Reproductive Violence and International Criminal Law (International Criminal Justice Series, 29) 9462654506, 9789462654501

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International Criminal Justice Series

Reproductive Violence and International Criminal Law

Tanja Altunjan

Volume 29

International Criminal Justice Series Volume 29

Series Editors Gerhard Werle, Berlin, Germany Moritz Vormbaum, Münster, Germany

Series Information The International Criminal Justice Series aims to create a platform for publications covering the entire field of international criminal justice. It, therefore, deals with issues relating, among others, to: – – – –

the work of international criminal courts and tribunals; transitional justice approaches in different countries; international anti-corruption and anti-money laundering initiatives; the history of international criminal law.

It is peer-reviewed and seeks to publish high-quality works emanating from excellent scholars. Editorial Office Prof. Dr. Moritz Vormbaum University of Münster Faculty of Law Bispinghof 24-25 48143 Münster, Germany [email protected]

More information about this series at http://www.springer.com/series/13470

Tanja Altunjan

Reproductive Violence and International Criminal Law

Tanja Altunjan Berlin, Germany

ISSN 2352-6718 ISSN 2352-6726 (electronic) International Criminal Justice Series ISBN 978-94-6265-450-1 ISBN 978-94-6265-451-8 (eBook) https://doi.org/10.1007/978-94-6265-451-8 Published by t.m.c. asser press, The Hague, The Netherlands www.asserpress.nl Produced and distributed for t.m.c. asser press by Springer-Verlag Berlin Heidelberg © t.m.c. asser press and the author 2021 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. This t.m.c. asser press imprint is published by the registered company Springer-Verlag GmbH, DE part of Springer Nature. The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany

Acknowledgements

This book is based on a dissertation which was defended at Humboldt-Universität zu Berlin on 14 July 2020. First and foremost, I would like to thank Prof. Dr. Gerhard Werle for supervising this work and creating the perfect research environment at his Chair at Humboldt-Universität zu Berlin. Prof. Werle’s guidance and support made this project possible in the first place. Secondly, I want to thank Prof. Dr. Martin Heger and Prof. Dr. Florian Jeßberger for their helpful feedback and encouragement. I am also grateful to the Studienstiftung des deutschen Volkes e.V. for funding the research which led to this book. I would like to thank my wonderful colleagues at Lehrstuhl Werle: Dr. Leonie Steinl, LL.M., Dr. Aziz Epik, LL.M., and Dr. Yao Li for their input, encouragement, and friendship throughout the years; Merle Iffert and Lisa Marie von Mansberg for being the first and last reader, respectively; Anja Schepke for her endless patience and support; and most importantly Nella Sayatz for being the best office companion and friend I could have asked for. Finally, I thank Jenny, Philipp, Sandra, and Dominika as well as Annemarie and Katharina for their unwavering support through this and everything else, and Alexander for standing beside me every step of the way. Most importantly, I want to thank my parents, Stefanie and Eric. This book is for them, because they made it (and everything else) possible.

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Contents

1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Aim and Impetus of This Book . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3.1 Sex and Gender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3.2 Sexualized and Gender-Based Violence . . . . . . . . . . . . . . . . . 1.3.3 Reproductive Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4 Theoretical and Methodological Background . . . . . . . . . . . . . . . . . . . 1.4.1 International Criminal Law in the International Legal Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4.2 Sources and Interpretation of International Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4.3 Feminist Approaches to International Law . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The Foundation: Sexualized Violence in International Law . . . . . . . . . 2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 The Factual Background: Conflict-Related Sexualized Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.1 Manifestations of Sexualized Violence in Conflict Situations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.2 Effects of Conflict-Related Sexualized Violence . . . . . . . . . . 2.2.3 Causes of Conflict-Related Sexualized Violence . . . . . . . . . . 2.2.4 Narratives of Conflict-Related Sexualized Violence . . . . . . . 2.2.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 International Humanitarian Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.1 Early Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.2 The Hague and Geneva Conventions . . . . . . . . . . . . . . . . . . . . 2.3.3 Sexualized Violence and the Concept of “Honour” in International Humanitarian Law . . . . . . . . . . . . . . . . . . . . . 2.3.4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 1 4 5 5 7 9 11 11 14 15 16 21 22 22 24 26 27 31 34 35 35 37 39 40

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2.4 International Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.1 Before World War II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.2 Trials Post-World War II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.3 The Cold War Period and Beyond . . . . . . . . . . . . . . . . . . . . . . 2.4.4 Statutes and Practice of the ad hoc Tribunals . . . . . . . . . . . . . 2.4.5 The International Criminal Court . . . . . . . . . . . . . . . . . . . . . . . 2.4.6 Other International and Hybrid Courts . . . . . . . . . . . . . . . . . . 2.4.7 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5 International Human Rights Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.1 Human Rights Instruments Focusing on the Protection of Women . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.2 Soft Law on Sexualized Violence . . . . . . . . . . . . . . . . . . . . . . . 2.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Historical Perspectives on Reproductive Violence in International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 The Factual Background: Conflict-Related Reproductive Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.1 Historical Overview on Reproductive Violence in Conflict Situations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.2 Reproductive Violence and Children Born of Rape in Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.3 Manifestations and Effects of Conflict-Related Reproductive Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 International Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.1 The Concept of Reproductive Violence in International Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.2 Reproductive Violence in Post-World War II Trials . . . . . . . . 3.3.3 Reproductive Violence in the Genocide Convention . . . . . . . 3.3.4 Reproductive Violence in the Statutes and Practice of Modern International and Hybrid Criminal Courts . . . . . . 3.3.5 Reproductive Violence in Legal Scholarship . . . . . . . . . . . . . 3.3.6 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 International Human Rights Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.1 Reproductive Rights as Internationally Recognized Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.2 Reproductive Violence as a Human Rights Violation . . . . . . 3.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

40 41 41 45 50 54 60 63 63 64 65 67 67 77 78 78 78 92 95 96 97 97 99 106 107 112 119 119 120 127 129 129

Contents

4 Reproductive Violence and Genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Pregnancy-Related Crimes as Genocide: Historical and Conceptual Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.1 The Impetus: Reports from the Former Yugoslavia . . . . . . . . 4.2.2 Rape as an Act of Genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.3 The Genocidal Nature of Pregnancy-Related Crimes: A “Logical Glitch”? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.4 Genocide and Children Born of Rape . . . . . . . . . . . . . . . . . . . 4.2.5 Summary and Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 The Prosecution of Pregnancy-Related Crimes as Genocide . . . . . . . 4.3.1 Preliminary Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.2 Causing Serious Bodily or Mental Harm to Members of the Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.3 Deliberately Inflicting on the Group Conditions of Life Calculated to Bring About Its Physical Destruction in Whole or in Part . . . . . . . . . . . . . . . . . . . . . . . . 4.3.4 Imposing Measures Intended to Prevent Births Within the Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.5 Forcibly Transferring Children of the Group to Another Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.6 The Intent to Destroy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.7 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Other Forms of Reproductive Violence as Genocide . . . . . . . . . . . . . 4.4.1 Forced Sterilization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.2 Forced Abortion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.3 Forced Contraception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Forced Pregnancy as a Crime Against Humanity and a War Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Historical and Conceptual Background . . . . . . . . . . . . . . . . . . . . . . . . 5.2.1 Preliminary Remarks on Terminology Regarding Pregnancy-Related Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.2 The Impetus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.3 Forced Pregnancy in the Human Rights Discourse . . . . . . . . 5.3 The Negotiations for the Statute of the International Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.1 Early Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.2 Preparatory Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.3 Rome Conference 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.4 Preparatory Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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137 138 138 139 148 150 152 155 156 157 161

162 164 170 173 176 176 177 180 181 182 183 183 187 188 189 189 191 194 196 196 197 200 205

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5.3.5 Analysis and Evaluation of the Drafting Process . . . . . . . . . . 5.4 Forced Pregnancy as a Separate Crime Under International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.1 Implicit Prosecution as Other Crimes . . . . . . . . . . . . . . . . . . . 5.4.2 Necessity of Separate Crimes? . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.3 Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5 The Definition of Forced Pregnancy in the ICC Statute . . . . . . . . . . . 5.5.1 Protected Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.2 Preliminary Remarks on the Elements of the Crime . . . . . . . 5.5.3 Woman Forcibly Made Pregnant . . . . . . . . . . . . . . . . . . . . . . . 5.5.4 Unlawful Confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.5 General Intent, Article 30 of the ICC Statute . . . . . . . . . . . . . 5.5.6 Special Intent, Article 7(2)(f) of the ICC Statute . . . . . . . . . . 5.5.7 No Effect on National Laws Relating to Pregnancy . . . . . . . . 5.5.8 Proposals De Lege Ferenda . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.6 Forced Pregnancy Beyond the ICC . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.6.1 Forced Pregnancy in Other Jurisdictions . . . . . . . . . . . . . . . . . 5.6.2 Forced Pregnancy as a Crime Under Customary International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Enforced Sterilization and Other Forms of Reproductive Violence as Crimes Against Humanity and War Crimes . . . . . . . . . . . . 6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 The Crime of Enforced Sterilization . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.1 Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.2 Elements of the Crime of Enforced Sterilization . . . . . . . . . . 6.2.3 Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 “Unnamed” Reproductive Crimes: Implicit Prosecution of Reproductive Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.1 The Categorization of Reproductive Violence as “Any Other Form of Sexual Violence”? . . . . . . . . . . . . . . . . . . . . . . . 6.3.2 Persecution on the Grounds of Gender . . . . . . . . . . . . . . . . . . 6.3.3 Necessity of Separate Reproductive Crimes? . . . . . . . . . . . . . 6.3.4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

207 210 210 212 216 220 220 224 225 231 237 238 244 251 255 255 257 259 260 271 272 272 272 275 277 278 278 279 286 286 288 288 289

7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297

Chapter 1

Introduction

Contents 1.1 Aim and Impetus of This Book . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3.1 Sex and Gender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3.2 Sexualized and Gender-Based Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3.3 Reproductive Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4 Theoretical and Methodological Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4.1 International Criminal Law in the International Legal Order . . . . . . . . . . . . . . . . 1.4.2 Sources and Interpretation of International Criminal Law . . . . . . . . . . . . . . . . . . . 1.4.3 Feminist Approaches to International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 5 5 7 9 11 11 14 15 16

Abstract Reproductive violence is prevalent in accounts of conflict scenarios from around the world and throughout history. Nevertheless, this type of gender-based violence has rarely come to the attention of international prosecutors and judges. In fact, though the related phenomenon of conflict-related sexualized violence is regularly condemned by the international community and increasingly addressed in international criminal trials, reproductive violence remains in the shadows. Against this background, this book aims to evaluate the historical development and current potentials of international criminal law to address different manifestations of conflictrelated reproductive violence. This first chapter provides an overview on the aim and structure of the book. It also offers definitions for key concepts and describes the theoretical and methodological background upon which the subsequent chapters are built. Keywords International Criminal Court · ICC Statute · Ongwen · Sex and gender · Sexual violence · Sexualized violence · Gender-based violence · Reproductive violence · International law · Feminist approaches to international law

1.1 Aim and Impetus of This Book The trial against former rebel commander Dominic Ongwen concluded before the International Criminal Court (ICC) in February 2021, just as this book was going to © t.m.c. asser press and the author 2021 T. Altunjan, Reproductive Violence and International Criminal Law, International Criminal Justice Series 29, https://doi.org/10.1007/978-94-6265-451-8_1

1

2

1 Introduction

press. One of the trial’s most significant aspects was its focus on gender-based crimes. Besides reflecting a new prosecutorial strategy in charging crimes of a gender-based nature,1 this trial also marked the first prosecution and conviction of the reproductive crime of forced pregnancy.2 The Rome Statute of the International Criminal Court (ICC Statute) lists forced pregnancy as both a war crime and a crime against humanity.3 Its unprecedented inclusion was the result of exceptionally controversial negotiations before and during the Rome Conference in 1998. The crime’s complex definition, which the drafters added to the ICC Statute in order to enshrine the hard-won compromise, reflects these disagreements.4 Against this background, the interpretation of the crime’s elements poses significant challenges and its scope of application remains unsettled. The inclusion of forced pregnancy in the ICC Statute and its first prosecution raise questions regarding the criminalization of reproductive violence under international law in general. International courts and legal scholars have paid increasingly close attention to conflict-related sexualized violence in the past two decades. There is vast jurisprudence on the commission of rape and similar crimes in conflict scenarios as well as academic literature on the criminalization and prosecution of such acts under international law. While sexualized violence was long regarded as a by-product of war, it is now frequently conceptualized as a “weapon of war”, and rightly seen as deserving of international attention and criminal prosecution. Despite this newfound awareness of the devastating reality of conflict-related sexualized crimes, international law has thus far remained silent on a closely related phenomenon: reproductive violence, meaning violence affecting the reproductive system. When international institutions and instruments address reproductive violence at all, they usually do not distinguish it from the related concepts of sexualized and gender-based violence. In fact, despite their frequent use in theory and practice, the scope of these terms remains remarkably unclear. Like sexualized violence, reproductive violence has served as an instrument of war and conflict throughout history. The forcible prevention or promotion of reproduction can constitute an effective tool of asserting power and controlling individuals as well as collectivities. In preventing individuals from making their own reproductive choices, perpetrators are able to invade their victims’ most personal sphere and cause severe long-term consequences. On the collective level, interfering with a group’s reproduction may eventually bring about its social and even physical destruction. As Rosemary Grey asserted, reproductive violence dehumanizes its victims to “mere people-generators, rather than bearers of aspirations, dignity, and rights” by 1 See

The Office of the Prosecutor of the International Criminal Court 2014. Prosecutor v Dominic Ongwen, Judgment, 4 February 2021, ICC-02/04-01/15 (Ongwen 2021), paras 2717–2729, 3056–3062; ICC, Prosecutor v Dominic Ongwen, Decision on the Confirmation of Charges, 23 March 2016, ICC-02/04-01/15 (Ongwen 2016), paras 96–101. 3 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (ICC Statute), as a crime against humanity Article 7(1)(g); as a war crime Article 8(2)(b)(xxii) and Article 8(2)(e)(vi). 4 Ibid., Article 7(2)(f). 2 ICC,

1.1 Aim and Impetus of This Book

3

employing their reproductive capacity as “a resource to be commandeered for political, ideological or economic ends”.5 Against this background, it comes as no surprise that reproductive violence has been a feature of macro-criminal contexts in various manifestations. This book seeks to describe and analyse the extent to which reproductive violence is criminalized under current international criminal law. This analysis will be conducted with a view to the historical context and development of international law pertaining to gender-based violence. In light of the interplay between international criminal law and international human rights law, it will also consider the treatment of gender-based violence and the protection of various aspects of reproductive autonomy under international human rights law. In order to analyse its criminalization, this book develops a conceptualization of conflict-related reproductive violence in distinction to the related notions of sexualized violence and gender-based violence. It examines the phenomenon of conflict-related reproductive violence in practice and evaluates whether substantive international criminal law—namely genocide, crimes against humanity, and war crimes—adequately reflects its manifestations and consequences. In doing so, this book explores the dynamic potentials of the ICC Statute for the prosecution of reproductive violence. In view of the controversial crime of forced pregnancy, the analysis mainly focuses on pregnancy-related violence, namely the acts of forced impregnation and forced pregnancy. Moreover, it will consider other forms of reproductive violence such as forced sterilization, forced abortion, and forced contraception. With regard to the crime of genocide, this book highlights possibilities to prosecute reproductive violence under the relevant provisions and points out the challenges relating thereto. Pertaining to crimes against humanity and war crimes, it delineates the historical development that led to the inclusion of the crimes of forced pregnancy and enforced sterilization in the ICC Statute and offers an interpretation of their elements. Furthermore, this book proposes avenues for the prosecution of other forms of reproductive violence under existing provisions of the ICC Statute. This book concludes that it is possible to charge, prosecute, and punish various forms of reproductive violence under current international criminal law, as genocide on the one hand and as crimes against humanity and war crimes on the other hand. Nevertheless, the overarching focus of international law on sexualized manifestations of gender-based violence, both on paper and in practice, has concealed the widespread reality of conflict-related reproductive violence. Up until the trial against Ongwen at the ICC, international criminal legal practice addressed reproductive violence only in passing—and only when it was embedded in a broader attack against a certain group. However, in order to adequately reflect the unique harm imposed upon the victims, it is imperative to conceptualize reproductive violence as an attack against an individual’s reproductive capacity and autonomy. In practice, such an attack often (though not necessarily) overlaps with an act of sexualized violence. Nevertheless, the categorization of sexualized violence and reproductive violence as distinct manifestations of gender-based violence is essential to surface the 5 Grey

forthcoming, p 5.

4

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reproductive dimensions of the victims’ experiences and to reflect the perpetrators’ individual criminal responsibility. Taking into account the developments of international human rights law with regard to the protection of reproductive human rights and the condemnation of reproductive violence, the international criminal legal framework is—with certain limitations—capable of responding to conflict-related reproductive violence. Although there is certainly room for amendments, several opportunities for its comprehensive treatment as crimes under international law exist. As is often the case in international criminal law, the main challenge lies in the translation of these opportunities into legal practice.

1.2 Structure After providing relevant definitions and depicting the theoretical and methodological background in this first chapter, Chap. 2 addresses the treatment of conflict-related sexualized violence under international law. It highlights the manifestations of such violence in conflict scenarios and depicts the development and current framework of international humanitarian law, international criminal law, and international human rights law as related to sexualized violence. Building upon this foundation, Chap. 3 focuses specifically on conflict-related reproductive violence, which is understood as a distinct form of gender-based violence, in a historical perspective. Again, the analysis focuses first on the manifestations of such violence before examining its treatment under international law, particularly international criminal law and international human rights law. In this context, Chap. 3 develops a definition of reproductive violence and elaborates on the individual dimension as well as the collective dimension of this type of violence. The remainder of the book focuses more specifically on genocide, crimes against humanity, and war crimes, highlighting the potentials to prosecute various manifestations of reproductive violence as crimes under international law. Chapter 4 addresses the crime of genocide under Article II of the Genocide Convention,6 focusing both on pregnancy-related (or positive) forms of reproductive violence, namely forced impregnation and forced pregnancy, as well as on negative manifestations such as forced sterilization, forced abortion, and forced contraception. Chapter 5 centers on forced pregnancy as a crime against humanity and war crime under the ICC Statute. It portrays the negotiating history and controversies behind the adoption of this crime and offers an interpretation of its elements informed by the protected value of reproductive autonomy. In this context, Chap. 5 also addresses the benefits of explicit criminalization of different manifestations of reproductive violence. Chapter 6 then deals with the crime of enforced sterilization, which is also included as a crime against humanity and a war crime in the ICC Statute. Furthermore, it evaluates avenues for the prosecution of other, i.e. not specifically criminalized, forms 6 Convention

on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 278 (entered into force 12 January 1951) (Genocide Convention).

1.2 Structure

5

of reproductive violence and offers an interpretation of the ICC Statute’s residual crime of “any other form of sexual violence” in the context of reproductive violence. Finally, Chap. 7 summarizes the findings and contains the book’s conclusions.

1.3 Terminology In order to conduct the analysis, it is necessary to clarify the terminology employed in the course of this book. This section offers relevant working definitions, which will be further elaborated on in the respective chapters.

