This article situates this landmark case is its historical contex, and raises some broader concerns about the limited response to reproductive violence in the development and enforcement of international criminal law. Thousands of victims were sterilized and thereby suffered great mental and physical anguish.32, A more detailed picture of reproductive violence emerged in the RuSHA case, another cases prosecuted by the US under Control Council Law 10.37 This case focused on crimes committed by the Rasse-und Siedlungshauptamt (Race and Settlement Main Office, or RuSHA) and other agencies of the SS. Mapudungun I will also address the claim that the ICC Statute does not go far enough - that forced pregnancy is genocide. 74 of the Statute (Odio Benito Dissent), Lubanga (ICC-01/04-01/06-2842), Trial Chamber I, 14 March 2014. This pattern can be seen in the drafting history of the crime of genocide, as well as the crimes of forced sterilization, and forced pregnancy,15 as explained below. It allows us to appreciate how ground breaking this case is, while drawing attention to the gaps and silences around reproductive violence in international criminal law to date. 57 Womens Tribunal Oral Judgment, supra note 54, 37, 46; Womens Tribunal Written Judgment, supra note 54, 341. humanitarian law mentioned in the 1949 Geneva Conventions and their 1977 Additional Protocols, whether committed during international or non-international armed conflicts. Persian Copyright 2022 Center for the National Interest All Rights Reserved, , a former commander in the Ugandan rebel group the Lords Resistance Army (LRA), at the International Criminal Court (ICC) for an array of crimes against humanity has raised important questions about guilt and victimhood among former child soldiers. Serbian 102 Womens Caucus for Gender Justice, Womens Caucus advocacy in ICC negotiations: The crime of forced pregnancy (1998), available online at http://iccwomen.org/wigjdraft1/Archives/oldWCGJ/icc/iccpc/rome/forcedpreg.html (visited 12 June 2017). It's right there on the first page of the official UN page. Greek 15 See Boon, supra note 5, at 656; de Brouwer, supra note 1, at 143144; B. Bedont and K. Hall-Martinez, Ending Impunity for Gender Crimes Under the International Criminal Court, 6 Brown Journal of World Affairs (1999) 65, at 7374. Oct 19, 2022 list of options market makers moral character in ethics. 5 The term reproductive violence is not used in any instrument of ICL. See e.g. Ibid., at 398. 22 E. Ben-Sefer, Forced Sterilization and Abortion as Sexual Abuse, in S.M. 50 United States of America v. Ulrich Greifelt et al., in United States of America v. Ulrich Greifelt', supra note 37, at 609. > In Part II, I will address the different contexts in which forced pregnancy can potentially be prosecuted. With thanks to Matthew Cross for his thoughts on this point. . 93 Boon, supra note 5, at 658; B. Bedont, Gender-specific provisions in the Statute of the International Criminal Court, in F. Lattanzi and W. Schabas (eds), Essays on the Rome Statute: Vol. 69 Indictment, Gagovi (IT-96-23), Trial Chamber, 19 June 1996, 9.3, 9.13. However, it has not been a major theme in the jurisprudence of the Court. Romanian R. Cryer, H. Friman, D. Robinson and E. Wilmshurst, An Introduction to International Criminal Law and Procedure (3rd edn., Cambridge University Press, 2014); C. Stahn (ed. Croatian The high number of such unwanted babies has led to an explosion of infanticides and abandonment of babies in Darfur. 161 See Closing Order, Case 002 (002/19-09-2007-ECCC-OCIJ), Office of the Co-Investigating Judges, 15 September 2010, 217, 1445; Second Request for investigative actions concerning forced marriage and forced sexual relations, Case 002 (002/19-09-2007-ECCC/OCIJ), Office of the Co-Investigating Judges, 15 July 2009, 13; M. Lobato, Forced Pregnancy during the Khmer Rouge Regime (Cambodian Human Rights Action Coalition, 2016), at 1213. 26 Nuremberg Trial Proceedings, Vol. The author notes that prior to the Statute, rape and forced pregnancy were considered crimes that violated honour; post-Statute, these crimes are framed in light of the harm done to the victim's . 128 Transcript, Ongwen (ICC-02/04-01/15-T-21-Red2-ENG), Pre-Trial Chamber II, 22 January 2016, 50, lines 27. Polish II, at 163, 16. Thus, while international criminal law has not completely overlooked the issue of reproductive violence, it has not addressed most forms of reproductive violence that women and girls have faced in conflict situations, or recognized the way that this violence interferes with their individual human rights. 