62 Copelon, supra note 3, at 221-223; Dolgopol and Paranjape, supra note 54, at 1617; Womens Tribunal Written Judgment, supra note 54, 4. 104 Cottier and Mzee, supra note 91, at 499. For example, there were multiple incidents of reproductive violence at the so-called comfort stations operated by the Japanese Imperial Army during the war. 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. 108 D.M. The Trial Chamber recognized that several women miscarried after being raped and beaten by Hutu militia,79 and observed that [e]ven pregnant women, including those of Hutu origin, were killed on the grounds that the foetuses in their wombs were fathered by Tutsi men, for in a patrilineal society like Rwanda, the child belongs to the father's group of origin.80 Moreover, in interpreting the crime of genocide through imposing measures intended to prevent births, the Chamber stated: [T]he measures intended to prevent births within the group, should be construed as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages. Based on an analysis of the law and practice of past and present international criminal courts, it shows that accountability for conflict-related reproductive violence has been patchy at best, and that there has been little recognition of the harms that such violence causes to individual victims, as distinct from the groups to which they belong. 74 of the Statute (Odio Benito Dissent), Lubanga (ICC-01/04-01/06-2842), Trial Chamber I, 14 March 2014. However, it seems that the harm that most troubled the international community was not the interference with the victims reproductive autonomy and human dignity, but with the attempted destruction of their national, ethnic, racial or group. Jalloh (ed. The prosecutions application alleged that the Sudanese armed forces and affiliated Janjaweed militia had raped thousands of women and girls from particular ethnic groups in Darfur,115 and that hundreds of these women and girls became pregnant or died because of the rapes.116 It also linked this sexual and reproductive violence to Bashirs alleged genocidal intent, arguing that: Babies born as a result of these assaults have been termed Janjaweed babies and are rarely accepted as members of the community. 162 See Transcript, Ongwen (ICC-02/04-01/15-T-26-Red-ENG), Pre-Trial Chamber II, 6 December 2016, at 33, lines 2124; Transcript, Ongwen supra note 129, at 26, lines 2021. For example, although soldiers who used the comfort stations were supposed to use condoms, most did not. French The United Nations defines "forced pregnancy" as a CRIME AGAINST HUMANITY. Tamil However, it refers to one non-Serbian women who was raped and detained by Serb forces so that she would bear a Serbian child.67 Other reports suggest that this was one of several attempts to change the ethnic composition of the population through forced pregnancy.68. Kinyarwanda 54 Oral Judgment, Hirohito et al. 10 For brevity, this article uses the term international criminal courts to refer to wholly international mechanisms (such as the ICC) as well as internationalized or hyrbid criminal courts. As others have observed, this definition excludes many experiences which one might expect to be covered by the crime of forced pregnancy. Slovak There is a developing body of case law at the ICC concerning crimes of sexual and gender-based violence (SGBV). . Belarusian Mich. St. J. Int'l L. 121 Decision on the confirmation of charges, Mbarushimana (ICC-01/04-01/10-465-Red), Pre-Trial Chamber I, 16 December 2011. However, this proposal was rejected. Examples of Forced pregnancy in a sentence. In support of this charge, the prosecution alleged that RuSHA played a key part in imposing forced abortions on female labourers from Eastern nations, including Poland, Czechoslovakia, and Russia.40 Its role was to conduct racial examinations of pregnant women and (where possible) the relevant man, and then decide whether an abortion would be granted or denied, depending on whether the woman was expected to produce a racially valuable child.41 The authorization for this programme was a 1943 decree from Himmler, which stated that where a non-German woman in the Eastern occupied territories became pregnant to a member of the SS or the police, an interruption of pregnancy is to be carried out unless that woman is of good stock.42 The tribunal found that there was ample evidence of RuSHAs role in this abortion programme,43 and found that the abortions were indeed forced.44 However, it did not impose criminal liability for RuSHAs role in denying abortion to women on the basis of racial examinations. As these examples illustrate, reproductive violence has been discussed in several cases before the ICC. The Rome Statute Explanatory Memorandum, which defines the jurisdiction of the International Criminal Court, recognises rape, sexual slavery, forced