, the fact that the United States imposed sanctions in the first place could still cause lasting damage to Washington’s reputation on global human rights.

“What it shows is that the U.S. is willing to allow things like self-interest to get in the way of independent judicial institutions when it finds them inconvenient for its own policies,” she said. “That, considering the things we say we stand for and advocate for worldwide, is deeply problematic.”

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International rule of law: historic firsts in ICC’s conviction of Dominic Ongwen

Excerpt of International Bar Association article that quotes GJC Legal Advisor Danielle Hites.

Danielle Hites is a legal advisor at the Global Justice Center and previously worked at the Coalition for the ICC. She was pleased the Court foregrounded victims and did not just charge sexualised and gendered crimes under the catch-all category of sexual violence.

‘There were also charges of enslavement in general, torture and outrage upon personal dignity. It was an important distinction’, she says. ‘They’re recognising that sexual and gender-based violence can’t just be siloed into one category, there are gendered elements to all of these crimes and they can be committed in gendered ways and often are’.

But recognising the gendered perpetration of crimes in court is very difficult – partially, Hites says, because it is a more specific kind of harm, but also because the legal frameworks for convictions were created to make it more difficult.

Reaching this conviction for forced pregnancy was particularly challenging, as the Court noted in its discussion, because of the history of its incorporation into the Rome Statute. Hites says, ‘there were so many countries that either didn’t want forced pregnancy included in the Statute because they were concerned that their own national laws on reproductive autonomy would be implicated, or they felt it was already covered by unlawful detention or rape.’

Because of the resulting narrow definition and ‘ridiculous’ high standards for conviction of the crime, Hites says, there are ‘so many barriers to access to justice’.

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Obligation to Act: International Action and the Fight Against the Coup in Myanmar

Description:

While the country is still reeling from the Burmese military's illegitimate coup on February 1, the international community have launched a slate of new sanctions against military leaders amid public condemnations of the Tatmadaw's use of deadly violence against peaceful protests. Multiple questions about Burma's future remain unanswered, however, particularly as they relate to international support for justice and accountability, ethnic peace and the creation of a true democratic federal union, and the Rohingya genocide crisis.

During this online event, international justice experts from around the world will speak alongside civil society leaders from Burma to share their perspectives on how international and grassroots mobilization around ongoing international justice processes and mechanisms can contribute to a united and multi-ethnic anti-coup movement that ends the Burmese military dictatorship and its violent reign of impunity.

Panelists include:

  • Akila Radhakrishnan (Moderator), President of the Global Justice Center.
  • Tun Khin (President of Burmese Rohingya Organisation UK)
  • M. Arsalan Suleman (Foley Hoag, legal counsel to The Gambia in its case against Myanmar at the International Court of Justice)
  • Naw May Oo (Activist and Advisor to the Karen National Union)
  • Thinzar Shunlei Yi (Activist, Action Committee for Democracy Development)
  • Tomas Quintana (Former UN Special Rapporteur for Human Rights on Myanmar, lead counsel in the current Universal Jurisdiction case in Argentina)

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Biden faces calls to lift Trump's controversial ICC sanctions

Excerpt of Al-Monitor article that quotes GJC President Akila Radhakrishnan.

Biden has so far rejoined the World Health Organization, reentered the Paris Agreement on climate change and announced it would “reengage” with the UN Human Rights Council before seeking full membership later this year. In a Wednesday address outlining the Biden administration’s foreign policy strategy, Blinken committed the United States to leading with diplomacy.

“Issuing sanctions against an independent prosecutor elected through the multilateral system isn't exactly a diplomatic maneuver,” said Akila Radhakrishnan, president of the New York-based Global Justice Center. “While the Biden administration may disagree with some of the decisions that are being made by the prosecutor on the court, it’s not in line with their own professed values around human rights, around accountability, to take measures against an independent prosecutor."

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The International Criminal Court Still Has Work to Do on Gender-Based Crimes

Excerpt of Ms. Magazine op-ed from GJC Staff Attorney Danielle Hites.

The International Criminal Court recently convicted Dominic Ongwen, a former commander in the Lord’s Resistance Army (LRA), of war crimes and crimes against humanity. Notably, this was both the first conviction for forced pregnancy in the court’s history and only the second standing conviction for any sexual and gender-based crimes. While the case establishes a roadmap for the incoming prosecutor of the court to effectively charge and prosecute sexual and gender-based crimes, it also reinforces the unduly burdensome standards applied to reproductive violence.

