What is it about?
The Ongwen case, concluded in December 2022 at the International Criminal Court (ICC), convicted Mr. Ongwen of a gender-based act that had never been litigated by the ICC: forced marriage. This article argues that the judge's consideration of forced marriage in Ongwen has settled international criminal law in three important ways. First, it clarified the classification of forced marriage as an ‘other inhumane act’. Second, it recognised and solidified the conduct and harms captured by the term ‘forced marriage’, distinguishing it from other crimes against humanity. Finally, it confirmed that prosecution of forced marriage does not contravene the principle of legality, under which an act must have already been recognized as a crime at the time it was committed. These outcomes will play a key role in future prosecutions of forced marriage in international criminal law. This article suggests that the logical next step is to explicitly list forced marriage as a crime against humanity in the ICC's Rome Statute and the draft Crimes Against Humanity Convention.
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Why is it important?
We explain how the first ever prosecution and conviction of forced marriage in the International Criminal Court took place in the Ongwen case. This groundbreaking case showed that it was possible to address conflict-related forced marriage through a specific crime against humanity, 'other inhumane acts'.
Perspectives
This article was co-written by three scholars who had contributed in 2021 to an amicus curiae ('friend of the court') brief to the ICC on forced marriage. It was a pleasure working alongside Professors O'Brien and Maloney again on the same topic.
Valerie Oosterveld
Western University
The International Criminal Court has now joined the Special Court of Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia in holding perpetrators criminally accountable for forcing girls and women in conflict settings into marriages constituting manifold crimes against humanity. The countless ongoing and intergenerational harms of forced marriage call for its explicit inclusion in the draft Crimes Against Humanity treaty and the Rome Statute. Collaborating with Professors O'Brien and Oosterveld on this article and scholarly efforts to end impunity for these gender-based crimes has been very rewarding.
KATHLEEN M. MALONEY
Lewis and Clark Law School
The recognition of forced marriage as a crime in international criminal law has been a complicated road, because it does not exist in any of the international court or tribunal statutes. The jurisprudence is therefore vital to this development. Our article examines one aspect of this development, analysing the categorisation of 'forced marriage' as the crime against humanity of 'other inhumane act', and why this is appropriate. However, we also advocate for the inclusion of 'forced marriage' as a crime in the Rome Statute and the draft Crimes against Humanity Treaty. It has been a fulfilling experience to work with Professors Maloney and Oosterveld on the issue of forced marriage, and we hope that our analysis will contribute to meaningful change in the international criminal justice system.
Dr Melanie O'Brien
University of Minnesota Twin Cities
Read the Original
This page is a summary of: Forced Marriage as the Crime Against Humanity of ‘Other Inhumane Acts’ in the International Criminal Court’s Ongwen Case, International Criminal Law Review, August 2023, Brill,
DOI: 10.1163/15718123-bja10157.
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