Can International Law Protect Reproductive Rights in Conflict? – Cambridge International Law Journal

The First Prosecution of a Reproductive Crime

In February 2021, the Worldwide Felony Court docket (ICC) convicted Dominic Ongwen on sixty-two counts of crimes towards humanity and conflict crimes dedicated in Northern Uganda between July 1, 2002, and December 31, 2005, in his position as Lord’s Resistance Military commander. The Ongwen conviction set a authorized precedent for prosecuting reproductive violence: it’s the first time that compelled being pregnant has been charged as a global crime, establishing a prison jurisprudence for reproductive violence to be charged as each against the law towards humanity and a conflict crime. This profitable prosecution established that compelled being pregnant entails prison legal responsibility on account of its violation of reproductive autonomy, notably by deciphering the Rome Statute’s provisions in keeping with worldwide human rights legislation. The primary “express prosecution and conviction of a reproductive crime within the latest historical past of worldwide prison legislation” marks a essential victory for worldwide transitional justice.

Defining Reproductive Violence as a Distinctive Type of Gender-Based mostly Violence

The Rome Statute establishes that sexual violence constituting a critical violation of widespread article 3 of the Geneva Conventions is a conflict crime, alongside rape, sexual slavery, enforced prostitution and compelled being pregnant (article 8(2)(b)(xxii) and (e)(vi)). These are additionally crimes towards humanity (article 7(1)(g)). The one sexual crime particularly outlined in these provisions is compelled being pregnant (article 7(2)(f)). Critically for our functions, the Rome Statute has categorised the one two reproductive crimes included throughout the primarily be categorised as acts of sexual violence, furthering a information hole of reproductive violence inside worldwide legislation.

There isn’t a formal definition of reproductive violence in worldwide legislation. Authorized scholarship helps to fill this hole and understands reproductive violence to be a singular subset of gender-based violence. Rosemary Gray defines reproductive violence as “violence which entails a violation of reproductive autonomy or which is directed at folks due to their reproductive capability”.

The Ongwen conviction for compelled being pregnant establishes a distinction between the ‘sexual’ and the ‘reproductive’ by figuring out private reproductive autonomy as the worth that’s offended by reproductive violence. Whereas reproductive violence generally overlaps with sexual violence, its distinctive harms benefit distinct authorized recognition to enhance accountability.

The observe of subsuming reproductive crimes throughout the broader class of sexual violence has obscured well-documented commissions of reproductive violence all through the historical past of armed battle, evidenced by accountability gaps. This prevents the discrete accountability of such crimes as a result of it creates opposed information gaps within the constructions that underpin the violence. Because the Ongwen Trial Chamber famous, “the right characterisation of the evil dedicated, that’s to say, calling the crime by its true title, is a part of the justice sought by the victims.”

As identified by Gray, the Amici Curiae in Ongwen, the judgment grounded the act of compelled being pregnant inside worldwide human rights ideas, specifically the “girls’s proper to private and reproductive autonomy and the proper to household.” This establishes an interaction between worldwide human rights legislation (IHRL) and worldwide humanitarian legislation (IHL), a paradigm shift that will additional transitional justice for survivors of reproductive violence.

Historic Context: Unprosecuted Reproductive Violence in Wartime

Earlier than Ongwen, reproductive violence was primarily addressed underneath article 2(d) of the Genocide Conference, which defines “imposing measures supposed to stop births” as genocide. Gray has famous that these measures weren’t thought-about “grave breaches” underneath the 1949 Geneva Conventions, reflecting a bent to acknowledge reproductive violence solely when tied to genocidal or ethnic cleaning motives.

This slim focus left vital impunity gaps, as evidenced by the shortage of accountability for crimes like compelled being pregnant or sterilisation in landmark instances, such because the Tokyo Tribunal’s failure to prosecute reproductive violence dedicated in Japanese-operated “consolation stations” from 1932 to 1945. Regardless of detailed proof of compelled pregnancies, compelled impregnation, and compelled abortions, these crimes have been by no means charged, a miscarriage of justice that highlights the worldwide neighborhood’s neglect of ladies’s distinctive experiences of violence. The omission underscores the enduring failure to recognise reproductive violence as a violation of ladies’s autonomy and dignity in its personal proper. As a substitute, worldwide prison legislation (ICL) has but to deal with the broader spectrum of reproductive violence and its profound interference with particular person human rights except tied to harming a gaggle’s identification.