1.3.1 Sex and Gender For the purposes of this book, the terms gender and sex are defined in accordance with the following definition provided by the World Health Organization: Gender refers to the characteristics of women, men, girls and boys that are socially constructed. This includes norms, behaviours and roles associated with being a woman, man, girl or boy […]. Gender interacts with but is different from sex, which refers to the different biological and physiological characteristics of females, males and intersex persons, such as chromosomes, hormones and reproductive organs.7

This definition clearly differentiates between gender, which is understood in a socially constructed manner, and sex, understood to refer to biological characteristics traditionally defining males and females.8 Dating back to Simone de Beauvoir’s seminal work “Le Deuxième Sexe” of 1949, the differentiation between gender and sex has been a key concept in feminist legal studies.9 It has also been acknowledged in recent international legal instruments.10 7 World

Health Organization, Gender and Health, https://www.who.int/health-topics/gender (accessed 24 October 2020). See also Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, opened for signature 11 May 2011, CETS no. 210 (entered into force 1 August 2014) (Istanbul Convention), Article 3(c): “‘[G]ender’ shall mean the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men”. 8 See also Adamietz 2011, p 23; Charlesworth and Chinkin 2000, p 3; Durham and O’Byrne 2010, pp 32–34; Kappler 2019, pp 32–36; Odio-Benito 2005, pp 165–166. 9 de Beauvoir 1949. Without explicitly using the terms, Simone de Beauvoir understood the category “woman” independently from anatomical characteristics. The translation of her famous statement in this regard—“On ne naît pas femme, on le deviant.”—has been controversial. The most commonly used English version originates from the 1953 translation by H.M. Parshley: “One is not born, but rather becomes, a woman.” See also Kappler 2019, pp 32–33; Künzel 2012, pp 67–69. 10 See International Committee of the Red Cross 2004, p 7; International Law Commission 2019, paras 41–42; The Office of the Prosecutor of the International Criminal Court 2014, p 3; United Nations Committee on the Elimination of Discrimination Against Women 2010, para 5. See also Grey et al. 2019, pp 966–968 with further references.

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The term gender describes societal attributions and expectations concerning men and women, boys and girls, and persons with non-binary identities. It acknowledges the structural inequality and power hierarchy between men and women as well as stereotypical constructions of what is traditionally considered masculine and feminine.11 Such an understanding of gender also allows for an analysis of the potential stigma and discrimination faced by those who do not conform to traditional gender roles and expectations. As mentioned, the term sex describes biological differences between males and females. Though traditionally understood as binary categories, scientific research has demonstrated the fragility of this seemingly clear biological distinction.12 Consequently, sex must be understood on a spectrum rather than as clear alternatives. Still, this book uses the term sex to describe biological and physiological differences between males and females, while acknowledging that the differentiation is not clear-cut and that sexes beyond male and female exist.13 The ICC Statute includes a definition of gender in Article 7(3).14 It is the first international instrument to codify this term. However, the definition has been criticized with a view to a lack of differentiation between gender and sex. This will be further analysed below.15

11 See

Odio-Benito 2005, p 166; Schwarz 2019, p 36. illustratively Constitutional Court of Germany, Decision, 10 October 2017, 1 BvR 2019/16 (Dritte Option 2017), para 9. See also Baer 2004, pp 25–26; Charlesworth and Chinkin 2000, pp 3–4. In this regard, it deserves emphasis that the sex/gender binary is increasingly being questioned and replaced with an understanding of both concepts in a fluid, socially constructed manner, which challenges traditional feminist approaches to international law, see McNeilly 2019. See generally Butler 1990. 13 Pertaining to German law, the German Constitutional Court ruled that the legislator must account for a “third option” when assigning a legal status, which has led to the adoption of a law introducing the category “diverse” beyond the traditional categories “male” and “female”, as well as the option to refrain from categorization. See Dritte Option 2017, above n 12; Gesetz zur Änderung der in das Geburtenregister einzutragenden Angaben (Law Changing the Information to be Entered Into the Birth Register), 2018 I Bundesgesetzblatt 2635, 18 December 2018. See generally Schmidt 2012. 14 ICC Statute, above n 3, Article 7(3): “For the purpose of this Statute, it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above.” 15 See Chap. 2, Sect. 2.4.5.2. 12 See

1.3 Terminology

7

1.3.2 Sexualized and Gender-Based Violence 1.3.2.1

Definitions

A clear legal definition of the term “gender-based violence” does not exist. The International Criminal Court’s Office of the Prosecutor provided the following definition in its Policy Paper on Sexual and Gender-Based Crimes of 2014: ‘Gender-based crimes’ are those committed against persons, whether male or female, because of their sex and/or socially constructed gender roles. Gender-based crimes are not always manifested as a form of sexual violence. They may include non-sexual attacks on women and girls, and men and boys, because of their gender.16

In accordance with this definition, gender-based violence is understood here to encompass all forms of violence directed against persons because of their sex or their gender.17 Similarly, a legal definition of the terms “sexual violence” or “sexualized violence” has not been established.18 The ICC’s Office of the Prosecutor provided the following definition of “sexual crimes”: ‘Sexual crimes’ that fall under the subject-matter jurisdiction of the ICC are listed under articles 7(1)(g), 8(2)(b)(xxii), and 8(2)(e)(vi) of the Statute […]. An act of a sexual nature is not limited to physical violence, and may not involve any physical contact – for example, forced nudity. Sexual crimes, therefore, cover both physical and non-physical acts with a sexual element.19

Thus, the Office of the Prosecutor uses “sexual crimes” as a general term for the crimes under the jurisdiction of the ICC listed in the relevant provisions,20 but does not define it further. As to the crime against humanity and war crime of “any other form of sexual violence”, considerable uncertainty exists regarding the exact nature of acts encompassed by the provision.21 Broadly speaking, “sexual violence” can be understood to refer to violent acts committed with a sexual component, i.e. violence exercised in a sexualized manner. Irrespective of its precise definition, it is questionable whether the term “sexual violence” is entirely appropriate. In fact, sexual violence is not an exercise of sexuality 16 The

Office of the Prosecutor of the International Criminal Court 2014, p 3.

17 See Schwarz 2019, p 45. See also Grey 2019, pp 49–61, defining gender-based violence as violence

committed against victims because of their gender identity, in order to affirm the perpetrator’s own gender identity, or as a form of punishment for defying gender norms. With regard to gender-based violence against women, see also Istanbul Convention, above n 7, Article 3(d), and United Nations Committee on the Elimination of Discrimination Against Women 1993, para 6 (“violence that is directed against a woman because she is a woman or that affects women disproportionately”). 18 See Grey 2019, p 64; Schwarz 2019, p 32. 19 The Office of the Prosecutor of the International Criminal Court 2014, p 3. 20 See Schwarz 2019, p 36. 21 See Chap. 6, Sect. 6.3.1.

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as such, but rather an exercise of violence in a sexualized manner, using sexuality as a means.22 This differentiation is more appropriately captured by the term “sexualized violence”, which is commonly used in the German-speaking academic context.23 Although the terms “sexual violence” and “sexualized violence” do not differ in the acts they label, the latter term is given preference in this book and will be used to refer to violence exercised in a sexualized manner.

1.3.2.2

The Relation Between “Sexualized Violence” and “Gender-Based Violence”

Though they are often used interchangeably, it is crucial to acknowledge that the terms “gender-based violence” and “sexual or sexualized violence” are not synonymous. Sexualized violence is the commission of violent acts in a sexualized manner, whereas gender-based violence is violence committed against persons because of their gender. As gender-based violence does not necessarily entail a sexualized element, it follows that the term “gender-based violence” is broader than “sexual or sexualized violence”.24 In other words, the category of gender-based violence includes sexualized violence, but is not limited to it, meaning that sexualized violence can be seen as a sub-category of gender-based violence. In contrast to the understanding outlined above, some have argued that not all forms of sexualized violence are necessarily committed against persons because of their gender, entailing that the category of sexualized violence would be broader than gender-based violence in some cases.25 However, it is more convincing to conceptualize gender broadly and to take into consideration its necessary intersection with the concepts of sex and sexual identity. All acts of a sexualized nature are typically linked to socially constructed gender roles. Without relinquishing the distinction between gender and sex, all violations of a person’s sexual autonomy should thus be understood as forms of gender-based violence.26 Conversely, based on the definitions provided above, it is clear that gender-based violence may also occur in non-sexualized manifestations. In fact, non-sexualized forms of gender-based violence are common both in peace and in conflict situations. For example, intimate partner violence and femicide, meaning the killing of a woman typically committed by her partner or ex-partner, are common forms of non-sexualized gender-based violence.

22 See Bock 2010, pp 133–134; Seifert 1993, pp 86–87; Vest and Sutter 2014, marginal no 422. But

see Eriksson Baaz and Stern 2018, challenging the dominant understanding that conflict-related rape is not about sex. 23 See Schwarz 2019, p 34; Werle and Jeßberger 2020, marginal no 1061. 24 See also Gaggioli 2014, p 510; Oosterveld 2009, p 416; Oosterveld 2011, p 94; Schwarz 2019, pp 45–46. 25 See e.g. Gaggioli 2014, p 510. 26 See also Grey 2019, p 64.

1.3 Terminology

9

A further example, which is relevant particularly in the context of international criminal law, is the act of forced marriage.27 Though there is typically a factual connection to sexualized abuse, the act of forced marriage itself does not necessarily entail a sexualized component.28 In this regard, the ICC Pre-Trial Chamber II held that “the central element of forced marriage is the imposition of ‘marriage’ on the victim, i.e. the imposition, regardless of the will of the victim, of duties that are associated with marriage, as well as of a social status of the perpetrator’s ‘wife’.”29 The Appeals Chamber of the Special Court for Sierra Leone also stated that “forced marriage is not predominantly a sexual crime” in the case against Alex Tamba Brima and others.30 Nevertheless, forced marriage is often wrongly categorized as a form of sexualized violence.31 This example illustrates that the differentiation between sexualized and other gender-based violence is not clear-cut.32 Other examples of gender-based violations not necessarily of a sexualized nature are those relating to reproduction, for example forced sterilization, forced abortion, and forced pregnancy. In view of the definition of gender-based violence, it is clear that it is not limited to violence against women. An example of non-sexualized gender-based violations affecting men are “mere” killings of men in order to destroy an ethnic group, for example the Srebrenica massacre of 1995: When such crimes are rooted in a construction of masculinity that regards men as the sole carriers of ethnicity, passing it on to their children, they are of a gender-based nature.33

1.3.3 Reproductive Violence The term “reproductive violence” concerns acts which affect the victim’s reproductive system, organs, process, or capacity to reproduce. In this regard, it is important to note that reproductive violence does not necessarily entail a sexualized component: While it may be committed in a sexualized manner, an act of reproductive violence may also be carried out in other, non-sexualized ways. Thus, reproductive violence is understood here as a further sub-category of gender-based violence, meaning that it is committed against persons because of their gender, and more precisely because of their reproductive capacity. The definition of reproductive violence, which is at the core of this book, will be further explored below.34 The following subsections 27 See

e.g. Oosterveld 2009, p 416; Oosterveld 2011, pp 97–98. Palmer 2009, p 133. 29 Ongwen 2016, above n 2, para 93. See also Ongwen 2021, above n 2, para 2750. 30 Special Court for Sierra Leone, Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Appeals Judgment, 22 February 2008, SCSL-2004-16-A, para 195. On the Special Court’s jurisprudence on forced marriage, see Chap. 2, Sect. 2.4.6.1. 31 See e.g. United Nations Security Council 2019, para 4. 32 See also ibid., using the terms interchangeably. 33 See Markard and Adamietz 2008, p 262; Odio-Benito 2005, p 166. 34 See Chap. 3, Sect. 3.3.1. 28 See

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1 Introduction

briefly define certain manifestations of reproductive violence which are dealt with throughout this book.

1.3.3.1

Forced Impregnation, Forced Pregnancy, Forced Maternity, and Similar Terms

The terminology on reproductive crimes relating to pregnancy and motherhood is often imprecise. Several terms are used, often interchangeably, to refer to a variety of forcible acts concerning (attempted or successful) conception, the pregnancy as such, as well as actual childbirth and maternity. The most frequently used terms are “forced impregnation” and “forced pregnancy”, though the relationship between the two often remains foggy. During the 1990s, several authors called for the criminalization of “forced impregnation”.35 The term that eventually surfaced in the ICC Statute, however, was “forced pregnancy”. For the purposes of this book, forced impregnation is defined as the forcible act resulting in pregnancy. The act of forced pregnancy is defined, in accordance with Article 7(2)(f) of the ICC Statute, as the confinement of a woman forcibly made pregnant. The act of forced pregnancy is thus preceded by the act of forced impregnation. The term “pregnancy-related crimes” will be used as an umbrella term encompassing both forced impregnation and forced pregnancy. Furthermore, the terms “forced maternity”,36 “forced motherhood”,37 “forced childbearing”,38 “forced reproduction”,39 “enforced procreation”,40 and “forced continuation of pregnancy”41 have appeared in the literature and in international practice, though generally without clear definitions. This will be further discussed below.42

35 Most

forcefully argued by Goldstein 1993. See Chap. 5, Sect. 5.2.2.1.

36 Ambos 2013b, p 102; Askin 1997, pp 402–403; Carpenter 2000; Cottier and Mzee 2016, marginal

no 720; D’Costa and Hossain 2010, pp 343–345; Eriksson 2000, p 420; Green et al. 1994, pp 185– 189; Ray 1997, pp 809, 824, 826; Rimmer 2010, p 109; Women in the Law Project 1994, pp 95, 97. 37 Eriksson 2000, p 322; MacKinnon 1993, pp 62, 78; Moshan 1998, pp 163–164; Ray 1997, pp 808–810; Rubio-Marín 2012, p 75. 38 Durham and O’Byrne 2010, p 44; MacKinnon 1993, p 76; Toy-Cronin 2010, p 585. 39 MacKinnon 1994, p 13. 40 Extraordinary Chambers in the Courts of Cambodia, Prosecutor v Nuon Chea, Ieng Sary, Khieu Samphan and Ieng Thirith, Closing Order, 15 September 2010, 002/19-09-2007-ECCC-OCIJ, para 1445. 41 United Nations Committee on the Elimination of Discrimination Against Women 2017, para 18. 42 See Chap. 5, Sect. 5.2.1.

1.3 Terminology

1.3.3.2

11

Forced Contraception, Forced Abortion

Contraception can be defined as a method that prevents a pregnancy from taking place.43 Whether taken before or after the fact of sexual intercourse (often called “emergency contraception” in the latter case), contraception may only prevent pregnancy, but does not affect a pregnancy that has already been established.44 Forced contraception thus refers to all forcible acts undertaken surgically, medicinally, or physically in order to prevent pregnancy. Conversely, abortion means all methods of terminating a pregnancy that has already been established, i.e. taking effect after the implantation of the fertilized egg into the lining of the uterus. Forced abortion can be carried out medicinally, surgically, or using physical force.

1.3.3.3

Forced Sterilization, Forced Castration

Sterilization refers to the act of depriving an individual of his or her capacity of reproducing,45 usually by way of a surgical procedure. Castration is the removal of testes or ovaries46 and can thus be considered a form of sterilization. In contrast to contraception, sterilization is a permanent, though not necessarily irreversible, measure to prevent reproduction.

1.4 Theoretical and Methodological Background 1.4.1 International Criminal Law in the International Legal Order International criminal law encompasses all norms that establish, exclude, or otherwise regulate responsibility for crimes under international law.47 It comprises the four core crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. International criminal law can be applied by international as well as domestic courts.48 Specifically, the core crimes fall under the material jurisdiction of the International Criminal Court, which was established as a permanent court in 2002. The 43 See

American College of Obstetricians and Gynecologists 2015. American College of Obstetricians and Gynecologists 2017. On the legal misconceptions of scientific evidence and with further references, see also Frank 2019–2020. 45 Merriam Webster Medical Dictionary, Sterilize, https://www.merriam-webster.com/dictionary/ sterilize#medicalDictionary (accessed 24 October 2020). 46 Merriam Webster Medical Dictionary, Castrate, https://www.merriam-webster.com/dictionary/ castrate#medicalDictionary (accessed 24 October 2020). 47 See Werle and Jeßberger 2020, marginal no 97. 48 Ibid., marginal no 103. 44 See

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purpose of international criminal law is to protect the fundamental values of “peace, security and well-being of the world”.49 Two other areas of international law are of relevance to this book, namely international humanitarian law and international human rights law.

1.4.1.1

International Criminal Law and International Humanitarian Law

International humanitarian law is a body of law that regulates conduct in wars (jus in bello).50 It aims to limit the consequences of war on the affected persons, both combatants and civilians. There exists a historical division of international humanitarian law into two spheres, though there have always been overlaps. The Law of Geneva protects the victims of armed conflicts, namely civilians as well as combatants no longer taking part in hostilities. The most important instruments in this regard are the four Geneva Conventions of 1949 and the two Additional Protocols of 1977. The Law of The Hague aims to protect combatants by way of prohibiting certain means and methods of warfare. It consists of the two The Hague Regulations adopted in 1899 and 1907 as well as several conventions adopted after World War II.51 Certain violations of international humanitarian law are directly punishable under international law. In this sense, international criminal law functions as a mechanism to enforce international humanitarian law by way of punishing grave violations as war crimes.52 Accordingly, every war crime is based on a violation of a rule of international humanitarian law.53

1.4.1.2

International Criminal Law and International Human Rights Law

International criminal law and international human rights law are both rooted in international humanitarian law and have both developed as a consequence of the atrocities committed by the Nazi regime before and during World War II.54 Both areas of law have some common characteristics: They share the same objective, namely to guarantee a minimum standard of humane treatment.55 Furthermore, they both deviate from the traditionally state-centered nature of international law. International criminal law ascribes criminal responsibility to the individual, whereas international

49 ICC Statute, above n 3, preamble para 3; see also Werle and Jeßberger 2020, marginal nos 105–106. 50 See

Werle and Jeßberger 2020, marginal nos 1136–1137. ibid., marginal nos 1148–1151. 52 See ibid., marginal nos 1162–1164. 53 See ibid., marginal nos 1165–1166. 54 See ibid., marginal no 176. 55 See Cryer et al. 2019, p 13. 51 See

1.4 Theoretical and Methodological Background

13

human rights law establishes individual rights.56 Despite these similarities, however, they are distinct bodies of law and cannot be equated.57 Whereas human rights obligations are directed primarily towards states and the transgressors are typically state agents, international criminal law is directed towards individuals.58 International criminal law can be seen as an alternative means of protecting human rights when states fail to respect their obligations under international human rights law.59 Yet not every violation of internationally recognized human rights is criminalized under international law;60 instead, the international criminalization represents the highest level of human rights protection,61 applicable only to the most serious violations of human rights. A separate question is whether states have a duty to prosecute serious human rights violations. Such an obligation exists under certain circumstances,62 but is not a general principle of customary international law.63 However, there is a growing tendency in international legal practice to assume such an obligation from the perspective of international human rights law, though the rationale given for this assumption varies.64 According to Seibert-Fohr, not every serious human rights violation brings about a duty for states to prosecute under international human rights law—and neither should it, as criminal prosecution is not the only and not always the best way of protecting human rights.65 Nevertheless, international criminalization and prosecution can function as enforcement mechanisms of international human rights law when human rights protection at the (primary) national level fails.66 At the same time, international human rights serve as a limitation to international criminal law: First, the principles of legality and culpability must be adhered to, and second, international criminal procedure must respect human rights standards with regard to the accused, embodied particularly in the right to a fair trial.67 Through this limitation, the protection of human rights also legitimizes the extension of international penal authority.

56 See

ibid.; Werle and Jeßberger 2020, marginal no 176. Cryer et al. 2019, p 14; Seibert-Fohr 2009, p 289. 58 See Cryer et al. 2019, p 13. 59 See ibid.; Werle and Jeßberger 2020, marginal nos 177–178. 60 See Cryer et al. 2019, pp 14–15; Seibert-Fohr 2009, pp 292–293. 61 See Bassiouni 1985, p 1455; Werle and Jeßberger 2020, marginal nos 177–183. 62 For example, Article I of the Genocide Convention, above n 6, obligates states to prosecute the crime of genocide. See further Seibert-Fohr 2009, pp 153–187. 63 See Seibert-Fohr 2009, p 278. 64 See ibid., pp 190–193. Seibert-Fohr identified two lines of reasoning, based on a prevention of recurrence or on an individual right of victims to an effective remedy, and criticized the notion that victims have an individual right to remedies in the form of punishment of perpetrators, see pp 206–214. 65 See ibid., p 294. 66 See Werle and Jeßberger 2020, marginal nos 177–179. 67 See Kappler 2019, p 185; Werle and Jeßberger 2020, marginal no 184. 57 See

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The legitimizing function of human rights in relation to international criminal law also comes into play as follows: International criminal law protects the “peace, security and well-being of the world”.68 An attack upon these fundamental values affects the international community as a whole, and thus justifies the international character of the corresponding criminal norms. This international dimension is the reason why international criminal law “pierces the veil of state sovereignty”69 , meaning that the international community can legitimately prosecute these crimes. In this sense, international criminal law aims to protect a minimum standard of civilization, which is universally accepted.70 This universally accepted minimum standard of civilization is manifested in internationally recognized, fundamental human rights.71 Thus, crimes under international law embody the protection of fundamental human rights.

