The Contribution of the ICC to the Characterization of Forced Marriage as an Autonomous Crime Against Humanity: the Conviction of Dominic Ongwen

International Criminal Court, Trial Chamber IX, 4 February 2021, The Prosecutor v. Dominic Ongwen


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On February 4, 2021, the Trial Chamber of International Criminal Court (ICC) unanimously convicted Dominic Ongwen, a former commander of the Ugandan rebel group, the Lord’s Resistance Army (LRA), for an unprecedent list of charges, namely 61 out of the 70 counts of war crimes and crimes against humanity he had been accused of. Dominic Ongwden, who was recruited when he was a child, has been condemned for killing, torturing, abducting, and raping an impressive number of civilians.

The judgment sets a precedent as it is also the first conviction resulting from the investigation in Northern Uganda which started 17 years ago, and it is the first time that a truly international criminal court has found a person guilty of forced marriage. In this last respect, the decision makes a fundamental contribution to the development of international criminal law in matters of sexual offences.

It is worth noting in fact that the question as to whether forced marriage can be criminalized as such, instead of being subsumed under other crimes, has been broadly debated before two internationalized criminal tribunals, the Special Court for Sierra Leone (SCSL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC), that not only provided significant historical evidence on the pervasiveness of the phenomenon in the contexts they considered, but they significantly contributed to the prosecution and to the characterization of forced marriage as a crime against humanity fitting in the sub-category of ‘other inhumane acts’.

Coherently with such conclusion, the ICC finds that Dominic Ongwen committed, as an individual, within the meaning of Article 25(3)(a) of the Rome Statute, the crime of forced marriage as an other inhumane act, pursuant to Article 7(1)(k) (Count 50). The Chamber takes however a further step forwards as regards the definition of the offence. According to the judges «The central element, and underlying act of forced marriage is the imposition of this status on the victim, i.e., the imposition, regardless of the will of the victim, of duties that are associated with marriage – including in terms of exclusivity of the (forced) conjugal union imposed on the victim – as well as the consequent social stigma. …Accordingly, the harm suffered from forced marriage can consist of being ostracised from the community, mental trauma, the serious attack on the victim’s dignity, and the deprivation of the victim’s fundamental rights to choose his or her spouse».

For the first time the ICC therefore expressly recognizes that imposing marriage against the will of the spouse constitutes per se a conduct amounting to an international crime, without the need to furtherly demonstrate that the offence reached a certain gravity threshold, as it was instead suggested by the Extraordinary Chambers in Case 002/02. In order words, the mere act of coercing a person, regardless of his or her will, into a conjugal union, according to the Chamber, is an inhumane act, which seriously undermine the right to freely decide whether, when and whom to marry and that, as such, causes serious psychological and physical harm to victims.

The Chamber moreover goes another step forward as regards the definition of the notion of coercion. While both the ECCC and the SCSL considered as forced marriage the situation where the victim is forced to marry another person through the threat or use of physical violence, according to the ICC, mental abuse, that may also consist of taking advantage of a coercive environment, equally amounts to a relevant form coercion.

In this regard the position of the Court is also consistent with the 2011 Istanbul Convention on violence against women; this is the first the first international legal instrument to set a binding obligation to criminalise forced marriage as an autonomous offence, which occurs when an individual, irrespective of their age, is compelled to enter marriage (Article 37). The same conduct, in the light of the conclusion achieved in the Ongwen case, may amount to a crime against humanity, provided that the contextual element of being committed as part of a widespread or systematic attack directed against any civilian population (Article 7 of the Rome Statute) is also satisfied.