Bonita Meyersfeld Discusses Prosecuting “Invisible” Crimes of Sexual Violence in International Court

On Sept. 7, the Orville H. Schell Jr. Center for International Human Rights welcomed human rights lawyer and academic Bonita Meyersfeld LLM ’03 JSD ’06 for a talk on her role in a landmark case for the prosecution of sexual and gender-based crimes. Meyersfeld, an Associate Professor of Law at Wits University and an Advocate of the High Court of South Africa, gave a presentation titled “Prosecuting Invisible Crimes at the International Criminal Court: The Prosecutor v. Ongwen.”

Meyersfeld’s talk examined the case of Dominic Ongwen, a Brigade Commander in Uganda’s Lord’s Resistance Army who was convicted by the International Criminal Court (ICC) of war crimes and crimes against humanity. In a first for the court, the 2015 conviction included the crimes of forced marriage and forced pregnancy as distinct underlying acts of crimes against humanity. In 2022, the Appeals Chamber upheld the conviction.

The case is one that Meyersfeld knows firsthand. At the court’s invitation, she filed a joint amicus submission with the South Africa Litigation Centre to address legal questions about sexual and gender-based crimes in the case. Her challenge was to prove that forced marriage, sexual slavery, and forced pregnancy are distinct offenses. In her talk, Meyerfeld argued that international courts should recognize these acts as distinct crimes. Moreover, she called upon the courts to consider evidence in such cases holistically, adapting their standards to accommodate the distinct nature of sexual and gender-based crimes.

Meyersfeld emphasized the need to take a more nuanced approach to the principles of evidence in cases of sexual and gender-based crimes. Such crimes often take place in private, where there is little evidence other than the testimony of the victims. Moreover, victims’ testimony must often be given in courts dominated by men. Witnesses were integral to illustrating the devastating impact of these offenses, Meyersfeld concluded. She then discussed how witness testimony in these cases differs from testimony in other crimes.

Although there was evidence that Ongwen had violated hundreds of women’s human rights, only seven witnesses ultimately testified in court, Meyersfeld noted. She explained that witnesses in international criminal courts can be categorized as “direct” (those who testify themselves) or “indirect” (witnesses who did not experience the harms being litigated themselves but still have important insights for courts to consider). Direct witnesses are critical, Meyersfeld noted. However, she explained, many survivors struggle to testify in open court about such harrowing personal violations, especially when they must do so in front of the perpetrators. Meyersfeld described how survivors who are nervous and traumatized often recall specific details erratically or give testimony that may not contain all the facts of the crime and thus appear less credible to judges.

Meyersfeld called for international courts to change how they consider witness testimony for sexual and gender-based crimes. She argued that gender-based violence has a “neurological aspect” that is absent in other crimes. Direct witnesses may have gaps in their testimony when their memories are suppressed due to trauma, Meyersfeld noted. As a result, these witnesses may not show the “confidence, specificity, and fortitude in cross-examination” expected of witnesses in a court of law, she explained. In Prosecution v. Ongwen, Meyersfeld argued that the court should also consider the insights of indirect witnesses, who experienced similar crimes at the hands of other LRA members or crimes in places or times outside of the scope of the charges before the court.

Beyond legal obstacles, Meyersfeld emphasized that asking survivors of gender-based crimes to testify can pose threats to their mental and emotional health. These risks are especially prevalent when survivors must disclose private information before their abusers, she said.

At the close of her talk, Meyersfeld called for a change in international courts’ jurisprudence around gender-based international crimes. Meyersfeld urged courts to recognize that women face harm in myriad ways in peacetime and in war. to expand their understanding of evidence in gender-based crimes. Prosecution v. Ongwen not only reflects the layers of coercion, sexual violence, and reproductive rights violations that characterize such crimes, Meyersfeld concluded, but exemplifies the need to transform how the international system handles all gender-based human rights abuses and the evidence needed to prove them.