1.4.2 Sources and Interpretation of International Criminal Law The sources of international criminal law correspond with those of international law in general: They are listed in Article 38(1) of the Statute of the International Court of Justice.72 For the purposes of the International Criminal Court, Article 21 of the ICC Statute lists the sources of law and establishes a hierarchy.73 As provided by Article 21(1)(a), the ICC Statute itself constitutes the main source of law, supplemented by the Elements of Crimes and Rules of Procedure and Evidence. Additional sources of law are applicable treaties and the principles and rules of international law (Article 21(1)(b)) as well as general principles of law derived from national legal systems (Article 21(1)(c)). The interpretation of international criminal law is guided, as international law in general, by Articles 31 and 32 of the Vienna Convention on the Law of Treaties.74 Article 31(1) provides that a “treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Accordingly, the classic interpretative methods apply: grammatical, teleological, systematic, and—in a supplementary manner—historical interpretation.75

68 ICC

Statute, above n 3, preamble para 3. Panzer der staatlichen Souveränität durchbrechen”, Jescheck 1952, p 11. 70 See Werle and Jeßberger 2020, marginal no 110. 71 See generally with regard to supranational ius puniendi Ambos 2013a. See also Kappler 2019, pp 184–185; Werle and Jeßberger 2020, marginal no 110 with further references. 72 See generally Ambos 2018, § 5 marginal nos 5–11; Werle and Jeßberger 2020, marginal nos 191–226. 73 See Werle and Jeßberger 2020, marginal nos 233–248. 74 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980). 75 See generally Kappler 2019, pp 77–81; Werle and Jeßberger 2020, marginal nos 227–232. 69 “[D]en

1.4 Theoretical and Methodological Background

15

With regard to the current state of international criminal law, this book focuses on the Rome Statute of the International Criminal Court. Though this Statute was adopted in the form of an international treaty, and thus primarily binds its states parties, it constitutes the main source of international criminal law and to a large extent represents the current state of customary international law.76 Pertaining to genderbased violence in particular, the codification of several specific acts as crimes against humanity in Article 7(1)(g) and as war crimes in Article 8(2)(b)(xxii) and Article 8(2)(e)(vi) of the ICC Statute refined and consolidated the international criminal legal framework. In interpreting crimes under the ICC Statute, the Elements of Crimes constitute an important aid. Article 9 of the ICC Statute governs the relationship between the Statute and the Elements. According to Article 9(1), the Elements shall assist the Court in the interpretation and application of the provisions in the Statute. Furthermore, Article 9(3) postulates that the Elements must be consistent with the Statute. Thus, the Elements of Crimes are merely an ancillary instrument that is not legally binding. Nevertheless, they have proven to be very influential in the ICC’s practice.77 Further, the international jurisprudence is an important tool for the interpretation of the ICC Statute. Beyond the ICC itself, the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda has been influential in the development of the international legal framework pertaining to gender-based violence. To a lesser extent, this also applies to the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and other international criminal courts. Accordingly, this book will refer to the jurisprudence of these courts where appropriate.

1.4.3 Feminist Approaches to International Law In dealing with gender-based violence under international criminal law, this analysis builds upon feminist approaches to international law. In their seminal 1991 article, Charlesworth, Chinkin, and Wright called attention to the necessity of applying a feminist lens to international law in order to challenge its traditional androcentric nature, which is manifested in both its organizational and normative structure.78 Deconstructing the “explicit and implicit values of the international legal system”, according to Charlesworth and Chinkin, enables the revelation of its gendered nature.79 In this regard, taking a “gender perspective”80 to international law requires an unpacking of what Chappell identified as its “gender legacies”. This phrase refers 76 See

Werle and Jeßberger 2020, marginal no 208. ibid., marginal no 236. 78 Charlesworth et al. 1991. 79 Charlesworth and Chinkin 2000, p 60. See also Charlesworth et al. 1991, p 615: “International law is a thoroughly gendered system.” 80 Odio-Benito 2005, p 166; see also Durham and O’Byrne 2010. 77 See

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to the “existing social norms, practices, and expectations”,81 which are embedded in and reinforced by international law. Among the approaches suggested in the feminist international legal discourse, particularly by Charlesworth, is the method of searching for silences and identifying gaps in the construction and application of the international legal framework.82 Similarly, Copelon advocated for “surfacing gender” by way of making visible and giving emphasis to the gender dimension of conflict-related violence.83 Taking a gender perspective or surfacing gender necessitates an analysis of the legal framework in its historical context. In this regard, it deserves emphasis that the criminalization and prosecution of gender-based violence under international law is a relatively new phenomenon. Throughout much of its history, international law has remained silent on the gendered experiences of those affected by armed conflict. The widespread occurrence of gender-based violence in macro-criminal contexts remained unaddressed. Although the legal framework has progressed, these “gender legacies” of international law continue to influence, and sometimes undermine, the application of this framework in practice. Current challenges, such as the ICC’s rather poor record of accomplishment regarding the prosecution of gender-based crimes, can only be evaluated with a view to the historical development of international criminal law and legal practice.

References Adamietz L (2011) Geschlecht als Erwartung: Das Geschlechtsdiskriminierungsverbot als Recht gegen Diskriminierung wegen der sexuellen Orientierung und der Geschlechtsidentität. Nomos, Baden-Baden Ambos K (2013a) Punishment Without a Sovereign? The Ius Puniendi Issue of International Criminal Law: A First Contribution Towards a Consistent Theory of International Criminal Law. Oxford Journal of Legal Studies 33:293–315 Ambos K (2013b) Treatise on International Criminal Law, vol 2: The Crimes and Sentencing. Oxford University Press, Oxford Ambos K (2018) Internationales Strafrecht: Strafanwendungsrecht, Völkerstrafrecht, Europäisches Strafrecht, Rechtshilfe, 5th edn. C.H. Beck, Munich American College of Obstetricians and Gynecologists (2015, reaffirmed 2017) Access to Contraception: Committee Opinion No. 615. https://www.acog.org/clinical/clinical-guidance/commit tee-opinion/articles/2015/01/access-to-contraception. Accessed 24 October 2020 American College of Obstetricians and Gynecologists (2017) Access to Emergency Contraception: Committee Opinion No. 707. https://www.acog.org/clinical/clinical-guidance/committeeopinion/articles/2017/07/access-to-emergency-contraception. Accessed 24 October 2020 Askin KD (1997) War Crimes Against Women: Prosecution in International War Crimes Tribunals. Martinus Nijhoff, The Hague

81 Chappell

2016, p 3. Charlesworth 1999, pp 381–383. 83 Copelon 1994. 82 See

References

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Baer S (2004) Justitia ohne Augenbinde? Zur Kategorie Geschlecht in der Rechtswissenschaft. In: Koreuber M, Mager U (eds) Recht und Geschlecht: Zwischen Gleichberechtigung, Gleichstellung und Differenz. Nomos, Baden-Baden, pp 19–31 Bassiouni MC (1985) The Proscribing Function of International Criminal Law in the Processes of International Protection of Human Rights. In: Vogler T (ed) Festschrift für Hans-Heinrich Jescheck zum 70. Geburtstag, Zweiter Halbband. Duncker & Humblot, Berlin, pp 1453–1475 Bock S (2010) Das Opfer vor dem Internationalen Strafgerichtshof. Duncker & Humblot, Berlin Butler J (1990) Gender Trouble: Feminism and the Subversion of Identity. Routledge, New York/London Carpenter RC (2000) Forced Maternity, Children’s Rights and the Genocide Convention: A Theoretical Analysis. Journal of Genocide Research 2:213–244 Chappell LA (2016) The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy. Oxford University Press, New York Charlesworth H (1999) Feminist Methods in International Law. The American Journal of International Law 93:379–394 Charlesworth H, Chinkin C (2000) The Boundaries of International Law: A Feminist Analysis. Manchester University Press, Manchester Charlesworth H, Chinkin C, Wright S (1991) Feminist Approaches to International Law. The American Journal of International Law 85:613–645 Copelon R (1994) Surfacing Gender: Re-Engraving Crimes Against Women in Humanitarian Law. Hastings Women’s Law Journal 5:243–266 Cottier M, Mzee S (2016) Article 8. In: Triffterer O, Ambos K (eds) Rome Statute of the International Criminal Court: A Commentary, 3rd edn. C.H. Beck, Munich Cryer R, Robinson D, Vasiliev S (2019) An Introduction to International Criminal Law and Procedure, 4th edn. Cambridge University Press, Cambridge/New York D’Costa B, Hossain S (2010) Redress for Sexual Violence Before the International Crimes Tribunal in Bangladesh: Lessons From History, and Hopes for the Future. Criminal Law Forum 21:331–359 de Beauvoir S (1949) The Second Sex. Gallimard, Paris Durham H, O’Byrne K (2010) The Dialogue of Difference: Gender Perspectives on International Humanitarian Law. International Review of the Red Cross 92:31–52 Eriksson Baaz M, Stern M (2018) Curious Erasures: The Sexual in Wartime Sexual Violence. International Feminist Journal of Politics 20:295–314 Eriksson MK (2000) Reproductive Freedom: In the Context of International Human Rights and Humanitarian Law. Martinus Nijhoff, The Hague/London Frank R (2019–2020) Miss-Conceptions: Abortifacients, Regulatory Failure, and Political Opportunity. Yale Law Journal 129:208–250 Gaggioli G (2014) Sexual Violence in Armed Conflicts: A Violation of International Humanitarian and Human Rights Law. International Review of the Red Cross 96:503–538 Goldstein AT (1993) Recognizing Forced Impregnation as a War Crime Under International Law: A Special Report of the International Program. The Center for Reproductive Law & Policy, New York Green J, Copelon R, Cotter P, Stephens B (1994) Affecting the Rules for the Prosecution of Rape and Other Gender-Based Violence Before the International Criminal Tribunal for the Former Yugoslavia: A Feminist Proposal and Critique. Hastings Women’s Law Journal 5:171–241 Grey R (2019) Prosecuting Sexual and Gender-Based Crimes at the International Criminal Court: Practice, Progress and Potential. Cambridge University Press, Cambridge Grey R (forthcoming) Reproductive Crimes in International Criminal Law. In: Rosenthal I, Oosterveld V, SáCouto S (eds) Gender and International Criminal Law. Oxford University Press, Oxford Grey R, O’Donohue J, Rosenthal I, Davis L, Llanta D (2019) Gender-Based Persecution as a Crime Against Humanity: The Road Ahead. Journal of International Criminal Justice 17:957–979

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International Committee of the Red Cross (2004) Addressing the Needs of Women Affected by Armed Conflict: An ICRC Guidance Document. https://www.icrc.org/en/doc/assets/files/other/ icrc_002_0840_women_guidance.pdf. Accessed 24 October 2020 International Law Commission (2019) Report of the International Law Commission: SeventyFirst Session: 29 April–7 June and 8 July–9 August 2019, General Assembly Official Records, Seventy-Fourth Session, Supplement no. 10 (A/74/10), Chap. IV Jescheck H-H (1952) Die Verantwortlichkeit der Staatsorgane nach Völkerstrafrecht: Eine Studie zu den Nürnberger Prozessen. Roehrscheid, Bonn Kappler K (2019) Die Verfolgungen wegen der sexuellen Orientierung und der Geschlechtsidentität als Verbrechen gegen die Menschlichkeit. Nomos, Baden-Baden Künzel A (2012) Feministische Theorien und Debatten. In: Foljanty L, Lembke U (eds) Feministische Rechtswissenschaft: Ein Studienbuch, 2nd edn. Nomos, Baden-Baden, pp 52–73 MacKinnon CA (1993) Crimes of War, Crimes of Peace. UCLA Women’s Law Journal 4:59–86 MacKinnon CA (1994) Rape, Genocide, and Women’s Human Rights. Harvard Women’s Law Journal 17:5–16 Markard N, Adamietz L (2008) Herausforderungen an eine zeitgenössische feministische Menschenrechtspolitik am Beispiel sexualisierter Kriegsgewalt. Kritische Justiz 41:257–265 McNeilly K (2019) Sex/Gender is Fluid, What now for Feminism and International Human Rights Law? A Call to Queer the Foundations. In: Rimmer SH, Ogg K (eds) Research Handbook on Feminist Engagement With International Law. Edward Elgar, Cheltenham/Northampton, pp 430– 444 Moshan BS (1998) Women, War, and Words: The Gender Component in the Permanent International Criminal Court’s Definition of Crimes Against Humanity. Fordham International Law Journal 22:154–184 Odio-Benito E (2005) Sexual Violence as a War Crime. In: Fernández Sánchez PA (ed) The New Challenges of Humanitarian Law in Armed Conflicts: In Honour of Professor Juan Antonio Carrillo-Salcedo. Martinus Nijhoff, Leiden, pp 163–173 Oosterveld V (2009) Lessons From the Special Court for Sierra Leone on the Prosecution of GenderBased Crimes. American University Journal of Gender, Social Policy & the Law 17:407–430 Oosterveld V (2011) Gender-Based Crimes Against Humanity. In: Sadat LN (ed) Forging a Convention for Crimes Against Humanity. Cambridge University Press, Cambridge, pp 78–101 Palmer A (2009) An Evolutionary Analysis of Gender-Based War Crimes and the Continued Tolerance of “Forced Marriage”. Northwestern Journal of International Human Rights 7(1):133–159 Ray AE (1997) The Shame of It: Gender-Based Terrorism in the Former Yugoslavia and the Failure of International Human Rights Law to Comprehend the Injuries. The American University Law Review 46:793–840 Rimmer SH (2010) Gender and Transitional Justice: The Women of East Timor. Routledge, London Rubio-Marín R (2012) Reparations for Conflict-Related Sexual and Reproductive Violence: A Decalogue. William & Mary Journal of Women and the Law 19:69–104 Schmidt A (2012) Geschlecht, Sexualität und Lebensweisen. In: Foljanty L, Lembke U (eds) Feministische Rechtswissenschaft: Ein Studienbuch, 2nd edn. Nomos, Baden-Baden, pp 213–234 Schwarz A (2019) Das völkerrechtliche Sexualstrafrecht: Sexualisierte und geschlechtsbezogene Gewalt vor dem Internationalen Strafgerichtshof. Duncker & Humblot, Berlin Seibert-Fohr A (2009) Prosecuting Serious Human Rights Violations. Oxford University Press, Oxford Seifert R (1993) Krieg und Vergewaltigung: Ansätze einer Analyse. In: Stiglmayer A (ed) Massenvergewaltigung: Krieg gegen die Frauen. Kore, Freiburg, pp 85–108 The Office of the Prosecutor of the International Criminal Court (2014) Policy Paper on Sexual and Gender-Based Crimes. https://www.icc-cpi.int/iccdocs/otp/OTP-Policy-Paper-on-Sexualand-Gender-Based-Crimes--June-2014.pdf. Accessed 24 October 2020 Toy-Cronin BA (2010) What is Forced Marriage? Towards a Definition of Forced Marriage as a Crime Against Humanity. Columbia Journal of Gender and Law 19:539–590

References

19

United Nations Committee on the Elimination of Discrimination Against Women (1993) General Recommendation no. 19: Violence Against Women, General Assembly Official Records, FortySeventh Session, Supplement no. 38 (A/47/38) United Nations Committee on the Elimination of Discrimination Against Women (2010) General Recommendation no. 28 on the Core Obligations of States Parties Under Article 2 of the Convention on the Elimination of All Forms of Discrimination Against Women, UN Doc. CEDAW/C/GC/28 United Nations Committee on the Elimination of Discrimination Against Women (2017) General Recommendation no. 35 on Gender-Based Violence Against Women, Updating General Recommendation no. 19, UN Doc. CEDAW/C/GC/35 United Nations Security Council (2019) Conflict-Related Sexual Violence: Report of the SecretaryGeneral, UN Doc. S/2019/280 Vest H, Sutter U (2014) Art. 264a lit. g. In: Vest H, Ziegler AR, Lindenmann J, Wehrenberg S (eds) Die völkerstrafrechtlichen Bestimmungen des StGB: Kommentar zu Art. 101, 259, 260bis und 264–264n. Dike/Nomos, Zürich/Baden-Baden Werle G, Jeßberger F (2020) Völkerstrafrecht, 5th edn. Mohr Siebeck, Tübingen Women in the Law Project (1994) No Justice, No Peace: Accountability for Rape and Gender-Based Violence in the Former Yugoslavia. Hastings Women’s Law Journal 5:91–127

Chapter 2

The Foundation: Sexualized Violence in International Law

Contents 2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 The Factual Background: Conflict-Related Sexualized Violence . . . . . . . . . . . . . . . . . . . 2.2.1 Manifestations of Sexualized Violence in Conflict Situations . . . . . . . . . . . . . . . . 2.2.2 Effects of Conflict-Related Sexualized Violence . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.3 Causes of Conflict-Related Sexualized Violence . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.4 Narratives of Conflict-Related Sexualized Violence . . . . . . . . . . . . . . . . . . . . . . . 2.2.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 International Humanitarian Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.1 Early Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.2 The Hague and Geneva Conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.3 Sexualized Violence and the Concept of “Honour” in International Humanitarian Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 International Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.1 Before World War II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.2 Trials Post-World War II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.3 The Cold War Period and Beyond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.4 Statutes and Practice of the ad hoc Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.5 The International Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.6 Other International and Hybrid Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.7 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5 International Human Rights Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.1 Human Rights Instruments Focusing on the Protection of Women . . . . . . . . . . . 2.5.2 Soft Law on Sexualized Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

22 22 24 26 27 31 34 35 35 37 39 40 40 41 41 45 50 54 60 63 63 64 65 67 67

Abstract Until the 1990s, sexualized violence was mostly conceptualized as an unfortunate but inevitable by-product of war. This narrative is visible in the postWorld War II trials, which addressed sexualized violence only in passing and mostly failed to hold perpetrators accountable for rape and other sexualized crimes. The events during the wars in the former Yugoslavia and the genocide in Rwanda helped to shift this narrative. In recent years, conflict-related sexualized violence has received much international attention, and the international criminal legal framework has made immense progress with regard to sexualized crimes and gender sensitivity more generally. Today, sexualized violence is often conceptualized as a “weapon of war”, though this description has elicited criticism as well. This chapter portrays the © t.m.c. asser press and the author 2021 T. Altunjan, Reproductive Violence and International Criminal Law, International Criminal Justice Series 29, https://doi.org/10.1007/978-94-6265-451-8_2

21

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factual background of conflict-related sexualized violence and its treatment under international humanitarian law, international criminal law, and international human rights law in a historical perspective. It traces the progressive developments of the international legal framework and illustrates persisting challenges, particularly with regard to its practical implementation. Keywords Sexualized violence · Weapon of war · International Military Tribunal · Nuremberg trial · Tokyo trial · International Law Commission · Gender · ICC · Special Court for Sierra Leone · CEDAW

2.1 Introduction The prevalence of sexualized violence in conflicts is undisputed. There is an abundance of records on the commission of rape and other kinds of sexualized violence in wars around the globe and throughout history.1 However, historical records of prosecutions and convictions based on such crimes are rare. Serious attempts to prosecute sexualized violence have only been undertaken since the 1990s.2 In her groundbreaking work on rape published in 1975, Susan Brownmiller was among the first to point out the massive scale of conflict-related sexualized violence.3 Using several case studies, she offered an early but poignant analysis of the topic, arguing that many have regarded rape in war as an unfortunate but inevitable by-product of the necessary game called war. Women, by this reasoning, are simply regrettable victims – incidental, unavoidable casualties – like civilian victims of bombing, lumped together with children, homes, personal belongings, a church, a dike, a water buffalo or next year’s crop.4

2.2 The Factual Background: Conflict-Related Sexualized Violence The historical lack of accountability for sexualized violence in wars has its roots in two interconnected presumptions. First, as Brownmiller described in the quotation

1 See

e.g. Adams 2013, p 24; Askin 1997, p 1; Askin 2003b, pp 509–511; Bensouda 2007, p 401; Brownmiller 1975, pp 31–113; Chinkin 1994, pp 327–328; Copelon 1994, pp 243–245; Gardam and Jarvis 2001, pp 27–29; Haer et al. 2015, p 610; Leatherman 2011, p 2; Stiglmayer 1993, p 109; Vest and Sutter 2014, marginal nos 414–420. 2 See generally Askin 1997, pp 12–17. 3 Brownmiller 1975, pp 31–113. 4 Ibid., p 32.