132 Transcript, Ongwen supra note 128, at 48, line 25 to 49, line 2; at 49, lines 1415; at 49, line 22 to 50, line 1. According to paragraph f of Article 7 (2) of the ICC statute forced pregnancy means "unlawful confinement of a woman forcibly made pregnant with the intent of affecting ethnic composition of any population or carrying out other grave violations of international law.". 72(f) ICCSt. 96 See H.M. Zawati, Fair Labelling and the Codification of Gender-Based Crimes in the Statutory Laws of the International Criminal Tribunals (Oxford University Press, 2014) 68. Tonny Raymond Kirabira, PhD Candidate in Law, University of Portsmouth and Lela Choukroune, Professor of International Law and Director of the University Research and Innovation Theme in Democratic Citizenship, University of Portsmouth. Telugu 19 The call to surface gender-based violence in international criminal law was first articulated by the late Rhonda Copelon in 1994, in the context of the Bosnian war. Hebrew Distinguishing between sexual violence and reproductive violence is therefore conceptually possible and practically useful, because it enables a more nuanced analysis of patterns of impunity for gender-based violence under international criminal law. For example, at the confirmation of charges hearing, it argued that the LRA abducted, raped and enslaved woman and girls who would give birth to future LRA fighters.137 Likewise, in its pre-trial brief, it argued that the LRA was implementing a policy of abducting young girls for sex and procreation.138 Such statements show that like sexual violence, reproductive violence can be used for strategic purposes that is, it may be used as a weapon of war. For example, the prosecution has argued that [t]he value protected by the criminalization of forced pregnancy is primarily reproductive autonomy,129 and has alleged that many of the women and girls abducted by the LRA, including those who were raped by Ongwen himself, became pregnant without any choice in the matter.130 Consistent with this approach, in its confirmation of charges decision, the Pre-Trial Chamber found 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.131 By foregrounding this notion of choice, the prosecution and Pre-Trial Chamber have drawn attention to the denial of the victims reproductive autonomy, a harm that has seldom been recognized in international criminal law. Rosemary Grey, The ICCs First Forced Pregnancy Case in Historical Perspective, Journal of International Criminal Justice, Volume 15, Issue 5, December 2017, Pages 905930, https://doi.org/10.1093/jicj/mqx051. . 149 For a discussion of this principle, see S. Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court (Cambridge University Press, 2014); M. Shahabuddeen, Does the Principle of Legality Stand in the Way of Progressive Development of Law? 2 Journal of International Criminal Justice (2004) 1007. The Rome Statute Explanatory Memorandum, which defines the jurisdiction of the International Criminal Court, recognises rape, sexual slavery, enforced prostitution, and forced pregnancy among others, as crime against humanity if part of a widespread or systematic practice. Forced pregnancy is a serious violation of sexual and reproductive rights and autonomy which can cause severe physical and psychological harms and often has lasting personal, social and economic consequences. However, other forms of reproductive violence may be impossible to prosecute under the existing legal framework, because they could not be attributed to the accused. 137 Transcript, Ongwen supra note 129, at 26, lines 2021. Challenging this pattern, and making use of the opportunities that the ICC Statute provides, the ICC Office of the Prosecutor has taken a step forward by prosecuting reproductive violence outside the context of genocide or ethnic cleansing in the Ongwen case. 108 D.M. For a similar view, see Boon, supra note 5, at 667. 110 Prosecutions final brief, Lubanga (ICC-01/04-01/06-2748-Red), Trial Chamber I, 1 July 2002, 205. '"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. These are not necessarily. Turkmen in particular, we will focus on the confirmation of the charges of the war crimes of committing violence to life and person; committing outrages upon personal dignity; intentionally directing attacks against the civilian population;pillaging; committing rape and forced pregnancy; conscripting or enlisting children under the age of fifteen years Lee (ed. The first ICC trial of a militia leader for SGBV crimes was that of Jean-Pierre Bemba Gombo, who was found guilty in 2016 of five counts of murder, rape and pillaging, amounting to war crimes and