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ICC trial against Dominic Ongwen commences – some thoughts on narratives

The trial against Dominic Ongwen, a former commander of the Sinia brigade in the Lord’s Resistance Army (LRA), started at the International Criminal Court (ICC) this week. On 6 and 7 December, Trial Chamber IX heard opening statements from the Prosecution and two teams of Legal Representatives of Victims. The Defence had requested to defer its opening statements to the beginning of the presentation of its evidence. The trial is an important one for many reasons, not least because of the difficult issue of Ongwen being a ‘victim-turned-perpetrator’ (see this post by IntLawGrrl Diane Amann). Rather than providing a detailed overview of the submissions, I want to focus on a specific issue that struck me listening to the Prosecution’s opening statements: (gendered) narratives and discourse.

As Michelle Jarvis writes in the introduction to the book Prosecuting Conflict-Related Sexual Violence at the ICTY, and as IntLawGrrl Daniela Kravetz wrote, there has been a tendency in international criminal law to focus -almost exclusively- on the sexual component of SGBV crimes when committed against female victims. This renders the violence aspect of such crimes almost invisible. On the contrary, where it concerns sexual violence against male victims, the focus has predominantly been on the violence component, as opposed to the sexual component, with such harm often characterised only as torture, or cruel treatment. These gendered dynamics have been pervasive; hence the significance of the ICC’s conviction in the Bemba case classifying rape of male victims as rape.

The Ongwen case marks another breaking point – the Prosecution has classified acts of sexual violence against women and girls not just as sexual violence (rape and sexual slavery), but as torture and outrages upon personal dignity. It has also included charges of forced pregnancy and forced marriage, two predominantly gendered (rather than sexual) crimes (see the Prosecution’s pre-trial brief for its pleadings in this respect). The Prosecution described the LRA’s systematic, institutionalised practice to abduct young women with the express aim of forcing them into an exclusive forced conjugal relationship (“forced marriage”) with LRA commanders. They were raped, forced to carry out domestic duties such as cooking or cleaning, were beaten for refusing to do so, and some bore children as a result of their repeated rapes. This policy was “vigorously enforced” within the LRA and constituted one of its “defining features”. Ongwen himself had many forced wives, some of whom were as young as 10 years old.

The Prosecution summarised in detail the testimony already given by seven of Ongwen’s forced wives to the Pre-Trial Chamber, and referred to broader contextual evidence from other witnesses who have yet to testify. Importantly, the Prosecution underscored that in using the terms (forced) “marriage” and (forced) “wife”, it did not seek to legitimise what occurred. The Prosecution stressed that, while a victim’s lack of consent “may have been obvious at first”, when they were subsequently “bludgeoned into silent submission” this did not mean the acts became consensual.

While it was thus clear the Prosecution was very aware of nuances in language, there was nonetheless a notable change in terminology in its submissions. When describing what happened to the forced wives, Senior Trial Lawyer Ben Gumpert explained that, after a girl was assigned to Ongwen or one of his subordinates, she would be summoned to their bedroom, where she was “raped”. Yet, when describing the subsequent continued rapes perpetrated upon these forced wives by their “husband”, he often labelled these acts not as rape, but as “(forced) sexual intercourse” or simply “sex”. For instance, in relation to witness P-0396 (who was distributed to one of Ongwen’s subordinates): “He raped her that first night, and had sex with her many times afterwards forcibly.” Or in relation to witness P-0235 (one of Ongwen’s forced wives): “He raped her three times. […] He later called her again to have sex.” Or in relation to witness P-0226 (another of Ongwen’s forced wives): “Each time he had sex with her after this first rape it was forced.” Prosecutor Bensouda equally spoke about the LRA’s general “policy of abducting young girls for sex”. While the emphasis on the continued forced nature of these subsequent acts of sexual violence is of course important, the subtle change in language from “rape” to “(forced) sex” matters. It produces a suggestion that the character of the crime is somehow different when the “forced marriage” has been established.

Similarly, at times, the Prosecution’s submissions also reproduced the tendency to focus specifically on sexual components of SGBV crimes against women in the broader language used to describe these harms. For instance, rather than using the term ‘sexual violence crimes’, Prosecutor Bensouda stated that Ongwen “presided over [the commission of] sex crimes on young girls in the units he commanded”. Another problematic trend was the continued emphasis on the fact that for many of the forced wives their rapes were their first “sexual experiences”, or that they “had not slept with a man before”. While this may have been done to underline the extreme young age of some of the victims or perhaps the cruelty of the crimes, it silences the violence components of the crimes, and suggests this somehow made the sexual violence worse than if it were committed against women who had had sex before.

While it was clear the Prosecution was aware of (at least some of) the subtleties of meaning, more attention could have been paid to the narratives produced through language. The differences may be subtle, but they matter. Beyond the courtroom, how the ICC talks about SGBV and the language it uses can have repercussions at a national level. National judges less familiar with Rome Statute crimes may look to the ICC for guidance when adjudicating cases in domestic courts. For instance, in the Democratic Republic of the Congo, military court judges have directly applied the Rome Statute in national trials of sexual violence as war crimes and crimes against humanity. As the only permanent international criminal court, the ICC’s decisions, the narratives created, and the language used carry weight. The Court needs to be aware of this, and within its mandate, take active steps to prevent the (unintended) reproduction of problematic gendered assumptions.

That said, the broad nature of the SGBV charges brought by the Prosecution should be welcomed, and the trial will undoubtedly contribute to further development of gendered understandings within ICL. The trial will continue with the presentation of evidence by the Prosecution on 16 January 2017.

(A shorter version of this post appeared on IntLawGrrls)

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