Ongwen’s case involves the systemic abduction of girls and young women in Northern Uganda, who were awarded like chattel to LRA soldiers. In addition to forced pregnancy, the court charged Ongwen with rape, sexual slavery, forced marriage, enslavement, torture and outrages on personal dignity. Critically, it charged forced pregnancy as a crime against humanity and rape as a war crime.

In the nearly 20 years since the International Criminal Court was established, violence targeting individuals for their perceived responsibility for reproduction—typically cisgender women and girls—has been an integral tool in nearly every mass atrocity. The absence of charges, prosecutions, and convictions for these gender-based crimes up until this point demonstrates the need for greater gender expertise at all stages of cases.

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British Human Rights Lawyer to Be Next ICC Chief Prosecutor

Excerpt of Voice of America article that quotes GJC President Akila Radhakrishnan.

The court was established in 1998 and began hearing cases in 2002, after 60 countries had ratified the Rome Statute. Today, 123 nations are members.

“We welcome the election of Karim Khan as the next ICC prosecutor and look forward to working with him to deliver justice to victims of international crimes, including survivors of sexual and gender-based violence,” said Akila Radhakrishnan, president of the Global Justice Center. “Prosecutor Bensouda has taken important steps to center a gender perspective and approach to the work of the prosecutor’s office, and we hope that Prosecutor Khan will continue to build on this legacy.”

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International Law and the Plight of the Rohingyas: Insights from International Dispute Settlement

The situation of the Rohingya community in Myanmar and Bangladesh is under intense scrutiny by the international community. Currently, a case is pending before the International Court of Justice concerning Myanmar’s alleged responsibility for genocide, an investigation is on-going at the International Criminal Court and several fact-finding mechanisms are working on gathering evidence of the events. This panel will address whether and how international dispute settlement can assist in solving the numerous, complex issues raised by the events in Rakhine State (Myanmar).

Speakers:

  • Michael A. Becker, Adjunct Assistant Professor, Trinity College Dublin
  • Miriam Cohen, Professeure Adjointe, University of Montreal
  • Akila Radhakrishnan, President, Global Justice Centre
  • Yasmin Ullah, Human Rights Activist, Member of the Rohingya community

Non-Governmental Organizations, Faith-Based Groups, Legal Professionals, Experts, and Former Government Officials Unequivocally Oppose U.S. Sanctions Against the International Criminal Court

The undersigned organizations and individuals write to express grave concerns and unequivocally oppose the Trump administration’s use of the sanctions authority of the United States to attack the International Criminal Court (ICC), an independent judicial institution dedicated to combatting impunity for the gravest crimes known to humanity.

Many of the undersigned spoke out against steps in this direction taken earlier this year by the U.S. administration. We now issue this further statement because it is uniquely dangerous, extreme, and unprecedented to utilize a mechanism designed to penalize criminals, their aiders, and abettors, against an independent judicial institution. Asset freezes and entry restrictions are tools intended to combat individuals and entities constituting a threat to U.S. national security. By applying these measures to a court that 123 countries – and on two occasions, the United Nations Security Council – have entrusted with providing accountability for atrocity crimes, the United States has brought upon itself the stigma of siding with impunity over justice. The administration’s actions jeopardize the ability of desperate victims to access justice, weaken the credibility underpinning the use of sanction tools in other contexts, and put the United States at odds with its closest allies.

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ICC Case Could Make History with Gender Prosecution

Excerpt of Women's Media Center op-ed from GJC Legal Intern Sarah Coniglio.

Last week, the International Criminal Court (ICC) began its presentation of what could be a landmark case for the prosecution of gender-based crimes. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (“Al Hassan”) has been charged with war crimes and crimes against humanity, including torture, rape, sexual slavery, and gender persecution surrounding Mali’s 2012-2013 internal armed conflict. The ICC has not had a standing conviction for persecution on the basis of gender due to the overturning of the conviction of former Congolese military leader, Jean-Pierre Bemba, in 2018.

The Al Hassan case has the potential to shine light on the unique harm perpetrators commit against individuals based on their gender, which enforces patriarchal social norms and increases the potency of their crimes. It could also chart a path forward for international criminal law to define gender.

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