crimes against humanity. Not even state parties are expressly obliged to do so under the present. -4 Crime against humanity of forced pregnancy 9 7 (1) (g)-5 Crime against humanity of enforced sterilization 9 . There are particular challenges to prosecuting forced pregnancy as a crime against humanity and war crime. For example, there were multiple incidents of reproductive violence at the so-called comfort stations operated by the Japanese Imperial Army during the war. 17 H. Charlesworth, Feminist Methods in International Law, 93 American Journal of International Law (1999) 379, at 381383. rights, the International Criminal Court (ICC) has criminalized forced pregnancy. This choice reflects the authors interest in womens distinct experiences of violence and survival, and her agreement with the 1995 Beijing Declaration, which states that the right of all women to control all aspects of their health, in particular their own fertility, is basic to their empowerment.20 More specifically, the article concentrates on reproductive violence against women and girls in situations of armed conflict. The harms are often most acute for women and girls, who because of their childbearing capacity and their socially constructed gender roles, are exposed to forms of reproductive violence that men and boys are not (such as forced impregnation and forced abortion), and are at risk of secondary harms that men and boys are not (such a death or injury to due to childbirth and abortion). 64 Womens Tribunal Written Judgment, supra note 54, 4. The first of these crimes is forced pregnancy,86 which is defined to mean 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.87 The second is forced sterilization,88 which occurs where the perpetrator deprived one or more persons of biological reproductive capacity on a permanent basis, in circumstances which were neither justified by the medical or hospital treatment of the victim(s), nor carried out with their genuine consent.89 Notably, neither crime requires that the perpetrator acted with an intent to target a national, ethnic, racial or religious group.90 At face value, this would suggest that by the end of the twentieth century, support had waned for the idea that reproductive violence must be connected to group-based persecution in order to constitute a crime under international law. Although the concept of a forced pregnancy crime is relatively new, "forced impregnation" has been used throughout history as a tool of assimilation or subjugation of the enemy, minority, or slave populations." In particular, progress has been made in prosecuting sexual violence crimes which are committed primarily (although not exclusively) against women and girls. Home 150 Assuming that the chapeau elements are met. The Ongwen case, which commenced trial in the International Criminal Court in December 2016, is a step forward in this regard. Van Schaack, Obstacles on the Road to Gender Justice: The International Criminal Tribunal for Rwanda as Object Lesson, 17 Journal of Gender, Social Policy & the Law (2009) 362; B. Nowrojee, Shattered Lives: Sexual Violence During the Rwandan Genocide and Its Aftermath, Human Rights Watch and FIDH (1993), at 93; K. Glassborow, ICC Investigative Strategy Under Fire, Institute for War and Peace Reporting, 27 October 2008, available online at https://iwpr.net/global-voices/icc-investigative-strategy-under-fire (visited 15 February 2017); L. Chappell, The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy (Oxford University Press, 2016), at 110113; N. Hayes, Sisyphus Wept: Prosecuting Sexual Violence at the International Criminal Court, in W. Schabas, Y. McDermott and N. Hayes (eds), The Ashgate Research Companion to International Criminal Law (Ashgate, 2013) 7, at 816. 125 See Report of the Secretary-General pursuant to resolutions 1653 (2006) and 1663 (2006) (S/2006/478), UN Doc. 37 United States of America v. Ulrich Greifelt et al., in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law 10, Vol. Bengali Russian For Permissions, please email: journals.permissions@oup.com. Conversely, reproductive violence does not always involve an act of a sexual nature or impact on the victims sexual identity. 86 Arts 7(1)(g)-4, 8(2)(b)(xxii)-4, 8(2)(e)(vi)-4 ICCSt. The International Criminal Court (ICC), for example, defines forced pregnancy as 'the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population' (Rome Statute of the ICC, 2011). It would be some time before the ICC Prosecutor made use of the hard-won crime of forced pregnancy, and the crime of forced sterilization is yet to be charged in any case before the Court. 