Table of contents:
Element:
ICC
As noted by ICC Pre-Trial Chamber in The Prosecutor v. Dominic Ongwen:
"88. The Statute does not explicitly include "forced marriage" as a crime within the jurisdiction of the Court. The question before the Chamber is therefore whether the conduct attributed to Dominic Ongwen (i.e. to have forced women to serve as "conjugal partners" to himself and other LRA fighters in the Sinia brigade) constitutes an other inhumane act of a character similar to the acts set out in article 7(1)(a) to (j) intentionally causing great suffering, or serious injury to body or to mental or physical health. This is largely a question of fact, but the application of the gravity threshold of article 7(1)(k) of the Statute is also a question of law, as is the question of whether the conduct described as "forced marriage" is not otherwise subsumed by the crime of sexual slavery as argued by the Defence.
89. The Chamber notes that the Special Court for Sierra Leone (SCSL) has had occasion to deal with very similar factual allegations to those brought by the Prosecutor in the present case, and with an identical legal question. The Appeals Chamber of the SCSL held that forced marriage constitutes an "other inhumane act" as a crime against humanity when:
[The] accused, by force, threat of force, or coercion, or by taking advantage of coercive circumstances, causes one or more persons to serve as a conjugal partner, and the perpetrators acts are knowingly part of a widespread or systematic attack against a civilian population and amount to the infliction of great suffering, or serious injury to body or to mental or physical health sufficiently similar in gravity to the enumerated crimes against humanity.
90. The Extraordinary Chambers in the Courts of Cambodia equally recognised the commission of other inhumane acts as a crime against humanity through forced marriage, by which victims "are forced to enter into conjugal relationships in coercive circumstances" and endure "serious physical or mental suffering or injury or a serious attack on human dignity of a degree of gravity comparable to that of other crimes against humanity".
91. The Chamber agrees that forcing another person to serve as a conjugal partner may, per se, amount to an act of a similar character to those explicitly enumerated by article 7(1) of the Statute and may intentionally cause great suffering, and that forced marriage may, in the abstract, qualify as "other inhumane acts" under article 7 of the Statute rather than being subsumed by the crime of sexual slavery.
92. Indeed, the Chamber considers that forced marriage as an other 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. It may be stated that forced marriage will generally be committed in circumstances in which the victim is also sexually or otherwise enslaved by the perpetrator. Moreover, restrictions on the freedom of movement, repeated sexual abuse, forced pregnancy, or forced labour, in particular the forced performance of domestic duties, are all factors which indicate a situation of "forced marriage". In the view of the Chamber, however, such facts, in addition to indeed being incriminated under other provisions of article 7(1) of the Statute, are not in themselves sufficient to establish forced marriage.
93. According to the Chamber, the central element of forced marriage is the imposition of "marriage" on the victim, i.e. 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 perpetrators "wife". The fact that such "marriage" is illegal and not recognised by, in this case, Uganda, is irrelevant. What matters is that the so-called "marriage" is factually imposed on the victim, with the consequent social stigma. The element of exclusivity of this forced conjugal union imposed on the victim is the characteristic aspect of forced marriage and is an element which is absent from any other crime with which Dominic Ongwen is charged. As held by the SCSL, unlike sexual slavery, forced marriage implies a relationship of exclusivity between the "husband" and "wife", which could lead to disciplinary consequences for breach of this exclusive arrangement and, therefore, is "not predominantly a sexual crime".
94. Also, the Chamber recognises, as submitted by the Prosecutor (Prosecutors Brief, para. 437; Transcript T-20, p. 32), that the victims of forced marriage suffer separate and additional harm to those of the crime of sexual slavery, or other crimes under the Statute. Indeed, forced marriage as defined above violates the independently recognised basic right to consensually marry and establish a family. This basic right is indeed the value (distinct from e.g. physical or sexual integrity, or personal liberty) that demands protection through the appropriate interpretation of article 7(1)(k) of the Statute.
95. In conclusion, the conduct under consideration, insofar as sufficiently demonstrated by the available evidence, constitutes the crime of an other inhumane act within the meaning of article 7(1)(k) of the Statute in the form of forced marriage, which differs from the other crimes with which Dominic Ongwen is charged, and accordingly warrants a specific separate charge, as presented by the Prosecutor." [1]
The Muthaura, Kenyatta and Ali Pre-Trial Chamber noted:
"The Chamber understands that other inhumane acts is a residual category within the system of article 7(1) of the Statute. Therefore, if a conduct could be charged as another specific crime under this provision, its charging as other inhumane acts is impermissible. Secondly, the Chamber opines that the language of the relevant statutory provision and the Elements of Crimes, as well as the fundamental principles of criminal law, make it plain that this residual category of crimes against humanity must be interpreted conservatively and must not be used to expand uncritically the scope of crimes against humanity."[2]
6.1. The nature similar to any other act in Article 7(1)
