Female Victims Only? Casting Doubt on the Prosecution of Forced Marriage in Ongwen’s Case

Author: Laura Nacyte*

In December 2016, the trial against Dominic Ongwen, a former commander of Uganda’s rebel Lord’s Resistance Army (LRA), commenced before the Trial Chamber IX of the International Criminal Court (ICC). Remarkably, the defendant is the first person at the ICC to face the charge of forced marriage. The latter was brought in addition to other charges of sexual and gender-based crimes, including rape, sexual slavery, enslavement, and forced pregnancy. Although not a separate offence under the Rome Statute, forced marriage is prosecuted as an ‘other inhumane act’, a crime against humanity, pursuant to Article 7(1)(k).

The Pre-Trial Chamber II confirmed the charge in March 2016. It observed that “forced marriage as another inhumane act differs from the other crimes with which Dominic Ongwen is charged and notably from the crime of sexual slavery in terms of conduct, ensuing harm, and protected interests” [para. 92]. The central element of the conduct was considered to be the “imposition, regardless of the will of the victim, of duties that are associated with marriage, as well as of a social status of the perpetrator’s ‘wife’” [93].

The bench drew upon the jurisprudence of the Special Court for Sierra Leone (SCSL), which pioneered the recognition of forced marriage. In the Brima et al. case, the SCSL Appeals Chamber found in 2008 that forced marriage may constitute an ‘other inhumane act’ as a crime against humanity, under Article 2(i) of the SCSL Statute. The conclusion was based on the evidence of the systematic abduction of females by militants during the civil war, their coercion into an exclusive conjugal association, and forcible performance of relevant duties, including sexual intercourse and household chores [190-191]. By establishing a new criminal offence, however, the SCSL Appeals Chamber reversed the 2007 decision of the Trial Chamber, which interpreted forced marriage as a subset of the crime of sexual slavery [703-714].

Forced marriage remains a contentious subject in international criminal law. The ICC itself attributed the act to sexual slavery in the Katanga case (see, for instance, the 2008 confirmation decision, para. 431). The interpretative inconsistency is likely to sustain the Ongwen Defence’s position that forced marriage is subsumed by sexual slavery (see, for instance, the Defence request for leave to appeal the confirmation decision, paras. 40-44). Reflecting on the case at hand, this post suggests that the distinctiveness of forced marriage might be partially obscured due to the omission of male victims. Their acknowledgment would enable to define a crime more accurately, which against the background of stark gender asymmetries has been misconceived as sexual slavery.

Exclusion of Male Victims

The Prosecution in its pre-trial brief concerning Ongwen’s case asserted the “exclusivity of this forced conjugal union pertained only to the ‘wife’; the ‘husband’ could have many wives” [508]. Alas, the implication that men were in effect exempted from forced marriage because of their entitlement to multiple wives is distorting. It overlooks a political purpose of the practice, which to a certain degree warranted the exploitation of men.

Erin Baines, who conducted fieldwork in Uganda, contends that forced marriage in the LRA was used to produce a spiritually pure Acholi nation—and this aspiration affected both women and men. Both genders were subjected to a rigorous control of relationships by a central LRA command, which denied their personal autonomy and a related right to select a spouse. The violations can be supportably inferred from the Pre-Trial’s II decision on the confirmation of charges, which states that “Dominic Ongwen . . . regulated the distribution of victims [women and girls] to LRA fighters’’ [138; emphasis added]. Albeit here stress is laid on female survivors, it is safe to argue that interventions into relationships by a third party—most broadly, the LRA—also had a negative impact upon men.

The LRA rules to men continued to apply once marriage was imposed. Some were coerced to engage in sexual acts. As the Feinstein International Center reported, “if LRA ‘husbands’ showed reluctance to have sex with their forced wives they would be punished by their commanders”. Adultery was strictly prohibited. Thus men who may have pursued desired women outside the imposed union risked to be beaten, imprisoned or even killed.

The phenomenon of forced marriage among men is under-investigated. The presumption that it is unique to females guides the prosecution of forced marriage, and in effect silences male victims. It is therefore difficult to assess the scope of the problem within the LRA. It could be ascertained that women were disproportionately affected owing to the entrenched gender inequality in Uganda, and their reproductive functions that were essential to create a ‘new Acholi’. Even so, some men were also used as passive instruments of the LRA  nation-building project.

Potential Conflation of Forced Marriage with Sexual Slavery

Although the Pre-Trial Chamber II in the Ongwen case attempted to differentiate forced marriage from sexual slavery (notably highlighting the right to “consensually marry and establish a family” [94], which was not addressed by the SCSL), the neglect of male victims may have complicated the task.

Many acts referred to forced marriage in the confirmation decision could be attributed to sexual slavery, defined in the ICC Elements of Crimes as the exercise of powers attaching to the right of ownership; and causing a victim to engage in sexual acts. All witnesses testifying against Dominic Ongwen emphasised routine sexual intercourse. For example, Witness P-101 told that the defendant “forced her to become his so-called ‘wife’ and continued to have sex with her by force repeatedly until her escape . . . As a result of rapes . . . P-101 became pregnant three times” [111; emphasis added]. Witness P-214 “regularly had sex with him [Dominic Ongwen] without having a choice and was forced to perform domestic duties” [114; emphasis added]. The accentuation of rape is understandable due its harmfulness; nevertheless, forced marriage may inadvertently be presented as a predominantly sexual crime. Other elements of the crime, including the deprivation of liberty, forced labour, and enforced pregnancy, could be subsequently re-categorised as constituent of sexual slavery.

The incorporation of male victims would have assisted in eliciting a non-sexual nature of forced marriage. Crucially, it would have demonstrated the absence of an ownership interest of the LRA superiors over ‘bush husbands’. Yet simultaneously, the latter’s experiences would have revealed the distinctiveness of forced marriage—the imposition of a conjugal status against the will of one or both parties, resulting in great suffering; and disciplinary repercussions for its breach.

It could only be hoped that the Trial Chamber will treat forced marriage as a separate crime against humanity. (It is not, however, bound by the Pre-Trial Chamber’s interpretation.) Even so, a lack of gender neutrality as to its prosecution might prove to be ineffective. It could at worst be detrimental to both men and women.

MSc graduate of Global Security from the University of Glasgow where she wrote the dissertation “The Copenhagen School Meets International Law: Has the International Criminal Court Impeded the Securitisation of Sexual and Gender-Based Violence?”. Laura is currently based at the Rape Crisis Centre Glasgow.