2.2 The Factual Background: Conflict-Related Sexualized Violence

23

above, rape was viewed as an inevitable, somewhat natural albeit regrettable byproduct of war undeserving of further analysis or specific recognition.5 Second, the commission of sexualized violence was seen as a private act6 committed by soldiers solely controlled by their masculinity and sexuality,7 which thus did not rise to the level of affecting the public sphere. These common “myths” had severe consequences on both individuals and societies. The systematic nature of the commission of sexualized violence in conflicts all over the world and throughout history was concealed: Due to the assumed split between the public sphere and the private sphere, sexualized violence was not seen to warrant a response through international law.8 Furthermore, the experiences and voices of victims who had suffered sexualized violence in wars were dismissed, allowing societies and the international community to remain silent in the face of such atrocities.9 Building upon Brownmiller’s groundbreaking observations on the history of rape, the commission of conflict-related sexualized violence increasingly caught public and scholarly attention. Journalistic coverage and detailed documentation of the massive scale and systematic nature of sexualized violence committed during the wars in the former Yugoslavia eventually compelled the international community to address these atrocities.10 Accordingly, in the early 1990s, a debate on the need to punish perpetrators of these crimes gained momentum.11 Today, it is widely acknowledged that sexualized violence is often committed systematically during conflicts. The following subsections analyse the manifestations, effects, and narratives of conflict-related sexualized violence.

5 See also Askin 2013, p 19; Bensouda 2007, pp 401–402; Campanaro 2001, p 2557; Copelon 1994,

p 243; Copelon 2000, p 220; Haer et al. 2015, p 610; Leatherman 2011, p 13; Seifert 1993, p 103; Stiglmayer 1993, p 109. 6 See Askin 1997, pp 215–217; Duggan et al. 2008, p 195. 7 See Copelon 2000, p 223; Jarvis and Martin Salgado 2013, p 102; Markard and Adamietz 2008, pp 257–258; Seifert 1993, p 103; Stiglmayer 1993, p 109. 8 See Markard and Adamietz 2008, pp 257–258. See also Anderson 2010, p 246. Regarding the general feminist critique of the public/private split, see Charlesworth and Chinkin 2000; Peters 2007, pp 217–221; von Arnauld 2006, pp 24–30. 9 A statement by the French prosecutor at the Nuremberg Trial of the Major War Criminals aptly illustrates the silencing of victims’ experiences. Referring to testimony of mass rape, he said: “The Tribunal will forgive me if I avoid citing the atrocious details”, International Military Tribunal, The United States of America, the French Republic, the United Kingdom of Great Britain and Northern Ireland, and the Union of Soviet Socialist Republics v Hermann Wilhelm Göring et al., Transcripts, 1945–1946, Trial of the Major War Criminals Before the International Military Tribunal (1947– 1949) (IMT Transcripts 1945–1946), vol 6, p 405. See also Bassiouni and McCormick 1996, p 4; Niarchos 1995, p 653. 10 See Askin 2004, p 16; Bassiouni and McCormick 1996, pp 1–2; Copelon 2000, p 217; Harbour 2016, p 19; Lindsey 2005, p 25; Meron 1993b, p 424. 11 See e.g. Adams 2013, pp 25–29; Askin 2003a, pp 305–306; Haer et al. 2015, pp 610–611.

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2.2.1 Manifestations of Sexualized Violence in Conflict Situations 2.2.1.1

Forms of Sexualized Violence in Conflict Situations

Sexualized violence in conflicts occurs in various forms.12 The act that is most commonly analysed in the literature and tried by international courts is rape.13 Beginning with Susan Brownmiller’s 1975 study,14 rape as a feature of war and conflict has received broad attention in the international community. However, conflict-related sexualized violence is far from limited to the act of rape. In fact, a variety of individual acts may constitute sexualized violence.15 Common examples identified in the literature are mutilations of sexual organs, forced prostitution, forced nudity, and sexual slavery.16 Nevertheless, a clear legal definition of what constitutes acts of sexual or sexualized violence does not exist in international law.17

2.2.1.2

Victims and Perpetrators of Sexualized Violence in Conflict Situations

The victims of conflict-related sexualized violence are most frequently girls and women.18 However, recent scholarship has highlighted that boys and men are targets of sexualized violence as well.19 In this regard, Charli Carpenter identified three categories of violent acts committed against men: (1) rape and sexual mutilation, (2) being forced to rape others, and (3) psychological torture as a form of secondary 12 See

generally Wood 2006.

13 The ICC Elements of Crimes define rape as the forcible or coercive “penetration, however slight,

of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body”, Article 7(1)(g)-1, no. 1; Article 8(2)(b)(xxii)-1, no. 1; Article 8(2)(e)(vi)-1, no. 1. For the definition of rape as a crime under international law, see generally Adams 2013. 14 Brownmiller 1975. 15 See Gardam and Jarvis 2001, pp 25–26; Skjelsbaek 2001, pp 212–213. 16 See Coomaraswamy 2005, pp 55–56; Leatherman 2011, pp 47–48; Seibert-Fohr 2008, p 159; The Office of the Prosecutor of the International Criminal Court 2014, p 3. 17 See Chap. 1, Sect. 1.3.2.1 and Chap. 6, Sect. 6.3.1. 18 See Chinkin 1994, p 326; Leatherman 2011, p 9; Schwarz 2019, p 64. 19 See Adams 2013, p 31; Askin 1997, p 16; Bock 2010, pp 137–138; Chinkin 2009, p 76; De Brouwer and Ruiz 2019, pp 170–175; Durham and O’Byrne 2010, pp 47–49; Eriksson Baaz and Stern 2013, pp 34–35; Grey 2019, pp 88–93; Leatherman 2011, pp 9, 46; Markard and Adamietz 2008, p 262; Myrttinen 2018, p 39; Schwarz 2019, pp 64–74; Sivakumaran 2007; United Nations Security Council 2019a, para 19; Verrall 2016, pp 313–315; Vojdik 2019, pp 97–100. Recent ICC decisions have also dealt with sexualized violence against men, see ICC, Prosecutor v Jean-Pierre Bemba Gombo, Judgment, 21 March 2016, ICC-01/05-01/08 (Bemba 2016), paras 100, 631–638; ICC, Prosecutor v Bosco Ntaganda, Judgment, 8 July 2019, ICC-01/04-02/06 (Ntaganda 2019), paras 933, 940, 942.

2.2 The Factual Background: Conflict-Related Sexualized Violence

25

victimization by way of the rape of women.20 Due to traditional constructions of masculinity, there is often an even stronger taboo and stigma attached to sexualized violence against men than against women.21 Conversely, while the perpetrators of sexualized violence are predominantly male,22 women also commit such crimes.23 Some of the most well-known examples of women committing sexualized crimes in conflict settings are the cases of Pauline Nyiramasuhuko, who was convicted for her involvement in the Rwandan genocide,24 and the abuses committed by US troops, including Lynndie England and other women, in the Abu Ghraib prison in Iraq.25 Women’s involvement in the perpetration of sexualized violence has received very little attention, both in academia and in practice. Instead, the role of women in conflicts has typically been reduced to that of victims of sexualized and other types of violence, based on a stereotypical understanding of women as inherently peaceful.26 It thus deserves emphasis that the narrative of women as “passive victims” of conflict-related (sexualized) violence is far from complete: In fact, women regularly play an active role during conflicts as well as in their aftermath.27 Sexualized violations are frequently committed by groups of perpetrators.28 In order to degrade and humiliate the victims or to affect the victims’ social groups, the violations often occur in public places.29 In many cases, perpetrators force family or community members to watch or to engage in the violent acts.30 Pertaining to the victims of sexualized violence, it is also important to note that victims are often targeted based on collective identities, i.e. their belonging to a specific group, and as embodiments of intersecting identity factors.31 When gender 20 Carpenter

2006. Similarly Schwarz 2019, p 68. Schwarz 2019, pp 65–67; Sivakumaran 2007, p 255. 22 See Askin 1997, p 16; Leatherman 2011, p 9. 23 See Askin 2003b, p 513; De Brouwer and Ruiz 2019, pp 190–196; Eriksson Baaz and Stern 2013, pp 35–36; Labenski 2019; Leatherman 2011, pp 13, 43–46. 24 ICTR, Prosecutor v Pauline Nyiramasuhuko, Arsène Shalom Ntahobali, Sylvain Nsabimana, Alphonse Nteziryayo, Joseph Kanyabashi and Élie Ndayambaje, Judgment and Sentence, 24 June 2011, ICTR-98-42-T; ICTR, Prosecutor v Pauline Nyiramasuhuko, Arsène Shalom Ntahobali, Sylvain Nsabimana, Alphonse Nteziryayo, Joseph Kanyabashi and Élie Ndayambaje, Appeals Judgment, 14 December 2015, ICTR-98-42-A; see also Drumbl 2013; Durham 2012, pp 265–266; Durham and O’Byrne 2010, pp 40–42; Labenski 2019, pp 58–60. 25 See Leatherman 2011, pp 44–46; Schwarz 2019, p 69. 26 See Labenski 2019, p 45. 27 See Schwarz 2019, p 37. 28 See Adams 2013, pp 31–33; Niarchos 1995, p 657. 29 See Boon 2000, pp 631–632; Niarchos 1995, p 657; Skjelsbaek 2001, p 222; Verrall 2016, pp 309–310. 30 See Adams 2013, pp 35–36; Bassiouni and McCormick 1996, p 20; Boon 2000, pp 631–632; Brownmiller 1975, p 40; Coomaraswamy 2005, p 55; Niarchos 1995, p 657; Verrall 2016, p 310. 31 The concept of intersectionality was introduced by Kimberle Crenshaw in her seminal article on the intersection of race and sex, see Crenshaw 1989. In the context of sexualized violence, see generally Askin 1997, pp 274–275; Markard and Adamietz 2008, p 262; Werle and Jeßberger 2020, marginal no 1062. 21 See

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intersects with other identity factors such as age, religion, ethnicity, or race, selective targeting based on the particular vulnerability of certain victims becomes visible.32

2.2.2 Effects of Conflict-Related Sexualized Violence Conflict-related sexualized violence severely affects both direct victims as well as families and communities. Direct victims often suffer from long-term physical consequences because of the crimes, such as immediate bodily injuries that may cause chronic pain and permanently affect reproductive functions, sexually transmitted diseases, and unwanted pregnancy.33 With regard to psychological consequences, the individual response to and handling of the violations depend on the nature of the crime and the victim’s individual circumstances, including, but not limited to, the societal and cultural circumstances.34 Many victims experience severe trauma,35 shame, stigmatization, and rejection from families and communities, particularly in patriarchal societies.36 Correspondingly, the effects of sexualized violence often extend to the families and larger social entities of victims.37 Regarding social consequences, it is worth pointing out that the stigmatization of victims of sexualized violence is not without alternative. This is illustrated by the case of the Yazidi women who had been abducted by fighters of the so-called “Islamic State” (ISIS).38 Contrary to strict traditions, the spiritual leader of the Yazidis, the “Baba Sheikh”, clearly stated that the victims would remain members of the Yazidi

32 See Boon 2000, p 632; Charlesworth and Chinkin 2000, pp 251–252; Grey 2019, p 51; Leatherman

2011, pp 15–16, 50–51; Skjelsbaek 2001, pp 218–223; United Nations Security Council 2018, para 12. 33 See Adams 2013, pp 39–41; Charlesworth and Chinkin 2000, pp 252–253; Chinkin 1994, p 330; Duggan et al. 2008, p 195; Greve 2008, p 33; Haer et al. 2015, p 611; Leatherman 2011, pp 47–48; Schwarz 2019, p 58. The specific effects relating to the birth of children will be explored below, see Chap. 3, Sect. 3.2.3. 34 See Schwarz 2019, pp 56–57. 35 See Bassiouni and McCormick 1996, p 3; Bock 2010, pp 136–137; Schwarz 2019, pp 56–57. 36 See Adams 2013, pp 42–44; Bensouda 2007, p 402; Chinkin 1994, p 330; Duggan et al. 2008, p 195; Eriksson Baaz and Stern 2013, p 21; Folnegovi´c-Šmalc 1993, pp 227–229; Greve 2008, p 34; Haer et al. 2015, p 611; Leatherman 2011, p 48; Niarchos 1995, p 667; United Nations Security Council 2018, para 19. 37 See Adams 2013, pp 44–45; Bensouda 2007, p 402; Chinkin 1994, p 329; Haer et al. 2015, p 611; Schwarz 2019, pp 61–62; Seibert-Fohr 2008, p 187. On indirect traumatization in general, see Bock 2010, pp 159–161. 38 See also Chap. 3, Sect. 3.2.1.10.

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community and that they should be welcomed back,39 which has helped survivors to rejoin their communities.40 Besides the immediate physical and psychological consequences, there is a risk of secondary victimization, meaning consequences stemming from the reactions to the crime, or lack thereof. This includes reactions within the victim’s social environment such as family and (religious) communities, but also by state authorities such as investigative bodies and criminal courts as well as the media.41 These reactions may prolong or aggravate the psychological trauma experienced by the victim as a result of the immediate violation.42 In the course of criminal investigations and trials, victims are repeatedly questioned by different authorities. This not only confronts them with the violations once more, but may also create the impression of not being considered credible, which may result in re-traumatization.43 It is therefore important that international criminal trials dealing with sexualized crimes be conducted with sensitivity towards victims’ concerns.44 At the International Criminal Court, the Office of the Prosecutor made important progress in this regard by adopting the Policy Paper on Sexual and Gender-Based Crimes in 2014, which elaborates on measures aimed at conducting gender-sensitive investigations and prosecutions.45

2.2.3 Causes of Conflict-Related Sexualized Violence Conflict situations are often linked to an overall collapse of public order and security as well as a lack of punishment. Hence, violent conflicts offer an opportunity to commit sexualized violence with a low probability of individual consequences for the perpetrator.46 This consideration also applies to other types of crimes such as property-related offenses. Studies indicate that this “opportunity argument” is a major cause of sexualized violence in wars, though not the sole explanation.47 In the 39 See

Marczak 2018, pp 149–150; United Nations Human Rights Council 2016, para 79. After some confusion, however, it was later clarified that this policy would not cover children born of rape, who would consequently not be welcomed into the community, see Kajjo, Yazidis Divided Over Children Born of IS Rape, VOA, 29 April 2019, https://www.voanews.com/a/yazidis-dividedover-children-born-of-islamic-state-rape/4896530.html (accessed 24 October 2020). 40 See George, Yazidi Women Welcomed Back to the Faith: Religious Leaders Break With Tradition, Letting Women and Girls Rejoin the Yazidi Community After Surviving Abduction, Forced Conversion and Rape, UNHCR Tracks, 15 June 2015, https://tracks.unhcr.org/2015/06/yazidi-women-wel comed-back-to-the-faith/ (accessed 24 October 2020). 41 See Bock 2010, p 70; Schwarz 2019, pp 58–61. 42 See Bock 2010, p 70. 43 See ibid., pp 72–73. 44 See Schwarz 2019, pp 59–61. 45 The Office of the Prosecutor of the International Criminal Court 2014. See also Chappell 2016, pp 124–126; Oosterveld 2018, pp 453–456. 46 See Coomaraswamy 2005, p 55. 47 See Haer et al. 2015; see also Wood 2006, pp 321–323.

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aggressive environment of armed conflicts and often due to traumatic experiences, potential perpetrators’ inhibitions may be lowered. Violence (of any kind) is often encouraged by peers and superiors alike. Nevertheless, it has also been pointed out that not all armed groups resort to sexualized violence;48 in this regard, significant variations exist between conflict situations.49 Thus, factors beyond mere opportunity must exist. From the perpetrators’ perspective, the commission of sexualized violence may serve various purposes, depending on the individual circumstances of the conflict. Nevertheless, it is possible to identify some common motives,50 which are often interrelated and appear in combination.51 One may categorize them as internal and external motives. External motives concern the evocation of certain effects on individual victims or their respective group. Internal motives, in contrast, relate to the perpetrators’ state of mind or the internal affairs of the perpetrators’ group.

2.2.3.1

Internal Motives

One of the most common assertions pertaining to the causes of rape in war is that male fighters are simply controlled by their (hetero)sexual urge.52 As part of an army or a militia group, an environment with traditionally few women and no access to consensual heterosexual relations, soldiers and militia fighters, according to this notion, rape women as a means to satisfy their sexual needs. Maria Eriksson Baaz and Maria Stern labelled this narrative the “sexed story” or the “biological urge/substitution theory”.53 The essentializing and deterministic notion of male heterosexual needs as a natural force is closely connected with the above-mentioned traditional view of rape as an unavoidable by-product of war.54 However, sexuality and sexual needs as such do not explain the occurrence of sexualized violence, neither in conflicts nor in times of peace.55 This explanation does not account for the fact that women are also perpetrators of sexualized violence. Similarly, the argument would entail that armed groups with a relatively high number of women would generally commit fewer sexualized crimes, as there would be lesser incentive.56 However, the case of the Revolutionary United Front in Sierra Leone, which included many women

48 See

Haer et al. 2015, p 614; Nordås 2013, p 2; Wood 2006, pp 307–308. Wood 2006, pp 308–318. 50 See Stiglmayer 1993, pp 109–110. 51 See Haer et al. 2015, p 616; Wood 2006, p 330. 52 See e.g. Seifert 1993, p 86. 53 Eriksson Baaz and Stern 2013, p 17. 54 See Eriksson Baaz and Stern 2013, p 19; Steinl 2018. 55 See Seifert 1993, p 86; Stiglmayer 1993, p 109; Vest and Sutter 2014, marginal nos 421–422. 56 See Nordås 2013, p 2. 49 See

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and was notorious for the commission of sexualized violence, illustrates that this is untrue.57 As pointed out above, acts of sexualized violence are not sexual acts, but aggressive acts committed in a sexualized manner.58 They are often committed out of frustration, a need for revenge and a desire to establish superiority or dominance over others.59 Furthermore, an important motive may be a desire to integrate into a military structure in which prevailing traditional notions of heterosexual masculinity entail the degradation of women and the forceful satisfaction of culturally presumed male heterosexual needs.60 Feminist research has developed the concept of militarized masculinities to describe how military structures produce a desirable type of masculinity, including a disposition to violence, obedience, and hierarchy, whereas females and femininity are associated with a need for protection.61 As this explanation for the occurrence of sexualized violence in war revolves around socially produced identities instead of presumed biological realities, Eriksson Baaz and Stern labelled it the “gendered story”.62 Additionally, several reasons may exist for perpetrating or encouraging sexualized violence within the structure of an armed group. Some groups use it as a method of providing an incentive for the combatants, energizing them and thus fuelling the machinery of war.63 For example, granting access to sexual slaves may constitute a means for inciting and rewarding fighters.64 This motive of reward can be traced back to ancient times, where warriors were granted access to women and the “privilege” to rape as a reward for successful conquest. In fact, conquering groups were often seen to be entitled to rape women and pillage possessions of the conquered groups.65 Furthermore, rape in wars sometimes serves as an instrument to generate social cohesion within an armed group. A cross-national study has shown that rape, specifically gang rape, is more likely to occur in conflicts where groups use forcible means of recruiting combatants.66 When groups recruit new fighters through abduction or other coercive means, they need to ensure that group members form loyalty and social ties between one another in order to create a coherent and effective military force.67 The commission of (gang) rape has indeed been shown to have a positive 57 See