Human Rights Regulation and Compelled Being pregnant

A complete interpretation of the Rome Statute requires anchoring its provisions firmly in IHRL, notably when addressing reproductive violence. Pursuant to article 21(3), the Rome Statute should be interpreted in keeping with “internationally recognised human rights,” reflecting the precept that “human rights underpin the Statute at each degree.” This requirement, strengthened by the Conference on the Elimination of All Types of Discrimination Towards Ladies (CEDAW) Committee’s Common Suggestion No. 35 ensures that the ICC’s method to gender-based violence stays in line with elementary human rights ideas, thereby stopping authorized lacuna within the prosecution of reproductive crimes.

Such a human rights–based mostly lens is essential as a result of, as outlined above, the Rome Statute doesn’t explicitly point out the time period “reproductive”, leaving essential gaps for reproductive crimes past compelled being pregnant. By grounding the Rome Statute in IHRL, article 21(3) locates the crime of compelled being pregnant inside the proper to reproductive autonomy, a proper additionally articulated within the Beijing Declaration. This method gained traction within the Ongwen Amici Curiae Observations, which famous that violations of sexual and reproductive well being rights could represent “different grave violations of worldwide legislation” underneath article 7(2)(f). By this expanded view, the Rome Statute can embody broader protections present in exterior human rights treaties, such because the 2003 Maputo Protocol, which explicitly protects reproductive autonomy and prohibits dangerous practices. Thereby, the Rome Statute develops to reply to evolving battle dynamics that give rise to new types of reproductive violence.

Moreover, recognising reproductive autonomy as a core human proper implies that states have an obligation to safeguard these rights throughout each peacetime and battle. In a 2020 report, the UN Particular Rapporteur on the promotion of reality, justice, reparations, and ensures of non-recurrence underscored the need of prosecuting types of reproductive violence not explicitly named within the Rome Statute, similar to compelled abortion or enforced lack of reproductive capability. By making use of the precept of “truthful labelling”, worldwide prison legislation can classify and penalise such crimes extra precisely, thereby closing accountability gaps which have lengthy allowed reproductive violence to go unchecked.

Crucially, the ICC’s choice in Ongwen exemplifies this paradigm shift: by charging compelled being pregnant as a definite crime, the Court docket acknowledged the significance of reproductive autonomy as a price offended by reproductive violence. This method clarifies that whereas reproductive violence can overlap with sexual violence, it has distinctive harms that deserve separate authorized recognition. As worldwide prison legislation continues to combine IHL and IHRL norms, the Ongwen precedent paves the best way for extra strong frameworks that uphold reproductive dignity and guarantee accountability for gender-based crimes in future conflicts.

Worldwide Humanitarian Regulation and Compelled Being pregnant

Though the Geneva Conventions don’t explicitly seek advice from “compelled being pregnant,” the Worldwide Committee of the Purple Cross (ICRC) has acknowledged, in its 2016 Commentary on the Geneva Conventions, that compelled being pregnant and enforced sterilisation qualify as types of sexual violence. Underneath widespread article 3, such acts could also be thought-about prohibited. The ICRC Commentary defines “compelled being pregnant” as a type of confinement the place a person is compelled to proceed an undesirable being pregnant. This idea displays the IHL prohibition of arbitrary detention and illegal deprivation of liberty, which extends to denying an individual entry to secure abortion.

The Ongwen Pre-Trial Chamber on the ICC recognized the related conduct for the crime of compelled being pregnant as an “act of confinement” that forces somebody to proceed with a being pregnant towards their will. The ICC Prosecutor argued that the extra “particular intent” behind such illegal confinement is both to have an effect on the ethnic composition of a inhabitants or to hold out different grave violations of worldwide legislation. As soon as compelled being pregnant is recognised as a grave violation, it triggers critical authorized penalties: underneath worldwide legislation, states could have obligations to analyze and prosecute these acts (or extradite suspects) as a result of grave violations can fall underneath common jurisdiction. People discovered accountable could also be prosecuted for conflict crimes or crimes towards humanity, underscoring that these should not remoted private accidents however critical breaches of the worldwide authorized order.