prostitution, and forced pregnancy as crimes against humanity if part of a widespread or systematic practice. Other inhumane . Armenian From Capture to Courtroom: : Collaboration and the Digital Documentation of International Crimes in Ukraine. Beck, Hart, Nomos, 2016) 206, at 216; M. Cottier and S. Mzee, Paragraph 2(b)(xxii): Rape and other forms of sexual violence, in Triffterer and Ambos, ibid., 477, at 500. As one study conducted in northern Uganda reveals, reparations are doubly important because of the stigmatisation faced by the victims of sexual crimes which can affect their prospects of employment or marriage in later life. 35 Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations Concerning the Laws and Customs of War on Land, adopted 29 July 1899 in The Hague (entered into force 4 September 1900). (f) "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. Koenig and K.D. Malayalam The ICC Statute is the first international criminal legal instrument to recognize a separate crime of forced pregnancy, both as a crime against humanity and a war crime. 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. Nonetheless, it goes further in addressing reproductive violence than any prior instrument of international criminal law. The inclusion of the crime . Slovenian 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. The second act of reproductive violence charged in the RuSHA case was hampering reproduction of enemy nationals. "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. For example, the Nazis committed various types of reproductive violence during the Second World War, including the forced sterilization of Jewish and Roma people, and experiments on pregnant Jewish women.22 They were also responsible for what might be called collateral reproductive violence, such as causing women to miscarry as a result of torture, and causing forced impregnation through rape.23 None of these forms of violence were mentioned in the Charter of the International Military Tribunal (IMT), or the Nuremberg Tribunal as it is commonly known. The implication is that womens autonomy and dignity is not in itself a value protected by international criminal law, and that violence that offends these values must therefore have an ulterior motive, such as to intimidate or eliminate the group to which the victims belong, before the international community will respond. This conduct could potentially be prosecuted as a crime against humanity,150 by isolating the act of exposing the victim to risk of forced impregnation (as distinct from the preceding act of penetration, which if committed through force, threat, or coercion, would constitute rape).151 For instance, it could be charged using the crime against humanity of other inhumane acts, if it can be shown that the perpetrator intentionally exposed the victim to risk of forced impregnation,152 and meant to cause great suffering, or serious injury to body or to mental or physical health to the victim.153 When committed during an armed conflict, it may also constitute a war crime, such as outrages on personal dignity154 or violence to life.155 Alternatively, where the act occurs in connection with a crime within the jurisdiction of the ICC (such as rape), it could potentially be prosecuted as persecution even if it is not itself a crime under the ICC Statute.156 In this scenario, the prosecution would need to show that the victim was part of an identifiable group, that she was targeted one or more of the grounds listed in Article 7(1)(h), and that the perpetrators conduct resulted in the intentional and severe deprivation of a right contrary to international law157 such as the right to self-determination158 or the right to life.159. Finally, it can be observed in addition to making visible the experience of individual victims, the prosecution has shown that reproductive violence had a strategic use in the LRA. 108 D.M. Published by Oxford University Press. As one victim explained: they kill our males and dilute our blood with rape. There are particular challenges to prosecuting forced pregnancy as a crime against humanity and war crime. Tigrinya Estonian 34 The indictment also described experiments involving freezing and poisoning people, forcing them to drink seawater, and infecting them with diseases. (PT-2000-1-T), Women's International War Crimes Tribunal on Japan's Military Sexual Slavery, 4 December 2001 (Womens Tribunal Written Judgment). V (US Government Printing Office, 1949), at 109. The IMT acknowledged some of this evidence in its judgment, but only fleetingly, and only in so far as it related to the persecution of the Jews: it noted that Jewish people were subjected to experiments dealing with sterilization,29 but made no reference to the sterilization of other groups,30 or to the forced abortions or forced miscarriage mentioned at trial. 