Cohen 2013, p 475; Nordås 2013, p 2. Chap. 1, Sect. 1.3.2.1. See also Niarchos 1995, p 650. 59 See Brownmiller 1975, p 49; Seifert 1993, p 87. 60 See Eriksson Baaz and Stern 2009, p 514; Grey 2019, p 57; Vojdik 2019, pp 112–113. See also Haer et al. 2015, pp 615–616; Maxwell 2010. 61 Eriksson Baaz and Stern 2013, p 20. 62 Ibid., p 19. See also Steinl 2018; Vojdik 2019, p 113. 63 See Askin 2003b, pp 511–512; Bensouda 2007, p 402; Bock 2010, p 138; Seibert-Fohr 2008, p 160; United Nations Security Council 2017, para 8; Werle and Jeßberger 2020, marginal no 1063. 64 See Askin 2003b, pp 511–512; Charlesworth and Chinkin 2000, p 253; United Nations Security Council 2019a, para 14. 65 See Askin 1997, p 27; Askin 2013, p 21; Bensouda 2007, p 401; Brownmiller 1975, pp 33–35. 66 Cohen 2013. 67 See ibid., p 464. 58 See

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effect on a group’s social cohesion, because it evokes a feeling of mutual power over others.68 Similarly, committing sexualized violence may serve to communicate messages between the members of a respective group in order to prove masculinity or a superior status.69

2.2.3.2

External Motives

Besides constituting a means of internal communication between group members, acts of sexualized violence may also communicate a message to the victims’ group. Particularly in societies that place high importance on women’s honour and purity, and regard women as the “property” of men, sexualized violence against women is often designed and experienced as an indirect attack against men.70 Through committing sexualized violence against women, perpetrators may intend to degrade and dominate the men in the victims’ family environment, particularly husbands, fathers, or brothers, who they consider enemies and who—according to traditional gender roles—are responsible for the women’s protection.71 Similarly, sexualized violence against men serves as a tool to degrade and to attack the masculine identity by supposedly “feminizing” the victim.72 On the individual level, sexualized violations aim to humiliate, degrade, and subjugate the victim.73 They communicate a message of the perpetrator’s ultimate power by invading a victim’s most private sphere, often in front of other perpetrators, the victim’s family, or other members of the victimized group.74 Furthermore, sexualized violence has been committed in some conflicts for ideological reasons, as an instrument of genocide or a policy of “ethnic cleansing”.75 Several tactics may be at work here, for example the intimidation of victims in order to dispel them from a certain area, or the infliction of damage—physically or psychologically—on women’s reproductive capabilities. These issues were brought to international attention particularly in the course of the Yugoslav wars; they will be further 68 See Brownmiller 1975, pp 187–194; Cohen 2013, pp 463–464. See also Eriksson Baaz and Stern

2013, p 20. 69 See Birckenbach 1993, p 241; Seifert 1993, pp 87–88; Verrall 2016, p 310; Vest and Sutter 2014,

marginal no 425. Askin 2013, p 21; Brownmiller 1975, pp 38–40; Charlesworth and Chinkin 2000, p 254; Markard and Adamietz 2008, p 262; Odio-Benito 2005, p 164. 71 See Brownmiller 1975, p 38; Chinkin 1994, p 328; Eriksson Baaz and Stern 2013, p 21; Greve 2008, p 29; Grey 2019, p 56; Markard and Adamietz 2008, pp 261–262; Seifert 1993, pp 91–92; Vest and Sutter 2014, marginal no 427. See also Schwarz 2019, pp 54–55. 72 See De Brouwer and Ruiz 2019, p 176; Grey 2019, pp 55–56; Vojdik 2019, p 114. 73 See Bock 2010, p 134; Odio-Benito 2005, p 166; Seibert-Fohr 2008, p 160; Seifert 1993, p 87; Verrall 2016, pp 311–312; Vest and Sutter 2014, marginal no 422. 74 See Bassiouni and McCormick 1996, pp 16, 20; Folnegovi´ c-Šmalc 1993, p 224. 75 See Allen 1996; Bassiouni and McCormick 1996, pp 5–6; Chinkin 1994, p 329; MacKinnon 1994; Niarchos 1995, p 658; Russell-Brown 2003; Sharlach 2000; Stiglmayer 1993, pp 110–111; Verrall 2016, pp 310–311; Werle and Jeßberger 2020, marginal no 1063. 70 See

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explored below.76 Lastly, the commission of sexualized violence may constitute a means of punishment or torture, for example in order to extract information.77

2.2.4 Narratives of Conflict-Related Sexualized Violence As pointed out above, conflict-related sexualized violence evolved from being conceptualized as an unfortunate but inevitable by-product to a systematic tool or strategy of war. These narratives as to the nature and causes of conflict-related sexualized violence influence the way the international community addresses these atrocities and thus deserves closer examination.

2.2.4.1

Sexualized Violence as Part of a Continuum of Gender-Based Violence

Common to all possible motives outlined in the previous subsection is the assertion of power over others. As an instrument of humiliation and degradation, both directly and indirectly, the commission of sexualized violence is closely linked with a demonstration of power,78 which operates on a playing field of traditional gender roles and conceptualizations of “ideal” femininity and masculinity.79 It is imperative to acknowledge that sexualized violence during wartime is part of a “continuum of violence” that begins before the outbreak of an armed conflict and outlasts its conclusion.80 Evidently, sexualized violence is not unique to conflicts, as already acknowledged by Brownmiller in 1975: “Rape in war is a familiar act with a familiar excuse.”81 An analysis of conflict-related sexualized violence, as a sub-category of gender-based violence, must therefore take into consideration the broader dynamics of gender inequality during war and peace in all societies, not least

76 See

Chap. 4, Sect. 4.2. Carpenter 2010, p 21; Coomaraswamy 2005, p 54; Durham and O’Byrne 2010, p 39; Verrall 2016, pp 308–309; Wood 2006, p 327. See also ICTY, Prosecutor v Zejnil Delali´c, Zdravko Muci´c, ˇ Hazim Deli´c and Esad Landžo, Judgment, 16 November 1998, IT-96-21-T (Celebi´ ci 1998), paras 475–497. 78 See Askin 1997, p 16; Birckenbach 1993, pp 241–242; Folnegovi´ c-Šmalc 1993, p 224; Gaggioli 2014, p 504; Seifert 1993, p 87; Stiglmayer 1993, p 109. See also Skjelsbaek 2001, pp 224–226. 79 See Eriksson Baaz and Stern 2010, pp 41–50. 80 See Cockburn 2004; Greve 2008, p 28; Markard and Adamietz 2008, p 261; Steinl 2018; Werle and Jeßberger 2020, marginal no 1062; Zwingel 2002, p 178. But see also Anderson 2010, p 257, arguing that certain types of conflict-related sexualized and gender-based violence such as forced impregnations in “rape camps” and the deliberate infection of women with HIV are not part of a continuum but rather a means of war and thus a security issue instead of just a gender issue. Such an understanding, however, appears to reproduce the problematic public/private dichotomy. 81 Brownmiller 1975, p 32. 77 See

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the widespread reality of intimate partner violence.82 While the horrors of sexualized crimes are often amplified in wartime, an underlying cause of such violence, both during conflicts and in times of peace, may be identified as structural gender inequality83 and a gendered hierarchy of power.84

2.2.4.2

Systematic and Strategic Nature of Conflict-Related Sexualized Violence: The “Weapon of War” Narrative

When journalistic coverage brought to light the massive scale of sexualized violence in the conflicts in Yugoslavia in the early 1990s,85 scholars began to analyse the strategic element to the commission of such crimes in the context of armed conflicts. Far from being solely a by-product, many authors asserted, in varying terms, that sexualized violence is often employed as a tactic, tool, method, instrument, or “weapon” of war.86 The term “weapon” is used idiomatically, in a non-technical way.87 It underlines that sexualized violence is often committed in a deliberate, calculated, and systematic way with the objective of furthering a military agenda and achieving strategic goals such as terrorizing, humiliating, and destroying the enemy.88 Increasingly, sexualized violence is also surfacing as a tactic of terrorism used by extremist groups.89 When committed in such strategic ways, the perpetration of sexualized violence is not only a serious human rights violation and an

82 See

De Brouwer et al. 2013, p 4. See also Maxwell 2010, addressing the broader issue of militarized masculinity as an underlying cause of sexualized violence committed by soldiers. Similarly Niarchos 1995, pp 668–671. See also Rose 2015, conceptualizing intimate partner violence within the framework of crimes against humanity. 83 See Eriksson Baaz and Stern 2010, p 42; Leatherman 2011, pp 3–4; United Nations Security Council 2019a, para 2. See also Schwarz 2019, p 63. 84 See also MacKinnon 1994, p 8, stating that “these rapes [committed in the Yugoslav wars against Bosnian and Croatian women] are to everyday rape what the Holocaust was to everyday antisemitism”. However, societies with higher levels of gender inequality are not necessarily more prone to sexual violence in conflicts, see Wood 2006, p 325. 85 Reports indicate the commission of up to 60,000 acts of rape, see Ellis 2007, p 226. 86 See Askin 2003b, p 511; Askin 2013, p 19; Bassiouni and McCormick 1996, p 15; Bensouda 2007, p 402; Coomaraswamy 2005, p 54; De Brouwer et al. 2013, pp 3–4; Ellis 2007, p 225; Leatherman 2011, p 4; MacKinnon 1994, p 8; Moshan 1998, p 158; Niarchos 1995, p 659; United Nations Secretary-General, Secretary-General’s Message on the International Day for the Elimination of Sexual Violence in Conflict, 18 June 2017, https://www.un.org/sg/en/content/sg/statement/2017-0618/secretary-generals-message-international-day-elimination-sexual (accessed 24 October 2020); United Nations Security Council 2008, para 1; United Nations Security Council 2016, paras 8, 18; United Nations Security Council 2019a, para 10. 87 See Anderson 2010, p 247; Gaggioli 2014, p 519. 88 See Skjelsbaek 2001, p 213. 89 See United Nations Secretary-General, above n 86; United Nations Security Council 2016, paras 8, 18; United Nations Security Council 2019a, paras 8–30. Regarding the case of ISIS, see Ahram 2015.

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international crime; it may also constitute a threat to the peace and security of the international community,90 as stated in the groundbreaking United Nations Security Council Resolution 1820 of 2008.91 This development builds upon the earlier Resolution 1325 of 2000, which was the first UN Security Council Resolution adopted on “Women, Peace and Security” and which recognized for the first time the particular effects of armed conflicts on women.92 To date, ten resolutions have been adopted within the “Women, Peace and Security Agenda”.93 Following Resolution 1820 of 2009, a Special Representative of the SecretaryGeneral for Sexual Violence in Armed Conflict was appointed to coordinate and strengthen UN efforts to address conflict-related sexual violence.94 The post is currently held by Pramila Patten, who introduced a three-pillar strategy: “(a) converting cultures of impunity into cultures of deterrence; (b) addressing structural gender-based inequality as the root cause and invisible driver of sexual violence in times of war and peace; and (c) fostering national ownership and leadership for a sustainable, survivor-centred response that empowers civil society and women’s rights defenders”.95 The United Nations Security Council has consistently condemned sexualized violence in conflicts and called upon all parties to refrain from its commission, which in some situations had “become systematic and widespread, reaching appalling levels of brutality.”96 The notion of rape as a “weapon of war”, though dominant in the current discourse on sexualized violence, is not without criticism. Eriksson Baaz and Stern, for example, asserted that understanding conflict-related sexualized violence as a strategic means by rational actors inadequately universalizes the complexities of conflict situations. They concluded that while sexualized violence may serve as a strategic tool in certain conflicts, the overwhelming dominance of the “rape as a weapon of war” narrative in academia and policy is problematic because it is

90 See

Anderson 2010, p 247; Durham 2012, p 264. Nations Security Council 2008. 92 United Nations Security Council 2000. 93 Namely ibid.; United Nations Security Council 2008; United Nations Security Council 2009a; United Nations Security Council 2009b; United Nations Security Council 2010; United Nations Security Council 2013a; United Nations Security Council 2013b; United Nations Security Council 2015; United Nations Security Council 2019b; United Nations Security Council 2019c. For an overview, see Women’s International League for Peace and Freedom, The Resolutions, https:// www.peacewomen.org/resolutions-texts-and-translations (accessed 24 October 2020). 94 United Nations Security Council 2009a, para 4. 95 United Nations Security Council 2018, para 22. 96 United Nations Security Council 2019b, para 5. It is worth noting, however, that this resolution was significantly watered down before its adoption, because the United States threatened to veto it. For example, the original draft included the establishment of a United Nations monitoring body, which was supposed to report on conflict-related sexual violence, see Gramer and Lynch, How a U.N. Bid to Prevent Sexual Violence Turned Into a Spat Over Abortion, Foreign Policy, 23 April 2019, https://foreignpolicy.com/2019/04/23/united-nations-bid-end-sexual-violence-rape-supportsurvivors-spat-trump-administration-sexual-reproductive-health-dispute-abortion-internal-statedepartment-cable/ (accessed 24 October 2020). See also Chap. 3, Sect. 3.4.1.4. 91 United

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overly simplified and incomplete.97 To illustrate this, they challenged the dominating “weapon of war” narrative concerning the case of the Democratic Republic of the Congo (DRC), arguing that although sexualized violence is certainly committed in order to degrade and humiliate, there is little support for the notion of a corresponding military strategy.98 They also pointed out that the overwhelming attention to sexualized violence in the DRC renders invisible male rape victims as well as other forms of violence.99 Furthermore, Eriksson Baaz and Stern illustrated how the “weapon of war” narrative perpetuates the problematic war/peace dichotomy that casts wartime rape as exceptional or strategic and, consequently, rape in times of peace as a somewhat normal or non-political act.100 In fact, the international community’s focus on conflict-related sexualized violence committed by men against women has increasingly been challenged.101 Though the attention afforded to such violence has certainly contributed to overcoming the stereotypical notion of rape as an inevitable by-product of war, negative effects are visible as well. Namely, the general focus on conflict-related sexualized violence has reinforced traditional gender stereotypes, overshadowing the active participation of women in conflicts as well as the victimization of men.102 Further, the “weapon of war” narrative is based on the perception of mass-scale sexualized violence committed in a strategic manner, which runs the risk of creating numerical thresholds and policy requirements.103 Thus, while the “weapon of war” narrative has certainly helped to transform the conceptualization of rape from an inevitable byproduct of war to a serious crime against international law, it also entails the danger of creating oversimplified and restrictive perceptions of conflict-related sexualized violence.

2.2.5 Summary Sexualized violence has been a feature of conflicts for centuries. While oversimplified narratives persist, the international community’s conceptual understanding of conflict-related sexualized violence has certainly improved. Far from being labelled a by-product of war, conflict-related sexualized violence receives considerable attention by the media, policy makers, and activists. Clear demands for the prosecution and punishment of sexualized violence are being voiced during and after conflicts around the world. Nevertheless, these developments have not yet fully translated into international legal practice. The following three sections describe the 97 Eriksson

Baaz and Stern 2013. See also Steinl 2018. Eriksson Baaz and Stern 2010. 99 See ibid., pp 12–13. 100 Eriksson Baaz and Stern 2018. 101 See generally and with further references Henry 2014. 102 See Labenski 2019, pp 49–50. See also Engle 2005; Grey 2019, pp 87–88. 103 Dowds 2020, pp 124–126. 98 See

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development of an international legal regime relating to conflict-related sexualized violence.

2.3 International Humanitarian Law International humanitarian law today encompasses a range of provisions specifically directed towards the protection of women.104 Explicit references to sexualized violence, however, are rare.105 This section examines the development of international humanitarian law pertaining to the prohibition of sexualized violence.

2.3.1 Early Developments The general acknowledgement that the acceptable means and methods of warfare are somewhat restricted dates back to ancient times.106 The Old Testament, for example, prohibited the killing of prisoners of war and required their release after the war had ended.107 There were only few restrictions, however, concerning the treatment of a conquered population, combatants and non-combatants alike. Women were seen as “legitimate booty”108 for the conquering soldiers.109 This correlates with their overall status. In peace as in wars, women did not enjoy rights; instead, they were considered as the property of men, i.e. their fathers, brothers, or husbands.110 Thus, women—like property—could be conquered through war and were at the disposition of the prevailing enemy warriors.111 The laws of war evolved in the later Middle Ages. This process entailed the growing recognition that some restraint was required even in waging “just” wars.112 Pertaining to the act of rape, some early records are noteworthy: During the Hundred Years’ War between England and France, the Ordinances of War made by Richard II at Durham in 1385 and by Henry V at Mantes in 1419 prohibited the rape of women,

104 See

Gardam and Jarvis 2001, pp 62–68. Möller 2001, p 284. 106 See Biehler 2015, pp 29–30; Green 2008, pp 26–29. 107 See Werle and Jeßberger 2020, marginal no 1138. 108 Brownmiller 1975, p 33. 109 See Askin 1997, pp 20–21, 27, though also citing some dissenting voices at pp 22–23; Bensouda 2007, p 401; Schwarz 2019, pp 75–76. 110 See Askin 2013, p 21. 111 See Askin 1997, pp 20–21; De Brouwer 2005, p 4; Niarchos 1995, pp 659–660; Vest and Sutter 2014, marginal no 426. 112 See Askin 1997, p 25; Askin 2013, p 22; Biehler 2015, pp 30–32; Werle and Jeßberger 2020, marginal nos 1139–1142. 105 See

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punishable by hanging.113 However, enforcing these proscriptions proved difficult.114 Interestingly, the earliest known instance of an international trial relating to violations of the rules of war included a conviction of rape. In 1474, an early antecedent of an international tribunal consisting of 28 judges from different countries sentenced Sir Peter von Hagenbach to death for crimes committed during his occupation of the city of Breisach, including rapes committed by his subordinates.115 However, Hagenbach’s conviction rested entirely on the absence of a declaration of war, thus rendering the war “unjust”. Had he declared war, the violent acts, including rape, would have been considered legal.116 In the 15th and 16th century, two noteworthy scholars called for a criminalization of rape in wars. Alberico Gentili advocated for a humane treatment of civilians as well as combatants, though he considered killings lawful, and a prohibition of rape in war as in peace.117 Hugo Grotius, often considered a founding father of modern international law,118 argued that under existing laws of war, rape was punishable.119 Beginning in the 17th century, some restrictions pertaining to the treatment of women in wars began to appear in codified legal instruments.120 King Gustavus II Adolphus of Sweden issued his Articles of War in 1621, which included a prohibition concerning the abuse of women during war, punishable by death.121 The Treaty of Amity and Commerce between the United States and Prussia of 1785 prohibited the molestation of women and children, and Order No. 20 of 1847, supplementing the Rules and Articles of War issued by the United States, contained an explicit prohibition of rape.122 The turning point lay in the promulgation of the Lieber Code in 1863, an early codification of the laws of land warfare for the purposes of the United States army.123 In its Article 44, the Lieber Code prohibited wartime rape and made it punishable by death.124 It thereby set the scene for the further development of international humanitarian law through the Conventions of The Hague and Geneva, which offer a minimum of protection against conflict-related sexualized violations to women.125 113 See

Bassiouni 2011, p 426; Meron 1993a, pp 92, 143–144; Möller 2001, p 281; Niarchos 1995, p 661. 114 See Meron 1993a, p 111; Niarchos 1995, p 661. 115 See Askin 2003a, p 299; Durham 2012, p 257; Schwarzenberger 1968, pp 462–466. 116 See Askin 1997, p 29; De Brouwer 2005, p 4; Kappler 2019, pp 125–126; Schwarz 2019, p 91. 117 See Askin 1997, pp 26–27; Askin 2003a, p 299; Biehler 2015, pp 36–37; Greve 2008, p 157; Meron 1993a, p 112. 118 See Green 2008, p 35. 119 See Askin 1997, p 30; Biehler 2015, p 37; Greve 2008, p 157; Niarchos 1995, p 661; Vöneky 2002, p 450. 120 See Askin 1997, p 34; De Brouwer 2005, p 5. 121 See Schwarz 2019, p 91. 122 See Askin 1997, p 34; Bassiouni 2011, p 427; Gardam and Jarvis 2001, p 56. 123 See Askin 2003a, p 299; Bassiouni 2011, p 427; Möller 2001, p 282. See generally Vöneky 2002. 124 See Askin 2003a, p 299; Niarchos 1995, pp 662, 672. 125 See Möller 2001, p 282.