IHL additionally obliges events to a battle to supply non-discriminatory medical care to the wounded and sick, which when held in line with trendy human rights treaties additionally encompasses important reproductive well being providers. Over time, this safety has advanced to verify that wounded or sick individuals should be cared for “to the fullest extent practicable,” and this consists of entry to secure abortion the place medically indicated. Denying abortion providers particularly targets a healthcare want distinctive to 1 organic intercourse; as such, it constitutes prohibited discrimination underneath IHL. In different phrases, worldwide humanitarian legislation not solely forbids compelled being pregnant as an act of confinement but in addition requires that these affected obtain applicable reproductive healthcare.

Taken collectively, these developments spotlight that compelled being pregnant is a prosecutable type of sexual violence and a critical breach of IHL. By classifying it as a grave violation, the legislation emphasises the responsibility of states to stop such abuses and maintain perpetrators accountable, reinforcing the basic precept of non-discrimination in armed battle and the safety of reproductive rights.

Cross-Jurisdictional Affect and Evolving Authorized Requirements

Defending girls in conflict, although a secondary objective within the Geneva Conventions, has gained prominence lately as worldwide entities more and more deal with sexual violence as central to armed battle relatively than collateral. This view is strengthened by the “cross-fertilisation” of worldwide prison legislation, IHRL and IHL, the place worldwide courts cite one another to deepen the authorized understanding of sexual violence. For instance, within the Delalić case, the ICTY cited rulings of the European Court docket of Human Rights (ECtHR) and the Inter-American Fee on Human Rights (IACtHR) to conclude that rape can quantity to torture; equally, in Pérez v Mexico, the IACtHR drew upon ICTY and ECtHR precedents to bolster the classification of sexual assault as torture. The ECtHR, in MC v Bulgaria, expanded the definition of rape past the requirement of bodily drive by referencing the ICTY’s findings on non-consensual sexual acts. Collectively, these instances illustrate the rising alignment of authorized requirements. By extending recognition that compelled being pregnant and different types of sexual violence can represent torture, this cross-fertilisation underscores broader sexual and reproductive rights protections in armed battle. This cross-jurisdictional collaboration deepens the authorized understanding of sexual and reproductive rights inside IHL, strengthening protections and enforcement in reproductive violence instances. These courts’ mixed efforts additional validate the popularity of compelled being pregnant and related violations as grave crimes, reinforcing a cohesive authorized customary throughout jurisdictions.

Conclusion

The trial of Dominic Ongwen on the ICC exemplifies how IHL and IHRL collectively reinforce the safety of reproductive well being. By prosecuting compelled being pregnant and different gender-based crimes in battle, the case provides a type of transitional justice that explicitly addresses sexual and reproductive rights. It’s clear that compelled being pregnant constitutes a grave violation underneath IHL. Worldwide legislation can shield reproductive rights by the cross-fertilisation of IHL, human rights legislation, and worldwide prison legislation. This method is crucial to investigating, prosecuting, and stopping the violation of reproductive rights in armed battle.

Notably, the grave breaches regime related to the Geneva Conventions confers common jurisdiction upon states, enabling them to prosecute or extradite these accused of great violations—similar to compelled being pregnant—no matter the place the crime occurred. This precept helps the objective of dissuasive sanctions outlined within the ICRC’s 2016 Commentary by mandating that states take penal measures towards gender-based violence in battle. Strengthening protections for girls by this authorized framework ensures that reproductive violence is just not dismissed as a mere side-effect of conflict however is handled as an integral side of justice in post-conflict restoration.

Winona Xu is a Analysis Fellow on the College of California, Los Angeles (UCLA), the place she is accountable for creating and instructing the primary undergraduate worldwide human rights and reproductive well being curriculum at UCLA.