6, 28 January 1946, at 210211. Traditional Chinese 14 See Brammertz and Jarvis, supra note 1; N. Hayes, La lutte continue: Investigating and Prosecuting Sexual Violence at the ICC, in C. Stahn (ed. Koenig and K.D. ), Gendering the Nation State: Canadian and Comparative Perspectives (UBC Press, 2008) 139, at 154. This is not because wartime reproductive violence is necessarily more serious, or more appropriate for international condemnation, than similar conduct in everyday life. Sinhalese [They]want to finish us as a people, end our history.117. The article concludes by sketching out some steps to remedy these omissions, building on the progress made in the Ongwen case. ), The Law and Practice of the International Criminal Court (Oxford University Press, 2015) 801; V. Oosterveld, Evaluating the Special Court for Sierra Leones Gender Jurisprudence, in C.C. 134 Ongwen confirmation of charges decision, supra note 127, 100. 50 GC I; Art. Article 7 Crimes Against Humanity . Vietnamese No. See also Prosecutions Pre-Trial Brief (ICC 02/04-01/15-533), Ongwen, Trial Chamber IX, 6 September 2016 (Ongwen Pre-Trial Brief) 533, 541. 77 Transcript, Akayesu (ICTR-96-4-T), Trial Chamber I, 17 January 1997, at 68. 94 For example, the delegate for the Libyan Arab Jamahiriya argued that [e]nforced pregnancy was the result of rape and it was the act itself that should constitute a crime, and the delegate for Kuwait argued that the proposed reference to forced pregnancy should be reconsidered because rape was in any case criminalized and it might be considered that pregnancy was an aggravating circumstance of rape. Rome Conference Official Records, Vol. Nevertheless, it was not until the mass rapes in Bosnia and Rwanda caught the attention of feminist legal scholars that forced pregnancy began to capture the public consciousness. Arabic The document containing the charges alleged that many of the women victims of rapes and gang-rapes contracted HIV, and became pregnant as a result of these rapes.122 These acts of forcible impregnation, as distinct from the rapes that preceded them, were not captured in the charges.123 However, in the sentencing decision, the Trial Chamber regarded the unwanted pregnancies as an aggravating factor of rape.124 As the Courts first case to include a conviction for rape, this sentencing decision set an important precedent for future cases. The Statute of Rome defines SGBV as those crimes committed against persons -. Forced sterilization was also recognized in the Medical case, one of the cases prosecuted by the United States (US) under Control Council Law 10.31 Count Two of the indictment, which related to war crimes, alleged that: Sterilization experiments were conducted at the Auschwitz and Ravensbrck concentration camps, and other places. The Rome Statute, the treaty that established the ICC, defines forced pregnancy as the "unlawful confinement of a woman forcibly made pregnant with the intent of affecting the ethnic. The Geneva Conventions are rules that apply only in times of armed conflict and seek to protect people who are not or are no longer taking part in hostilities; these include the sick and. 98 Steains, supra note 92, at 366 (original emphasis). However, this proposal was rejected. Japanese According to the ICC, the Rome Statute is the first international treaty to establish conflict-related SGBV as crimes against humanity, war crimes and, in some instances, genocide. The inclusion of the crime was the result of controversial negotiations, and its definition is complex and restrictive. 21 War crimes require proof of the existence of an armed conflict. 18 As others have noted, reproductive violence and sexual violence often overlap (e.g. "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. Dutch From Capture to Courtroom: : Collaboration and the Digital Documentation of International Crimes in Ukraine. The Statute of Rome defines SGBV as those crimes committed against persons - whether male or female - because of their sex or socially constructed gender roles. 2(d). In 1998, the Rome Statute of the International Criminal Court (ICC Statute) became the first international instrument to expressly list forced pregnancy as a crime against humanity and a war crime. Accessibility Statement. There are particular challenges to prosecuting forced pregnancy as a crime against humanity and war crime. For forced pregnancy, there are two alternative special intents: either that the perpetrator intended to affect the ethnic composition of any population (which denotes something similar to ethnic cleansing) or to carry out other grave violations of international law.