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2.3.2 The Hague and Geneva Conventions The various conventions adopted at the two peace conferences held in The Hague in 1899 and 1907, known as the Hague Conventions, contain restrictions pertaining to the accepted means and methods of warfare. They do not explicitly proscribe sexualized violence. However, as acknowledged in legal scholarship, the reference to “family honour” in Article 46 of the Regulations Respecting the Laws and Customs of War on Land of 1907126 must be understood broadly; it thus implicitly prohibits rape and other kinds of sexualized violence.127 However, this interpretation has played little role in practice.128 In any case, the Hague Regulations do not establish individual criminal responsibility.129 The state parties are not obligated to sanction individuals violating the provision. The four Geneva Conventions of 1949, supplemented by two Additional Protocols of 1977, originate from the Geneva Convention of 1864, which was updated and extended several times, and were agreed upon in their current form against the background of the horrors of World War II. The first three Geneva Conventions of 1949130 do not apply to civilians and contain no explicit reference to sexualized violence.131 Geneva Convention IV,132 however, protects certain civilians affected by armed conflicts.133 Its Article 27(2) states that “women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution,

126 Regulations

Concerning the Laws and Customs of War on Land, Annex to Convention (IV) Respecting the Laws and Customs of War on Land, opened for signature 18 October 1907 (entered into force 26 January 1910), Article 46: “Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated.” 127 See Askin 1997, p 40; Askin 2003a, p 300; Bassiouni 2011, p 428; Durham 2012, p 258; Meron 1993b, p 425; Möller 2001, p 282; Schwarz 2019, p 92. 128 See Meron 1993b, p 425. See also Meron 1993a, pp 112–113, labelling the protection against rape in the Regulations as “indirect and partial”. 129 See Schwarz 2019, p 92. 130 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950); Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950); Convention (III) Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950). 131 See Schwarz 2019, pp 94–95. 132 Convention (IV) Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (Geneva Convention IV). 133 Ibid., Article 4: “Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.” See also Green 2008, pp 258–262; Schwarz 2019, p 97.

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or any form of indecent assault”. Similarly, Additional Protocol I of 1977134 affirms in Article 76(1) that “women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault”. The purpose of this provision was to extend protection to all women affected by armed conflicts.135 Despite the rather vague formulation (“shall be protected”) and the limitation to women,136 the provisions have been interpreted to contain a prohibition of sexualized violence in wars,137 marking a significant step forward in the development of international humanitarian law in this regard.138 Confirming this interpretation in clearer terms, Article 75(2)(b) of Additional Protocol I states with regard to fundamental guarantees in international armed conflicts: The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents: […] outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault.

This provision applies to both men and women. Similarly, concerning noninternational armed conflicts, Article 4(2)(e) of Additional Protocol II139 prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault”. It is noteworthy that these provisions are almost congruent, but that Article 4(2)(e) of Additional Protocol II additionally lists rape. Despite these more progressive and explicit wordings, the above-mentioned provisions are directed at states and do not establish individual criminal responsibility.140 In this regard, it must also be noted that the 1949 Geneva Conventions do not explicitly list rape or other types of sexualized violence in their common Article 3, which sets minimum restrictions for non-international armed conflicts.141 Furthermore, Article 147 of Geneva Convention IV, which lists so-called grave breaches that obligate the state parties to either administer penal sanctions or extradite (“aut dedere aut iudicare”) pursuant to Article 146, also contains no explicit mention of rape.142 134 Protocol

(I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature 12 December 1977, 1125 UNTS 3 (entered into force 7 December 1978). 135 See Adams 2013, p 114; International Committee of the Red Cross 1987, marginal nos 3147, 3151. 136 See also Grey 2019, p 74. 137 See Adams 2013, p 105; International Committee of the Red Cross 1958, p 206; Odio-Benito 2005, p 165. 138 See Durham 2012, p 259. 139 Protocol (II) Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature 12 December 1977, 1125 UNTS 609 (entered into force 7 December 1978). 140 See Schwarz 2019, p 95. 141 See Charlesworth and Chinkin 2000, p 316; Möller 2001, p 283. 142 See Charlesworth and Chinkin 2000, pp 315–316; Gardam and Jarvis 2001, pp 73–74; Niarchos 1995, pp 674–675; Schwarz 2019, pp 97–98.

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This can be seen as the most serious shortcoming of international humanitarian law concerning the protection from sexualized violence in wars, because it illustrates that such violations, in principle, were not considered sufficiently grave to warrant individual criminal responsibility.143 Nevertheless, the terms used in both Articles are broad enough to allow for an interpretation that includes sexualized violence. In Common Article 3, rape and other forms of sexualized violence constitute a form of “outrages upon personal dignity, in particular humiliating and degrading treatment”.144 With regard to Article 147, sexualized violence constitutes a form of “inhuman treatment”, “wilfully causing great suffering or serious injury to body or health”, and under certain circumstances torture.145 Thus, despite the lack of an explicit provision, states are obligated under Geneva Convention IV to sanction those types of sexualized violence that amount to such grave breaches.146

2.3.3 Sexualized Violence and the Concept of “Honour” in International Humanitarian Law Historically, prohibitions of rape in international humanitarian law have been linked to a violation of “honour”. This linkage appears, for example, in Article 46 of the 1907 Regulations Respecting the Laws and Customs of War on Land and in Article 27(2) of the 1949 Geneva Convention IV, building upon previous instruments such as the Declaration of Brussels (1874) and the Oxford Manual (1880).147 Although some have argued that the use of outdated language must be understood in light of the temporal background,148 there are several pitfalls to the prohibition of sexualized violence under a notion of protecting “honour”. “Honour” is commonly defined as high respect or great esteem, but with regard to women, it is also used to refer to chastity.149 The categorization of rape as a violation of “honour” wrongly focuses on the sexualized means through which the crimes are executed, 143 See

Schadendorf 2013; Schwarz 2019, p 98. Conventions I–IV, above n 130 and n 132, common Article 3(1)(c), see Adams 2013, pp 110–111; Bassiouni 2011, pp 436–437; Biehler 2015, pp 89–91; Gaggioli 2014, pp 512–513; Peters 2007, p 257; Schwarz 2019, p 97. 145 See Adams 2013, pp 108–109; Bassiouni 2011, pp 429–432; Biehler 2015, pp 85–87; Copelon 1994, pp 249–252; Durham 2005, p 98; Gardam and Jarvis 2001, p 201; Meron 1993b, p 426; Peters ˇ 2007, p 258; Schwarz 2019, pp 98–99. For rape as torture, see particularly Celebi´ ci 1998, above n 77, paras 475–497. 146 See Adams 2013, p 114. 147 See Askin 1997, p 34; Biehler 2015, p 50. 148 See Durham 2005, p 98; Gaggioli 2014, p 512; Lindsey 2005, pp 32–33. See also Peters 2007, pp 257–258, using the “updated” term dignity (“Würde”). 149 Lexico Oxford Dictionary, Honor, https://www.lexico.com/en/definition/honor (accessed 24 October 2020). See also Gardam and Charlesworth 2000, p 159; Gardam and Jarvis 2001, pp 64, 97. 144 Geneva

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thus concealing their violent nature and seriousness.150 Furthermore, the linkage to “honour” reinforces the stigma that sexualized violence “dishonours” and disgraces the female victims as well as their husbands and families, portraying women as the property of others.151 Linking sexualized violence to a violation of “honour” conceals that these crimes, in fact, violate the victims’ bodily integrity and sexual autonomy.152 Despite the fact that the reference to “honour” in the Hague Regulations and Geneva Convention IV still exists, international law has progressed.153 Article 76 of the 1977 Additional Protocol I to the Geneva Conventions closely follows Article 27 of Geneva Convention IV, but it does not refer to “honour”.154 Similarly, the ICC Statute no longer links sexualized violence to violations of “honour”.155

2.3.4 Summary In summary, while present-day international humanitarian law lays down the obligation to protect women from rape and other kinds of sexualized violence in wars, it does not explicitly prohibit it and does not explicitly obligate states to administer penal sanctions. Although several broader provisions are widely interpreted to prohibit sexualized violence in wars implicitly, the prevalence of such violence illustrates that an explicit prohibition, the explicit categorization of sexualized violence as a “grave breach”, and the classification as an attack on the victim’s bodily integrity and sexual autonomy instead of “honour” is long overdue.156

2.4 International Criminal Law The last section depicted how international humanitarian law has addressed rape and other kinds of sexualized violence in conflicts. Although the recognition of wartime rape as a prohibited act traces back centuries, only a very limited number of trials took place until the end of the twentieth century. This section gives a brief overview 150 See Adams 2013, p 102; Askin 2003a, p 304; Copelon 1994, p 249; Copelon 2000, p 221; Grewal

2010, p 63; Möller 2001, p 284; Niarchos 1995, p 674; Schwarz 2019, p 93; Seibert-Fohr 2008, p 163. 151 See Charlesworth and Chinkin 2000, p 314; Copelon 2000, p 221; Maxwell 2010, pp 109–110; Niarchos 1995, p 674; Schwarz 2019, p 93. 152 See Chappell 2016, p 38; Laverty 2018; Lembke and Foljanty 2012, p 271; Schwarz 2019, pp 93–94; Werle and Jeßberger 2020, marginal no 1281. 153 See Durham and O’Byrne 2010, pp 34–36. 154 See Peters 2007, p 257. 155 See Moshan 1998, p 180. 156 See also Schadendorf 2013; Schwarz 2019, pp 100–102. But see Biehler 2015, pp 112–115.

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on the historical development of international criminal law pertaining to sexualized violence.

2.4.1 Before World War II The first attempts to document and prosecute conflict-related sexualized violence date back to the aftermath of World War I, when the Allies set up the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties in 1919. The Commission investigated, inter alia, reports of rapes committed by German soldiers against French and Belgian women.157 It enumerated rape and the abduction of girls and women for the purpose of enforced prostitution within its list of 32 war crimes and recommended trials before an international tribunal.158 However, the Allies did not establish such a tribunal and consequently, the perpetrators were not held accountable.159

2.4.2 Trials Post-World War II After World War II, the Allies set up the International Military Tribunal in Nuremberg in 1945 and the International Military Tribunal for the Far East in Tokyo in 1946 in order to prosecute the major war criminals. The tribunals had jurisdiction over crimes against peace, war crimes, and crimes against humanity, under the condition that these were linked to the war.160

2.4.2.1

The Nuremberg Trial: The International Military Tribunal

The perpetration of sexualized violence in Europe during World War II is well documented, particularly—though not exclusively—acts committed by members of the German army and in concentration camps.161 The Statute of the International Military Tribunal did not explicitly list rape or other sexualized violence as war crimes or crimes against humanity.162 This omission is particularly noteworthy with regard 157 See

Bassiouni and McCormick 1996, pp 3–4.

158 See Askin 1997, pp 42–43; Askin 2003a, p 300; De Brouwer 2005, p 5; Gardam and Jarvis 2001,

p 58. The commission’s report is reprinted at Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties 1920. 159 See also Möller 2001, pp 284–285; Werle and Jeßberger 2020, marginal nos 8–10. 160 See Seibert-Fohr 2009, p 2. 161 See e.g. Askin 1997, pp 52–61, 71–73, 88–91, focusing on rape, forced prostitution, and forced sterilization. See also Biehler 2015, pp 55–60; Niarchos 1995, pp 663–666; Schwarz 2019, p 77. 162 See e.g. Askin 2013, p 32; Bensouda 2007, p 403.

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to war crimes, because there were good arguments in favour of a prohibition of rape under international humanitarian law at the time.163 Although the prosecution of such acts would have been possible as the crime against humanity of other inhumane acts164 as well as the war crime of illtreatment,165 neither the charges nor the judgment contained any references to sexualized violence.166 However, incidents of sexualized violence emerged as evidence and thus received some (limited) attention during the proceedings.167 Particularly the acts of rape168 and forced nudity (often in the form of being photographed nude before killings)169 were brought up several times during the trial. For example, the evidence presented with regard to German atrocities in the Crimean town Kerch included the following statement: Many women and girls in their teens were separated from the rest of the internees by the fascist blackguards and locked in separate cells, where the unfortunate creatures were subjected to particularly outrageous forms of torture. They were raped, their breasts cut off, their stomachs ripped open, their feet and hands cut off, and their eyes gouged out.170

Nevertheless, despite the clear evidence presented,171 the term “rape” did not appear once in the judgment.172 Sexual mutilations and forced nudity also did not come up.173 The International Military Tribunal thus did not hold the defendants accountable for sexualized violence, at least not explicitly.174

163 See

this chapter, Sect. 2.3.1. See also Grey 2019, pp 72–73. of the International Military Tribunal, Annex to the Agreement by the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945 (IMT Charter), Article 6(c); see Askin 1997, p 142; Bassiouni 2011, p 425; De Brouwer 2005, p 7; Möller 2001, p 285; Schwarz 2019, p 104; Werle and Jeßberger 2020, marginal no 1065. 165 IMT Charter, above n 164, Article 6(b); see Schwarz 2019, p 104. 166 See Adams 2013, pp 136–142; Gardam and Jarvis 2001, p 205. 167 See Gardam and Jarvis 2001, p 205 However, the evidence was only documentary and no witnesses were called to testify in this regard, see Bassiouni 2011, p 426. 168 IMT Transcripts 1945–1946, above n 9, vol 6, pp 178, 404–407; vol 7, pp 179, 440, 442, 455–457, 467, 494; vol 8, p 54 169 Ibid., vol 2, p 139; vol 6, pp 170, 178; vol 7, p 548. 170 Ibid., vol 7, p 494. 171 See also Schwarz 2019, p 105. 172 See Niarchos 1995, pp 665, 677; Seibert-Fohr 2008, p 162. 173 The treatment of reproductive violence in the Nuremberg trial will be documented separately below, see Chap. 3, Sect. 3.3.2.1. 174 See Schwarz 2019, pp 105–106. 164 Charter

2.4 International Criminal Law

2.4.2.2

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The Tokyo Trial: The International Military Tribunal for the Far East

The Charter of the International Military Tribunal for the Far East also did not explicitly list rape or other forms of sexualized violence as war crimes or crimes against humanity.175 Nevertheless, the prosecution included rape in the indictment under the third group of the charges (conventional war crimes and crimes against humanity under Article 5(b) and (c) of the Charter, counts 53 to 55),176 characterizing it as inhumane treatment,177 mistreatment,178 and failure to respect family honour and rights.179 Moreover, many incidents of rape and other gender-related crimes were cited as evidence during the trial.180 The judges expressly convicted two defendants, Koki Hirota and Iwane Matsui, for rape (among other crimes) and sentenced them to death.181 The judgment also documented the massacres that became known as the “Rape of Nanking”,182 stating that “approximately 20,000 cases of rape occurred within the city during the first month of the occupation”.183 It also briefly referred to forced prostitution of women in the city of Kweilin.184 For the most part, however, sexualized violence was used solely as evidence for other crimes of a non-gender-related matter.185 The convictions were based on general findings; they did not explicitly mention individual acts of rape or other types of sexualized violence.186 Furthermore, many incidents of gender-related atrocities committed during World War II in the Asian-Pacific region remained unaddressed despite significant evidence. Particularly, the International Military Tribunal for the Far East ignored sexualized crimes committed against so-called “comfort women”, who were forced into prostitution and sexual slavery in occupied territories such as Korea, the Philippines, and China.187

175 See

ibid., p 106. and Cryer 2008, p 17. 177 Ibid., p 59: indictment, appendix D, sec. 1. 178 Ibid., p 60: indictment, appendix D, sec. 5(c). 179 Ibid., p 62: indictment appendix D, sec. 12. 180 See Askin 2013, pp 40–45 with further references. See also Adams 2013, p 209. 181 Boister and Cryer 2008, pp 603–604, 611–612, 627. See also Gardam and Jarvis 2001, p 206, footnote 185, stating that it is possible to argue that all defendants convicted under counts 54 and 55 have also been found responsible for rape. 182 See generally Biehler 2015, pp 65–68; Brownmiller 1975, pp 57–62. 183 Boister and Cryer 2008, p 536. 184 Ibid., p 540. 185 See Gardam and Jarvis 2001, p 207. 186 See Adams 2013, p 211; Schwarz 2019, p 107. 187 See Bensouda 2007, p 404; Biehler 2015, pp 75–76; Copelon 2000, pp 221–222; Durham 2012, p 259; Gardam and Jarvis 2001, pp 207–208; Grey 2019, p 77; Niarchos 1995, p 666. See also Chap. 3, Sect. 3.2.1.3. 176 Boister

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2.4.2.3

2 The Foundation: Sexualized Violence in International Law

Subsequent Trials and the United Nations War Crimes Commission

Whereas the International Military Tribunals in Nuremberg and Tokyo exclusively tried the most prominent political and military leaders, many other trials following World War II took place in national, sometimes military, jurisdictions. These trials were influenced by the United Nations War Crimes Commission, which had been established by the Allies in 1942 in order to collect evidence for future criminal proceedings regarding war crimes.188 During its first meetings in 1943, the Commission discussed drawing up a list of war crimes.189 Ultimately, it decided to use the (non-exhaustive) list of 32 war crimes as drawn up by the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties in 1919, which included rape and the abduction of girls and women for the purpose of enforced prostitution as the only forms of gender-based violence, as a basis for its investigative activities.190 There are some references to sexualized violence in the trials following World War II. For example, an Australian military court sentenced Yoshio Taki to death for crimes including rape committed against a Chinese civilian in a trial held in Rabaul in December 1945.191 Also in December 1945, a United States military commission in Manila sentenced Japanese general Tomoyuki Yamashita to death for failing to prevent his troops from committing various atrocities including rape in the Philippines.192 Japanese general Takashi Sakai was sentenced to death for war crimes and crimes against humanity including rape by a Chinese military tribunal in August 1946.193 Furthermore, a Dutch court-martial in Batavia convicted Washio Awochi for the war crime of enforced prostitution of Dutch women in October 1946 and sentenced him to ten years of imprisonment.194 Belgium, Denmark, Italy, France, Greece, Poland, and Yugoslavia carried out further trials involving charges of rape or forced prostitution with support by the United Nations War Crimes Commission.195 According to Dan Plesch, 151 documented cases in the United Nations War Crimes Commission’s archive involved sexual violence charges.196 In some of these cases, rape was the only charge, indicating that prosecutors regarded sexual crimes 188 See

Werle and Jeßberger 2020, marginal no 18. Initially, the body was named United Nations Commission for the Investigation of War Crimes. 189 United Nations Commission for the Investigation of War Crimes 1943, p 2. 190 United Nations War Crimes Commission 1943a, pp 1–2. The list is annexed to the meeting’s report at United Nations War Crimes Commission 1943b. See also generally Plesch et al. 2014. 191 See United Nations War Crimes Commission 1947–1949, vol 15, p 200. 192 Ibid., vol 4, pp 1–96. See also Biehler 2015, pp 68–69. 193 United Nations War Crimes Commission 1947–1949, vol 14, pp 1–7. See also Biehler 2015, p 69; Möller 2001, pp 286–287. 194 United Nations War Crimes Commission 1947–1949, vol 13, pp 122–125, see also Askin 2013, p 45; Möller 2001, p 286. 195 See Plesch et al. 2014, pp 352–354. 196 Plesch 2017, p 16.

