Forced pregnancy

It took until February 2021 for the ICC’s Trial Chamber to secure its first conviction for forced pregnancy as a war crime (Article 8(2)(e)(vi) Rome Statute) and a crime against humanity (Article 7(1)(1) Rome Statute), i.e. in the case against Ugandan’s Lord’s Resistance Army (LRA) commander Dominic Ongwen. Ongwen was charged with the forced pregnancy of two women – one of whom he impregnated once in the years relevant to the charges, and one of whom experienced two pregnancies in this period. Both women had been abducted by the LRA and subjected to systematic sexual violence by Ongwen, resulting in these pregnancies. The ICC Trial Chamber held that the crime of “forced pregnancy” protects the distinct legal interest of a woman’s right to personal and reproductive autonomy.

Under Article 7(2)(f) of the Rome Statute, the crime of forced pregnancy requires material, mental and intent requirements that go beyond the act of forcible impregnation, i.e.: “‘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.” There is an additional caveat in the definition which states that “[t]his definition shall not in any way be interpreted as affecting national laws relating to pregnancy”.

As to the material elements, it found that Ongwen raped the two women in question, who then became pregnant, and were unlawfully confined due to them being placed under heavy guard and under warning that if they “tried to escape they would be killed.” With respect to the mental element, it found that due to the nature of Ongwen’s acts, as well as their sustained nature over a prolonged period, Ongwen meant to engage in the relevant conduct. He also had knowledge of the relevant circumstances (that the women in question were pregnant, and that they became so forcibly). As to specific intent, the Trial Chamber was satisfied that Ongwen confined the women with the intent of carrying out “other grave violations of international law” – namely, an intent to continue subjecting them to crimes under the Rome Statute including forced marriage, torture, rape and sexual slavery.

Significantly, the Trial Chamber found that the crime is “grounded in the women’s right to personal and reproductive autonomy and the right to family.” (para. 2717) The Chamber – correctly – did not analyse whether this interpretation of forced pregnancy, as defined in the Rome Statute, affected Uganda’s national laws relating to abortion.

On 15 December 2022, the Appeals Chamber upheld the Trial Chamber’s conviction of forced pregnancy as a war crime and a crime against humanity. The Appeals Chamber held that forced pregnancy is a form of reproductive violence and an attack on reproductive integrity. The Appeals 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.” The Appeals Chamber concluded 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.” (para. 1055)

Listen to Akila Radhakrishnan in the CRSV Observatory Podcast on how she, together with a team of lawyers, advocated for the correct legal application of forced pregnancy in the Ongwen case, for which they filed an amici brief to the ICC Ongwen Appeals Chamber:

Note of interest: On 15 May 2023, also at the national level, the first conviction of forced pregnancy as a crime against humanity was made in the Munyololo Mbao case, a former leader of a faction of the Raia Mutomboki armed group in the DRC.