ICC Case Prosecutor v. Ongwen: Forced Pregnancy is a Form of Reproductive Violence and Attack on Reproductive Integrity

On December 15, 2022, the Appeals Chamber of the International Criminal Court (ICC) delivered its judgment in the case of Prosecutor v. Ongwen, upholding its historic conviction of forced pregnancy as a war crime and a crime against humanity. Among other things, the Court affirmed the analysis in an amicus curiae brief submitted in late 2021 by AUWCL Professor Susana SáCouto in partnership with five other experts on gender and international criminal law that forced pregnancy is a form of reproductive violence and an attack on reproductive integrity. The Chamber made clear that the inclusion of the crime of forced pregnancy in the Rome Statute was intended “to protect a woman’s reproductive rights, including the right to be pregnant and to autonomously determine the way in which she carries out her pregnancy.”

Question: You submitted the amicus in late 2011 to the ICC's Appeals Chamber in this case, after the Trial Chamber had already issued its first ruling on the matter in May 2021. Why was your amicus important? What did you specifically wanted to achieve with the amicus?

Susana SáCouto: The Rome Statute that established the International Criminal Court lists a broad range of sexual violence and gender-based crimes as war crimes and crimes against humanity. Among them is the crime of forced pregnancy, which was charged against Dominic Ongwen, commander of the Lord’s Resistance Army, responsible for some of the worst atrocities committed during the conflict in northern Uganda. This was the first opportunity for an international court to address reproductive violence as an international crime. Our amicus brief made clear that forced pregnancy should be recognized as a specific and distinct form of gender violence.  In particular, it argued that forced pregnancy is a violation of the victim’s reproductive autonomy which, in turn, refers to the capacity and possibility to freely make informed decisions relating to one’s reproductive choices, including all aspects concerning impregnation, pregnancy, birth and maternity.  In short, we wanted the Chamber to recognize that forced pregnancy is a form of reproductive violence, which affects a person’s reproductive capacity and targets victims because of their reproductive capacity.

Question: How did the Chamber use your amicus? Did it cite to it, or did it follow your reasoning?

Susana SáCoutoYes, the Chamber did cite to our amicus brief in the judgment. It agreed with our analysis of the crime of forced pregnancy, concluding that the “main focus of this crime is to protect a woman’s reproductive autonomy” and that “the essence of the crime of forced pregnancy is in unlawfully placing the victim in a position in which she cannot choose whether to continue the pregnancy.” Prosecutor v. Ongwen, No. ICC-02/04-01/15 A, Judgment on the appeal of Mr Ongwen against the decision of Trial Chamber IX of 4 February 2021 entitled “Trial Judgment” (15 December 2022), at¶1055

Question: Did you fear that the Appeals Chamber may modify or alter its reasoning on these key points regarding the crime of forced pregnancy? How firm is the ICC's jurisprudence on sexual crimes?

Susana SáCoutoThe Appeals Chamber specifically invited submissions from “[h]ighly qualified scholars and/or practitioners of criminal procedure and/or international law” on various issues relevant to the Defence appeal of Ongwen’s conviction, including the argument that the Trial Chamber had erred in its legal interpretation of the crime of forced pregnancy. As this was the first opportunity for any international tribunal to address the specific elements of the crime, it was unclear how the Appeals Chamber would approach this question.

Reproductive autonomy has been recognized in a broad range of international instruments, including the 1993 Vienna Declaration and Programme of Action,  the 1994 Cairo Programme of Action,  the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women,  the 1995 Beijing Declaration and Platform for Action, and the Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa.  Human rights bodies have also recognized the inherent value of women’s reproductive autonomy and reproductive health, as well as the existence of reproductive violence as a specific form of control and coercion over women’s bodies, explicitly acknowledging forced pregnancy as a violation of women’s human rights, that can amount to torture or cruel, inhuman, or degrading treatment. We wanted to ensure that the Chamber’s interpretation and application of the crime of forced pregnancy was informed by the recognition and protection of reproductive autonomy in international lawWe also wanted to ensure that the Chamber recognized that victims of forced pregnancy endure distinct harms stemming from the pregnancy itself, such as forced childbirth, the subsequent forced maternity, and potential stigma upon return to the victim’s community post-conflict.

Question: This judgment has been a milestone for the development of sexual crimes as part of the notion of crimes against humanity. What impact beyond the ICC do you anticipate this judgment will have on other areas of international law, such as human rights law or comparative criminal law?

Susana SáCouto: The Appeals Chamber judgment recognized that forced pregnancy prevents victims from exercising their sexual and reproductive autonomy, violating their rights to bodily integrity, to health, to determine the number and spacing of their children, to equality, to privacy, to life and to be free from torture and degrading treatment, and can prevent the realization of many other human rights. At a time when reproductive rights are under threat around the world, including in the U.S., I think the Court’s decision is particularly timely. The recognition by an international court that forced pregnancy is an infringement of an individual’s reproductive autonomy and can amount to a grave international crime sends the important message that it is a form of gender-based violence that not only violates human rights but also warrants criminalization. Notably, at least 43 states have enacted domestic legislation criminalizing forced pregnancy as an international crime.  While the U.S. is not a party to the Rome Statute, the judgment clearly stands for the proposition that the experiences and voices of all who are survivors of forced pregnancy matter.

Question: The War Crimes Research Office that you lead here at AUWCL has evolved into one of the key hubs worldwide for the study of international criminal law. The advancement of the international recognition of reproductive integrity was among your top priorities. Can you tell us some of the other focus areas of the War Crimes Research Office and what may be expected in the future?

Susana SáCoutoThe War Crimes Research Office has had a focus on gender and international criminal law since 2008, when it hosted a conference with WCL’s Women and the Law Program on Prosecuting Sexual and Gender-Based Crimes Before International/ized Criminal Courts. Since then, it has worked with partners in various parts of the world, including in Bosnia and Herzegovina, the Central African Republic and different countries in Latin America, to provide the legal research tools, expertise, and training necessary to combat impunity for various forms of gender-based violence committed in periods of conflict, mass violence or repression.

 In 2023, the WCRO will continue to promote accountability for gender-based atrocity crimes through a variety of advocacy, education, training, and research initiatives. For instance, this spring the WCRO will co-sponsor a two-day convening with members of Latin American Network for Gender-based Strategic Litigation (ReLeG), a network that brings together litigators, academics, legal practitioners, and activists committed to ending gender-based violence and promoting gender equality in Latin America. The Office has also recently launched a new project in collaboration with the Laboratorio de Justicia y Política Criminal, a Colombia-based non-profit organization, to enhance the impact of Colombia’s Special Jurisdiction for Peace (known by its Spanish acronym JEP), a transitional justice mechanism set up through the peace accords that ended the 50-year conflict in that country. The project focuses on various aspects of the JEP, including strengthening the capacities of relevant JEP staff to address gender-based crimes and to apply a gender perspective and an intersectional approach in the implementation of their mandate.