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as sufficiently serious to warrant prosecution and punishment.197 These trials and the Commission’s endorsement of rape and enforced prostitution set an important precedent for the further development of international criminal law.198

2.4.2.4

Control Council Law No. 10 of 1945

The Allied Control Council issued Law Number 10 on the Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity on 20 December 1945.199 It served as a common basis for further trials in the occupied zones by reiterating and improving the principles of the Nuremberg trial.200 For the first time, rape was explicitly listed as a crime against humanity.201 Although this categorization constituted a significant step forward for international criminal law, no prosecutions under this specific provision followed.202

2.4.2.5

Summary

Despite the existence of clear evidence concerning sexualized violence during World War II, criminal proceedings were conducted only to a very limited extent. The low number of convictions and the portrayal of evidence of sexualized violence in some trials did not adequately reflect the widespread commission of war-related sexualized crimes.203

2.4.3 The Cold War Period and Beyond In the years following the Nuremberg and Tokyo trials, the development of international criminal law came to a standstill. Particularly due to the political implications of the Cold War, no further international criminal trials were conducted.204

197 See

ibid., pp 18–19. generally ibid., pp 11–45. 199 Control Council Law no. 10: Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, 3 Official Gazette Control Council for Germany 50, 20 December 1945 (Control Council Law no. 10). 200 See Werle and Jeßberger 2020, marginal no 35. 201 Control Council Law no. 10, above n 199, Article II(1)(c). 202 See Adams 2013, p 207; Askin 2013, p 37; De Brouwer 2005, p 8; Niarchos 1995, p 677; Schwarz 2019, p 109; Vest and Sutter 2014, marginal no 434. For references to reproductive violence, see Chap. 3, Sect. 3.3.2. 203 See also Möller 2001, p 287. 204 See generally Werle and Jeßberger 2020, marginal nos 40–44. 198 See

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2.4.3.1

Affirmation of the Nuremberg Principles

Nevertheless, the principles developed during the Nuremberg trials received affirmation by the international community. The United Nations General Assembly explicitly endorsed the principles recognized by the Nuremberg Charter and judgment in a 1946 resolution.205 Furthermore, it directed the newly created International Law Commission to formulate these principles and to prepare a draft code of international crimes.206 The Nuremberg Principles subsequently adopted by the International Law Commission,207 in line with the Nuremberg Charter, contain no explicit reference to sexualized violence.

2.4.3.2

The Genocide Convention

A further important development was the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide by the United Nations General Assembly on 9 December 1948.208 Article II of the Convention reads as follows: In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

This Article is of tremendous importance because it constitutes the first formulation of genocide as a crime under international law.209 The criminalization of genocide has since achieved jus cogens status, meaning that states may not derogate from it, and the definition has been reproduced verbatim in the statutes of various international courts, including the International Criminal Court.210 Although the provision includes a reference to reproductive violence in Section (d),211 it does not explicitly capture sexualized violence. In fact, gender-based violence in general

205 United

Nations General Assembly 1946. Nations General Assembly 1947: “The General Assembly […] directs the Commission to […] prepare a draft code of offences against the peace and security of mankind […].” 207 International Law Commission 1950. 208 Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 278 (entered into force 12 January 1951) (Genocide Convention). 209 See Werle and Jeßberger 2020, marginal no 864. 210 See De Brouwer 2005, pp 42–43. 211 See Chap. 3, Sect. 3.3.3. See also Chap. 4, Sect. 4.3.4. 206 United

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received almost no attention during the negotiations on the crime of genocide; acts of sexualized violence were not discussed at all.212 Still, sexualized violence falls within the scope of the provision, particularly of Sections (b) and (c). Regarding “serious bodily or mental harm” (Article II(b) of the Genocide Convention), this interpretation was advanced by Trial Chamber I of the International Criminal Tribunal for Rwanda in its groundbreaking Akayesu decision of 1998, where it stated: [T]he Chamber wishes to underscore the fact that in its opinion, [rape and sexual violence] constitute genocide in the same way as any other act as long as they were committed with the specific intent to destroy, in whole or in part, a particular group, targeted as such. Indeed, rape and sexual violence certainly constitute infliction of serious bodily and mental harm on the victims and are even, according to the Chamber, one of the worst ways of inflict [sic] harm on the victim as he or she suffers both bodily and mental harm.213 [footnotes omitted]

The International Criminal Court’s Elements of Crimes today confirm this interpretation, stating in a footnote that the conduct causing serious bodily or mental harm may include, among other acts, rape and sexual violence.214 Rape and other forms of sexualized violence may also constitute “conditions of life calculated to bring about its physical destruction in whole or in part” (Article II(c) of the Genocide Convention).215 For example, as Cherif Bassiouni and Peter Manikas argued, in cultural or religious contexts where women who have been raped are deemed “unmarriageable”, rape and sexual assault may inflict conditions calculated to bring about the group’s destruction through effectively segregating the sexes.216 Anne-Marie de Brouwer further noted that the intentional infection with HIV, as documented during the genocide in Rwanda, falls within the ambit of the provision.217

2.4.3.3

Draft Codes of the International Law Commission

Between 1951 and 1996, the International Law Commission adopted various draft codes of international crimes. The early drafts of 1951218 and 1954219 notably included early codifications of crimes against humanity and violations of the laws and customs of war (war crimes) as well as a detailed list of acts related to aggression. 212 See

De Brouwer 2005, pp 43–44. Prosecutor v Jean-Paul Akayesu, Judgment, 2 September 1998, ICTR-96-4-T (Akayesu 1998), para 731; see also Bassiouni and Manikas 1996, p 587; De Brouwer 2005, pp 51–58; Schabas 2009, pp 185–188. 214 ICC Elements of Crimes, Article 6(b), no. 1, footnote 3: “This conduct may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment.” 215 ICTR, Prosecutor v Clément Kayishema and Obed Ruzindana, Judgment, 21 May 1999, ICTR95-1-T, para 116; Bassiouni and Manikas 1996, p 587; De Brouwer 2005, pp 56–58; Schwarz 2019, pp 151–155; Werle and Jeßberger 2020, marginal no 900. 216 Bassiouni and Manikas 1996, p 587. 217 De Brouwer 2005, p 57. 218 International Law Commission 1951. 219 International Law Commission 1954. 213 ICTR,

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In deviation from Article 6(d) of the Charter of the International Military Tribunal, the provision on war crimes did not include an enumeration of individual acts, thus criminalizing any acts in violation of the laws and customs of war in the form of a catch-all provision.220 This approach did not prevail. While the provisions on crimes against humanity (labelled as “inhuman acts”) did include a non-exhaustive enumeration of certain acts such as murder, extermination, and persecution, they made no explicit reference to acts of sexualized violence.221 It is noteworthy that the International Law Commission did not follow Control Council Law No. 10 of 1945 in listing rape as a crime against humanity. With regard to the crime of genocide, both drafts replicated the acts listed in the Genocide Convention. Due to disagreements relating to the definition of aggression, the United Nations General Assembly postponed further work on the draft code.222 It invited the International Law Commission to resume its work on the draft code in 1981,223 and a new version was provisionally adopted in 1991.224 Apart from the four core crimes, this draft also included other crimes such as colonial domination, international terrorism, and illicit traffic in narcotic drugs, which met with opposition from governments.225 Pertaining to crimes against humanity, the International Law Commission slightly expanded the list of individual acts included in the 1954 draft by adding, for instance, the act of torture to its (now exhaustive) list of individual crimes.226 However, rape again did not appear on the list. The draft further lists several categories of war crimes,227 none of them relating explicitly to sexualized violence. As a parallel development, the International Law Commission produced a Draft Statute for an International Criminal Court in 1994, which gave the proposed court jurisdiction over genocide, aggression, serious violations of the laws and customs applicable in armed conflicts, crimes against humanity, and various treaty crimes listed in the Annex. Although the Draft Statute did not include definitions of these crimes, the International Law Commission provided further commentary on the provisions in its report. Pertaining to crimes against humanity, the Commission referred to the corresponding provision in the Statute for the International Criminal Tribunal for the Former Yugoslavia, which included the act of rape as a crime against humanity.228 In this regard, the Commission stated, rather brusquely: “The particular forms of unlawful act (murder, enslavement, deportation, torture, rape, imprisonment, etc.) are less crucial to the definition than the factors of scale and 220 International

Law Commission 1951, Article 2(11); International Law Commission 1954, Article 2(12). 221 International Law Commission 1951, Article 2(10); International Law Commission 1954, Article 2(11). 222 United Nations General Assembly 1954. 223 United Nations General Assembly 1981. 224 International Law Commission 1991. 225 See Rayfuse 1997, pp 47–48. 226 International Law Commission 1991, Article 21. 227 Ibid., Article 22. 228 See this chapter, Sect. 2.4.4.1.

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deliberate policy, as well as in their being targeted against the civilian population in whole or in part.”229 Thus, none of the draft codes of international crimes produced by the International Law Commission until 1994 contained any explicit reference to sexualized violence. It was not until 1996, with the adoption of a new draft code of international crimes, that the International Law Commission explicitly recognized certain forms of sexualized violence as war crimes and crimes against humanity.230 In Article 18(j), the draft code included “rape, enforced prostitution and other forms of sexual abuse” as a form of crimes against humanity. In this regard, the Commission referred to the reports of systematic rape in Yugoslavia. As support for the idea that rape constitutes a crime against humanity, the Commission pointed to corresponding statements by the United Nations General Assembly and the National Commission for Truth and Justice of Haiti as well as the relevant provisions in Control Council Law No. 10 and the Statutes of the ad hoc tribunals for Yugoslavia and Rwanda.231 It also stated that rape as well as enforced prostitution and other forms of sexual abuse, when directed against women, constitute violations of the Convention on the Elimination of All Forms of Discrimination against Women of 1979.232 In contrast, the International Law Commission explicitly refrained from adding gender-based persecution to the draft code, stating that it “decided to limit the possible grounds for persecution to those contained in existing legal instruments”. The Commission did not explain, however, why it chose to add persecution on ethnic grounds to its draft, which had not been part of these existing legal instruments either.233 Pertaining to war crimes, the relevant provision mentions “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault” both in the context of international and non-international armed conflicts.234 The problematic linkage to “indecency”235 is still present here. At the same time, it is notable that the Commission deviated from its previous stance in explicitly listing rape as a war crime. In this regard, it stated that “it was important to reaffirm explicitly the criminal nature of such conduct as a war crime when committed in armed conflict of an international character in view of the unprecedented reports of this type of criminal conduct having been committed in a systematic manner or on a large scale in the former Yugoslavia.”236 It becomes apparent that the atrocities committed during the wars in the former Yugoslavia strongly influenced the International Law Commission in its deliberations 229 International 230 International 231 Ibid.,

Law Commission 1994, p 40. Law Commission 1996.

p 50. On the Convention on the Elimination of all Forms of Violence Against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 December 1981) (CEDAW Convention), see Chap. 3, Sect. 3.4.1. 233 See Grey 2019, p 102. 234 International Law Commission 1996, Article 20(d), (f)(v). 235 See this chapter, Sect. 2.3.3. 236 International Law Commission 1996, p 55. 232 Ibid.

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on a draft code of international crimes. The impact of the conflicts in Yugoslavia and Rwanda as well as the establishment of the two ad hoc tribunals will be further explored in the next subsection.

2.4.4 Statutes and Practice of the ad hoc Tribunals In the 1990s, the United Nations reacted to the gross violations of international humanitarian law in the context of the wars in Yugoslavia and the Rwandan genocide by establishing two international criminal courts. Unlike the Nuremberg and Tokyo tribunals as well as, a few years later, the International Criminal Court, which were all set up by way of international treaties, the ad hoc tribunals for the former Yugoslavia and Rwanda were established pursuant to two UN Security Council resolutions based on Chapter VII of the UN Charter.237 After the period of standstill during the Cold War, the establishment of the two courts triggered a renaissance of international criminal law.238 The Statutes of both courts reflected existing customary international law.239 Their explicit reference to rape and, in the case of the Rwanda tribunal, to other forms of sexualized violence as international crimes is thus particularly noteworthy and indicates their status as customary international crimes at the time. Both tribunals have contributed immensely to the development and clarification of international criminal law through their practice, not least with respect to sexualized crimes under international law. Although the commission of conflict-related sexualized violence was far from unprecedented, the sexualized atrocities committed in Yugoslavia and Rwanda received tremendous international attention.240 This has played a major role in the development of international criminal law pertaining to sexualized violence and has led the tribunals to address such crimes in various cases.241 Nevertheless, it should be noted that at the beginning of the courts’ activities, traditional narratives concerning sexualized violence appeared to persist; the gradual progress in prosecuting such acts required strong efforts by dedicated actors within the courts’ institutions as well as by civil society, for example through amicus curiae briefs.242

237 United

Nations Security Council 1993; United Nations Security Council 1994. and Jeßberger 2020, marginal no 45; see also Werle 1997, p 814. 239 See Werle and Jeßberger 2020, marginal no 48. 240 For an overview of the documented crimes, see De Brouwer 2005, pp 9–14. 241 See also Schwarz 2019, p 124. 242 See generally Grey 2019, pp 79–85. 238 Werle

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2.4.4.1

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The International Criminal Tribunal for the Former Yugoslavia

The International Criminal Tribunal for the Former Yugoslavia (ICTY) was established by the UN Security Council in response to the crimes committed during the wars raging in the former Yugoslavia at the beginning of the 1990s. In 1991 and 1992, most of the former constituent republics of the Socialist Federal Republic of Yugoslavia—Croatia, Slovenia, Macedonia, and Bosnia and Herzegovina—declared their independence, which led to the breakup of Yugoslavia and to the outbreak of several interconnected wars.243 All parties committed violations of international law including sexualized violence. However, the Serb army pursued a particularly brutal policy of “ethnic cleansing”, using sexualized violence—among other forms of violence—as a tool of dispelling the entire non-Serb population from certain areas.244 Most of the victims of sexualized violence were Bosnian Muslim women; it is estimated that in the conflict in Bosnia and Herzegovina alone, between 20,000 and 50,000 women were raped.245 Several reports indicate that Serb militias established “rape camps”, in which Bosnian and Croatian women were systematically raped.246 In its resolution establishing the ICTY, the United Nations Security Council explicitly expressed its grave alarm at continuing reports of widespread and flagrant violations of international humanitarian law occurring within the territory of the former Yugoslavia, and especially in the Republic of Bosnia and Herzegovina, including reports of mass killings, massive, organized and systematic detention and rape of women […].247

The Statute of the ICTY lists rape as a crime against humanity,248 based on the precedent set by Control Council Law No. 10. Although this explicit mention of rape as a crime under international law reflects major progress, there are two caveats. First, the Statute does not list rape as a war crime or an act of genocide. With regard to war crimes, this is particularly noteworthy against the background of widespread agreement that sexualized violence had been used as a “tool” of war in the conflict249 as well as the precedent set by the post-World War II trials supported by the United Nations War Crimes Commission.250 Second, there is no explicit reference to other kinds of sexualized violence, despite academic and civil society proposals on this matter.251 243 For

the historical background of the conflict in the former Yugoslavia, see generally Werle and Vormbaum 2018, pp 243–244. 244 See Special Rapporteur of the Commission on Human Rights 1993, paras 82–88. 245 See De Brouwer 2005, p 9. 246 See Allen 1996, pp 65–66; Commission of Experts 1994, para 248; Stiglmayer 1993, pp 149–169. 247 United Nations Security Council 1993, preamble para 3. 248 Statute of the International Criminal Tribunal for the Former Yugoslavia, adopted 25 May 1993 by United Nations Security Council Resolution 827, Article 5(g). 249 See Werle and Jeßberger 2020, marginal no 1282. 250 See this chapter, Sect. 2.4.2.3. 251 See particularly Green et al. 1994.

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Nevertheless, the ICTY tried sexualized crimes in several of its cases and made significant progress in this regard through its practice and the adjudicated cases.252 More than 40 percent of cases before the ICTY included charges of sexualized crimes against international law,253 leading to convictions for war crimes and crimes against humanity, but not genocide.254 Some important cases include the trials against ˇ Duško Tadi´c, Dragoljub Kunarac and others, Anto Furundžija, and the Celebi´ ci case against Zdravko Muci´c and others.255 In the Tadi´c case, the ICTY convicted the defendant for several counts of crimes against humanity, violations of the laws or customs of war as well as grave breaches of the 1949 Geneva Conventions, including ˇ ci several acts of sexualized violence against both women and men.256 In the Celebi´ case, the ICTY developed an important precedent in recognizing rape as a form of torture.257 In the trial against Furundžija, which was the first ICTY case to exclusively address sexualized violence, the judges elaborated on the general criminality and the definition of rape as a crime under international law.258 The Kunarac case is significant in particular for its recognition of sexual enslavement as a crime against humanity.259

2.4.4.2

The International Criminal Tribunal for Rwanda

The UN Security Council established the International Criminal Tribunal for Rwanda (ICTR) in the aftermath of the Rwandan genocide. After the Rwandan president Juvénal Habyarimana, a member of the Hutu group, had died when his airplane was 252 See

Gardam and Jarvis 2001, pp 212–213 with further references. Criminal Tribunal for the Former Yugoslavia, Crimes of Sexual Violence: In Numbers, September 2016, https://www.icty.org/en/features/crimes-sexual-violence/in-numbers (accessed 24 October 2020). 254 See generally Adams 2013, pp 218–265. 255 For a summary, see International Criminal Tribunal for the Former Yugoslavia, Crimes of Sexual Violence: Landmark Cases, https://www.icty.org/en/features/crimes-sexual-violence/lan dmark-cases (accessed 24 October 2020). 256 ICTY, Prosecutor v Duško Tadi´ c, Judgment, 7 May 1997, IT-94-1-T; ICTY, Prosecutor v Duško Tadi´c, Appeals Judgment, 15 July 1999, IT-94-1-A; see also Askin 1999, pp 100–105; De Brouwer 2005, pp 481–482; Möller 2001, p 289. 257 Celebi´ ˇ ci 1998, above n 77; ICTY, Prosecutor v Zejnil Delali´c, Zdravko Muci´c, Hazim Deli´c and Esad Landžo, Appeals Judgment, 20 February 2001, IT-96-21-A; see also Askin 2003a, pp 321– 327; De Brouwer 2005, pp 482–483; Greve 2008, pp 178–187; Odio-Benito 2005, pp 170–171; Schwarz 2019, pp 121–122. 258 ICTY, Prosecutor v Anto Furundžija, Judgment, 10 December 1998, IT-95-17/1-T; ICTY, Prosecutor v Anto Furundžija, Appeals Judgment, 21 July 2000, IT-95-17/1-A; see also Askin 2003a, pp 327–332; Biehler 2015, pp 168–172; De Brouwer 2005, p 484; Greve 2008, pp 194–199; Möller 2001, pp 291–292; Odio-Benito 2005, pp 168–169. 259 ICTY, Prosecutor v Dragoljub Kunarac, Radomir Kovaˇ c and Zoran Vukovi´c, Judgment, 22 February 2001, IT-96-23-T and IT-96-23/1-T; ICTY, Prosecutor v Dragoljub Kunarac, Radomir Kovaˇc and Zoran Vukovi´c, Appeals Judgment, 12 June 2002, IT-96-23-A and IT-96-23/1-A; see also Askin 2003a, pp 333–341; Biehler 2015, pp 173–177; De Brouwer 2005, pp 485–487; Greve 2008, pp 251–261; Odio-Benito 2005, pp 169–170. 253 International

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shot down under unclear circumstances, a violent campaign against the Rwandan Tutsis as well as the Twa and moderate Hutus erupted. Members of the Hutu population killed between 500,000 and one million persons within just a few months.260 Sexualized violence was widespread during the conflict. The UN Commission on Human Rights’ Special Rapporteur stated illustratively: “[R]ape was the rule and its absence the exception.”261 Underlining that rape had been used systematically as a “weapon”, he estimated that there had been between 250,000 and 500,000 cases.262 He also highlighted the particularly brutal nature of sexualized violence, ranging from gang rapes to enforcing the rape of family members to brutal sexual mutilations.263 As in the case of the ICTY, the ICTR Statute lists rape, but fails to recognize other forms of sexualized violence as crimes against humanity.264 However, an important novelty was the Statute’s explicit categorization of sexualized violence as a war crime in non-international armed conflicts. Article 4 of the ICTR Statute lists various individual acts considered serious violations of Article 3 common to the Geneva Conventions of 1949 and Additional Protocol II of 1977, including “[o]utrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault”265 . In classifying these forms of sexualized violence as “outrages upon personal dignity” instead of serious violations of bodily integrity, the Statute follows the precedent set by Article 75(2)(b) of Additional Protocol I and Article 4(2)(e) of Additional Protocol II to the Geneva Conventions.266 Out of the 93 persons indicted, 52 were charged with sexualized crimes, though only 13 defendants were convicted.267 This figure illustrates shortcomings in the prosecution of sexualized violence.268 Nevertheless, the ICTR’s practice had tremendous influence on the substantive law regarding sexualized crimes under international law. Perhaps the most important case in this regard was the trial against Jean-Paul Akayesu, which not only marked the first international conviction for genocide, but also acknowledged that sexualized violence may constitute genocidal conduct.269 In this regard, it must be noted that rape was not originally included in the charges but

260 For

the historical background of the Rwandan genocide, see generally Werle and Vormbaum 2018, p 177. 261 United Nations Economic and Social Council 1996, para 16. 262 Ibid. 263 Ibid., para 18. 264 Statute for the International Criminal Tribunal for Rwanda, adopted 8 November 1994 by United Nations Security Council Resolution 955 (ICTR Statute), Article 3(g). 265 Ibid., Article 4(e). 266 See Schwarz 2019, p 113; Werle and Jeßberger 2020, marginal nos 1281–1282. 267 Office of the Prosecutor for the International Criminal Tribunal for Rwanda 2014, paras 10–11. 268 Schwarz 2019, p 124. 269 Akayesu 1998, above n 213; ICTR, Prosecutor v Jean-Paul Akayesu, Appeals Judgment, 1 June 2001, ICTR-96-4-A; see this chapter, Sect. 2.4.3.2. See also Askin 2003a, pp 318–321; Biehler 2015, pp 164–167; Greve 2008, pp 227–239; Odio-Benito 2005, pp 167–168; Schwarz 2019, pp 116–120; Seibert-Fohr 2008, pp 166–169; Vest and Sutter 2014, marginal no 438.