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. There are particular challenges to prosecuting forced pregnancy as a crime against humanity and war crime. Patrycja Grzebyk, Human and Non-Human Targets in Armed Conflicts, Investigative and Charging Considerations for International Crimes Targeting Individuals on the Basis of Sexual Orientation and Gender Identity, Achieving Justice for Child Survivors of Conflict-related Sexual Violence in the Democratic Republic of the Congo in Light of the Kavumu Case: : A Reply to Perissi and Naimer, About Journal of International Criminal Justice, 2. For example, there were no charges for forced miscarriage, and while killing of the Hutu nurse was captured in the charge of murder, there was no acknowledgement that she was targeted because she was pregnant, intersecting with other relevant grounds. This article is republished from The Conversation under a Creative Commons license. rights, the International Criminal Court (ICC) has criminalized forced pregnancy. reproductive crimes) have been used in the feminist scholarship on international criminal law for some time. 20092022 Bioethics Research Library Box 571212 Washington DC 20057-1212 202.687.3885 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. Therefore, throughout this paper, gender . 2 of the Genocide Convention, where the act is of a sexual nature, and affects the victims reproductive capacity, and is committed with an intent to destroy, in whole or in part, a national, ethnic, racial, religious or gender group. It is clear that perceptions of the types of conduct that can and should be prosecuted under international law have changed since the first international war crimes trials in the 1940s, where sexual violence crimes were largely overlooked,3 and the initial practice of the ICTY, ICTR and ICC, where these crimes were not always investigated and charged as a priority.4 Yet despite this increased attention to sexual violence, many other types of gender-based violence remain largely invisible in the study and the practice of international criminal law. Xhosa 51 GC II; Art. Koenig (eds), Women and International Human Rights Law (Transnational, 1999) 3, at 15. The United Nations (UN) Security Council created the tribunal in response to reports of widespread and flagrant violations of international humanitarian law in the former Yugoslavia, including mass killings, massive, organized and systematic detention and rape of women, and the continuance of the practice of ethnic cleansing.65 Both sexual and reproductive violence were endemic in this conflict. 69 Indictment, Gagovi (IT-96-23), Trial Chamber, 19 June 1996, 9.3, 9.13. 133 During the negotiations for the ICC Elements of the Crimes, it was proposed that the crime of forced pregnancy should require that the accused intended to keep the woman or women pregnant in order to affect the ethnic composition of a population or to carry out another grave violation of international law (emphasis added), which is different to the intent described in Art. I will also address the claim that the ICC Statute does not go far enough - that forced pregnancy is genocide. 97 Steains, supra note 92, at 366; Bedont, supra note 93, at 197. About | If you are talented and passionate about human rights then Amnesty International wants to hear from you. Under the Rome Statute, the crime of forced pregnancy . Forced pregnancy is considered a crime against humanity by the International Criminal Court, but not when it comes to "national laws relating to pregnancy.". See Art. -4 Crime against humanity of forced pregnancy 9 7 (1) (g)-5 Crime against humanity of enforced sterilization 9 . By the same token, it is not necessary to prove that the perpetrator has a special intent with respect to the outcome of the pregnancy, or that the pregnancy of the woman is in any way causally linked to her confinement.134. I will also address the claim that the ICC Statute does not go far enough - that forced pregnancy is genocide Topics: Law Rather, it focused on the agencys role in encouraging and compelling abortions (emphasis added), suggesting that the central concern was the use of abortion in order to eliminate particular racial groups, rather than the interference with womens reproductive autonomy as such. 147 GC IV. This avoids one of the potential difficulties for the prosecution, namely proving that the perpetrator knew that the victim was pregnant, and that this pregnancy was the result of force.136 In a case where there is evidence that the accused impregnated the victim personally, this knowledge requirement is relatively easy to prove. 148 Regarding the expressive rationale for ICL, see M. DeGuzman An Expressive Rationale for the Thematic Prosecution of Sex Crimes', in M. Bergsmo (ed. 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