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was added later on, following sensitive questioning by Judges Navanethem Pillay, Lennart Aspegren, and Laïty Kama, as well as engagement by civil society.270

2.4.5 The International Criminal Court The establishment of the International Criminal Court (ICC) consolidated the development of international criminal law, not least with respect to the criminalization of conflict-related sexualized violence. The ICC Statute was adopted on 17 July 1998. It came into effect on 1 July 2002.

2.4.5.1

Sexualized and Gender-Based Crimes in the ICC’s Legal Framework

The provisions on sexualized and gender-based violence contained in the ICC Statute represent major progress in the treatment of these crimes under international law. For the first time, the Statute not only lists rape and select other acts such as enforced prostitution, but enumerates a broad range of specific crimes under the umbrella of both crimes against humanity and war crimes: rape, sexual slavery, enforced prostitution, forced pregnancy, and enforced sterilization.271 In the Elements of Crimes, the crime of rape is defined in a gender-neutral manner, meaning that men can also be victims of rape.272 Moreover, the provisions on gender-based violence contain a residual clause covering similar acts of sexual violence not explicitly enumerated.273 This is particularly important because it allows for a dynamic interpretation and application of the ICC Statute to sexualized violence. Additionally, the Statute explicitly criminalizes the crime against humanity of enslavement with special regard to trafficking in women and children274 as well as the crime against humanity of persecution on the grounds of gender.275 This constitutes the first international criminalization of gender-based persecution, which represents a significant advancement in creating

270 See

Copelon 2000, pp 223–228; Ellis 2007, p 232; Grey and Chappell 2019, pp 223–225.

271 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS

3 (entered into force 1 July 2002) (ICC Statute), Articles 7(1)(g), 8(2)(b)(xxii), 8(2)(e)(vi). Elements of Crimes, Article (7)(1)(g)-1, no. 1, footnote 15; Article 8(2)(b)(xxii)-1, no. 1, footnote 50; art 8(2)(e)(vi)-1, no. 1, footnote 63. 273 ICC Statute, above n 271, Article 7(1)(g): “any other form of sexual violence of comparable gravity”, Article 8(2)(b)(xxii): “any other form of sexual violence also constituting a grave breach of the Geneva Conventions”, Article 8(2)(e)(vi): “any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions”. 274 Ibid., Articles 7(1)(c), 7(2)(c). 275 Ibid., Article 7(1)(h). 272 ICC

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a gender-sensitive international criminal legal framework, although the potentially broad scope of the provision may prove problematic in practice.276 With regard to genocide, the ICC Statute repeats verbatim the definition of the Genocide Convention.277 Despite efforts to add sexualized violence to the list of genocidal acts, there was broad consensus during the negotiations not to modify or expand the definition agreed upon in the Genocide Convention,278 which the ad hoc tribunals had also used. Nevertheless, the Elements of Crimes contain a footnote stating that serious bodily or mental harm under Article 6(b) of the ICC Statute may include rape and sexual violence.279 In a procedural context, the Rules of Procedure and Evidence contain provisions relevant to evidentiary matters in cases concerning sexualized crimes. For example, the Rules state that consent cannot be inferred by certain circumstances such as the victim’s words or conduct under coercive circumstances, or the victim’s silence or lack of resistance.280 Furthermore, credibility, character, or predisposition to sexual availability cannot be inferred by the sexual nature of a victim’s prior or subsequent conduct.281 Evidence of the prior or subsequent sexual conduct of a victim or witness shall generally not be admitted.282 Moreover, Article 68(1) of the ICC Statute allows for the protection of victims and witnesses with specific regard to gender and cases of gender violence. As to the institutional framework, the Statute calls upon the Prosecutor to appoint advisers with special expertise on sexual and gender violence in Article 42(9) and obligates her to consider the gender of victims and witnesses as well as the nature of sexual and gender crimes in her investigations pursuant to Article 54(1)(b). Concerning the selection of judges, Article 36(8) calls upon the States Parties to include judges with expertise on violence against women and children. In addition, the Rules of Procedure and Evidence contain further regulations obligating organs of the Court to take gender-sensitive measures with respect to victims and witnesses,283 and to provide training on issues of sexual violence and gender sensitivity.284

276 See

Grey et al. 2019; Kappler 2019, pp 132–140; Schwarz 2019, pp 369–408. Statute, above n 271, Article 6; Genocide Convention, above n 208, Article II. 278 See Steains 1999, p 363. 279 ICC Elements of Crimes, Article 6(b), no. 1, footnote 3. The proposed African Criminal Court’s Statute would be the first international instrument to specifically list “acts of rape or any other form of sexual violence” as genocidal acts, Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, opened for signature 27 June 2014 (Malabo Protocol), Article 28B(f); see Ambos 2017, pp 39–40. 280 ICC Rules of Procedure and Evidence, rule 70(a)–(c). 281 Ibid., rule 70(d). 282 Ibid., rule 71. 283 See e.g. ibid., rules 16(1)(d), 17(2)(b)(iii), 72, 86, 88(1), 88(5), 112(4). 284 Ibid., rules 17(2)(a)(iv), 18(d). 277 ICC

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2.4.5.2

“Gender” and the ICC

The inclusion of the term “gender” in the ICC Statute is a remarkable development, because it had not appeared in any previous international criminal legal instrument before285 and the ICC Statute is the first international treaty to define “gender”.286 The fact that the text refers to the concept of gender at all was the result of intense lobbying efforts by women’s rights groups. In fact, the 1994 draft of the ICC Statute prepared by the International Law Commission had not included any gender references.287 Article 21(3) of the ICC Statute now provides that the application and interpretation of the law must be without adverse distinction founded on grounds of gender, among others. This might be seen as the most important gender provision in the Statute, because it generally prohibits gender discrimination.288 Article 7(3) of the ICC Statute provides the following definition: For the purposes of this Statute, it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above.

This circular289 and somewhat ambiguous definition was the result of controversial negotiations; some delegations were particularly concerned that “gender” would also relate to sexual orientation, which they vehemently opposed.290 The result has elicited harsh criticism,291 particularly with regard to its reference to “the two sexes”, which reproduces a heteronormative and exclusionary conceptualization of sex as binary.292 The controversies on how to define gender have recently resurfaced during the negotiations for a Crimes against Humanity Convention. As a result of civil society engagement, the International Law Commission began discussions on such a possible convention in 2014. In August 2019, it adopted draft articles on prevention and punishment of crimes against humanity and submitted them to the UN General Assembly.293 While the draft articles are closely modelled after Article 7 of the ICC Statute, they no longer replicate the gender definition of Article 7(3). In fact, after an earlier draft, which had reproduced the ICC’s definition, met with criticism,294 the

285 See

Grey 2019, p 113. Oosterveld 2005, p 55; Schwarz 2019, p 38. 287 See Oosterveld 2005, pp 58–66. 288 See Bedont 1999, p 185; deGuzman 2016, marginal nos 49–52. 289 See Kappler 2019, p 172. 290 See Chappell 2016, pp 44–46; Glasius 2006, pp 86–87; Grey 2019, pp 40–42; Oosterveld 2005, pp 58–66; Schwarz 2019, pp 38–39. 291 See Oosterveld 2005, pp 71–81 with further references. See also Global Justice Center 2018, pp 11–14. 292 See Kappler 2019, pp 159–160; Schwarz 2019, p 40. 293 International Law Commission 2019. 294 See e.g. Global Justice Center 2018, pp 11–14. 286 See

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International Law Commission decided to delete the paragraph in question based on concerns that the definition was outdated.295 Despite these serious concerns, by referring to the “context of society”, the ICC Statute acknowledges that gender is not equivalent to biological sex and thus allows for, and indeed requires,296 an understanding of gender as a social construct.297 The Office of the Prosecutor shares this understanding in its 2014 Policy Paper on Sexual and Gender-Based Crimes, emphasizing that the “definition acknowledges the social construction of gender, and the accompanying roles, behaviours, activities, and attributes assigned to women and men, and to girls and boys.”298 Despite the complicated and potentially misleading wording, the provision may thus contribute to a nuanced understanding of the terms “sex” and “gender” in international law and lays an important basis for a progressive and gender-sensitive interpretation of crimes under international law.

2.4.5.3

Practice of the ICC Relating to Gender Issues

The adoption of the ICC Statute was widely celebrated as an important step towards ending impunity for sexualized international crimes. For example, on the eve of the ICC’s establishment, former Prosecutor of the ICTY and ICTR, Richard Goldstone, declared that “gender crimes are now given the recognition they were denied for so many years. […] It is my hope that the history of impunity for gender crimes under international criminal law will resolutely be replaced in the future by accountability and deterrence and prevention.”299 Almost 20 years later, the ICC has not fulfilled these hopes. In fact, it has not yet managed to procure a single final conviction for sexualized crimes. The case against Thomas Lubanga Dyilo, the first-ever case before the ICC, concerned only a single charge: the enlistment, conscription, and use of child soldiers.300 Although the prosecution had obtained evidence on sexualized violence early on, it did not deem these acts to be of a sufficiently systematic nature to meet the crimes against humanity threshold and suspended further investigations on this matter.301 As a result, the charges brought by former Prosecutor Luis Moreno Ocampo did not include specific sexualized crimes or any conduct relating to sexualized 295 International

Law Commission 2019, paras 41–42. On these developments, see generally Grey et al. 2019, pp 959–961. 296 Grey et al. 2019, p 961. 297 See Bedont 1999, p 187; Kappler 2019, pp 160–169; Schwarz 2019, pp 39–40. See particularly Oosterveld 2005, p 82, pointing out and criticizing the “constructive ambiguity” of the gender definition in Article 7(3) of the ICC Statute. See also Oosterveld 2014. 298 The Office of the Prosecutor of the International Criminal Court 2014, p 3. See also Oosterveld 2018, pp 450–452. 299 Goldstone 2002, p 285. 300 ICC, Prosecutor v Thomas Lubanga Dyilo, Judgment, 14 March 2012, ICC-01/04-01/06; ICC, Prosecutor v Thomas Lubanga Dyilo, Appeals Judgment, 1 December 2014, ICC-01/04-01/06 A 5. 301 See Chappell 2016, p 111; Grey 2019, pp 130–131; Hayes 2016, p 11.

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violence experienced by child soldiers. The Prosecutor not only failed to properly investigate and bring charges in the first place, he also refused to request an amendment to the charges at a later stage of the proceedings after more evidence had emerged. This prosecutorial strategy was harshly criticized,302 not least by the Trial Chamber itself, which stated that it “strongly deprecates the attitude of the former Prosecutor in relation to the issue of sexual violence.”303 In several other cases, charges concerning sexualized violence have failed for various reasons at various procedural stages. For example, in the case against Callixte Mbarushimana, the Pre-Trial Chamber refused to confirm charges of sexualized crimes as well as the crime of gender-based persecution,304 which had appeared in the original arrest warrant application.305 In this case, the evidence brought by the prosecution to tie Mbarushimana to the conduct in question relied solely on indirect evidence from other organizations306 and was so weak that none of the charges was confirmed.307 The case against Germain Katanga was the first ICC trial to explicitly deal with sexualized crimes, namely rape and sexual slavery.308 While the Trial Chamber convicted Katanga on a majority of the charges, it acquitted him of all sexualized crimes. The Chamber held that while sexual violence had been committed by militia members, this was not part of the common purpose of the group under Article 25(3)(d) of the ICC Statute.309 The distinction between sexual violence and other types of violence (e.g., murder and pillaging) raised questions as to whether sexualized crimes were held to a higher standard than other crimes.310 The ICC handed down its first conviction for sexualized crimes against JeanPierre Bemba Gombo in 2016.311 He was found guilty, among other crimes, of rape as a crime against humanity and a war crime. In 2018, however, the Appeals Chamber overturned this decision and acquitted Bemba of all charges.312 Although the reasons 302 See

generally Chappell 2016, pp 110–114; Grey 2019, pp 128–142. Besides sexual violence, the trial also produced evidence of reproductive violence in the form of forced abortions, which was not part of the charges and thus did not appear in the judgment, see ICC, Prosecutor v Thomas Lubanga Dyilo, Transcript, 18 March 2009, ICC-01/04-01/06-T-150-Red-ENG CT WT, pp 35–36; see also Grey 2019, p 136; Grey forthcoming, p 2. 303 ICC, Prosecutor v Thomas Lubanga Dyilo, Sentencing Decision, 10 July 2012, ICC-01/04-01/06, para 60. 304 ICC, Prosecutor v Callixte Mbarushimana, Decision on the Confirmation of Charges, 16 December 2011, ICC-01/04-01/10. 305 ICC, Situation in the Democratic Republic of the Congo, Prosecution’s Application Under Article 58, 20 August 2010, ICC-01/04, p 17. 306 Hayes 2016, p 28. 307 See Chappell 2016, p 122; Grey 2019, pp 164–165. 308 ICC, Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Decision on the Confirmation of Charges, 30 September 2008, ICC-01/04-01/07, paras 339–354. 309 ICC, Prosecutor v Germain Katanga, Judgment, 7 March 2014, ICC-01/04-01/07, paras 1663– 1664. 310 Grey 2019, p 272; Stahn 2014, p 821. 311 Bemba 2016, above n 19. 312 ICC, Prosecutor v Jean-Pierre Bemba Gombo, Appeals Judgment, 8 June 2018, ICC-01/05-01/08 A.

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given by the Appeals Chamber majority did not specifically relate to the charges of sexualized violence, the decision left the ICC without a single conviction for sexualized violence 20 years after the adoption of the ICC Statute. While the number of convictions in and of itself is not indicative of an international criminal court’s success,313 it is striking that despite the attention awarded to sexualized violence in conflict scenarios since the 1990s, the Court has not managed to secure any final conviction.314 Despite these setbacks, the ICC’s practice with regard to sexualized crimes has advanced throughout the first two decades of its existence.315 As of 2018, 16 out of the 26 cases brought before the ICC contained charges of sexualized violence.316 Out of the seven specific sexualized and gender-based crimes in the ICC Statute—rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, any other form of sexual violence, and gender-based persecution—five have now been part of ICC trials. On 8 July 2019, Trial Chamber VI found Bosco Ntaganda guilty of rape and sexual slavery as war crimes and crimes against humanity, among other crimes.317 Perhaps the most significant aspect of this decision is its categorization of intra-party sexualized violence as war crimes. Ntaganda was convicted for rape and sexual slavery of forcibly recruited child soldiers as war crimes in non-international armed conflict.318 In an interlocutory appeal, the Appeals Chamber had found that nothing in the ICC Statute or the established framework of international law excluded members of an armed group from protection against acts committed by members of the same armed group.319 While the potentially broad scope of this decision and the apparent detachment of international criminal law from international humanitarian law have been criticized,320 its practical implications for victims of sexualized violence are groundbreaking. The approach put forward by the Appeals Chamber unequivocally allows for the prosecution of intra-party sexualized violence as war crimes, which closes an accountability gap in international criminal law.321 Furthermore, two current cases contain multiple charges of sexualized and genderbased violence. Former LRA commander Dominic Ongwen was recently convicted for rape, sexual slavery, and forced pregnancy (as crimes against humanity and war crimes) as well as the other inhumane act of forced marriage (as a crime 313 On

“success” in prosecuting gender-based crimes, see Grey 2019, pp 30–36. also Chappell 2016, pp 104–106; Schwarz 2019, p 24; Steinl 2018. 315 For an overview on the ICC’s cases dealing with sexualized and gender-based violence, see Grey 2019, pp 123–246. 316 Women’s Initiatives for Gender Justice 2018, p 42. 317 Ntaganda 2019, above n 19. See generally Grey 2019, pp 142–148. 318 Ntaganda 2019, above n 19, paras 964–986. 319 ICC, Prosecutor v Bosco Ntaganda, Judgment on the Appeal of Mr Ntaganda Against the “Second Decision on the Defence’s Challenge to the Jurisdiction of the Court in Respect of Counts 6 and 9”, 15 June 2017, ICC-01/04-02/06 OA5. 320 See Heller 2017; Kenny and McDermott 2019, pp 945–960. 321 See also Frivet 2019, pp 64–66; Grey 2019, pp 274–278; Longobardo 2019. 314 See

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against humanity);322 out of the 70 charges that were confirmed against Ongwen, 19 concerned sexual and gender-based crimes. The Ongwen case has been deemed one of the most innovative ICC cases relating to gender-based crimes to date.323 Moreover, the trial against Al Hassan Ag Abdoul Aziz, which opened on 14 July 2020, includes rape and sexual slavery (as crimes against humanity and war crimes) as well as persecution on the grounds of gender and the inhumane act of forced marriage (as crimes against humanity).324 After the respective charge was withdrawn in the case against Mbarushimana, this will be the ICC’s first opportunity to address the crime of gender-based persecution.325 This crime is also part of the Afghanistan investigation326 and the Nigeria preliminary examination.327 These progressive developments were based not least on recent prosecutorial efforts towards a higher effectiveness of investigations and prosecutions, as manifested in the 2014 Policy Paper on Sexual and Gender-Based Crimes. In this Policy Paper, the Prosecutor delineated her intention to charge sexual and gender-based crimes as different categories of crimes (genocide, crimes against humanity, and war crimes) in order to capture the different context and nature of their commission.328 Further, she stated that such charges would be brought cumulatively “in order to reflect the severity and multifaceted character of these crimes fairly”, both “explicitly as crimes per se” and “as forms of other violence” (for example rape as torture).329 Most importantly, the Policy Paper conveys the unambiguous message that sexual and gender-based crimes are to be afforded the highest priority during investigations and prosecutions. While it cannot remedy past mistakes, the adoption of the Policy Paper has noticeably and positively influenced the ICC’s practice.

2.4.6 Other International and Hybrid Courts Other international and internationalized criminal courts, which were established after the International Criminal Court, have also dealt with sexualized crimes.

322 ICC,

Prosecutor v Dominic Ongwen, Judgment, 4 February 2021, ICC-02/04-01/15 (Ongwen 2021); ICC, Prosecutor v Dominic Ongwen, Decision on the Confirmation of Charges, 23 March 2016, ICC-02/04-01/15 (Ongwen 2016), paras 86–140. 323 See Grey 2019, p 171, highlighting that the case concerns several non-sexualized gender-based crimes, namely acts of forced pregnancy and forced marriage. 324 ICC, Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Decision on the Confirmation of the Charges, 30 September 2019, ICC-01/12-01/18, counts 8–13. 325 See Grey et al. 2019, pp 975–977; Grey 2019, pp 278–283. See also Hall et al. 2016, marginal no 83; Kappler 2019, pp 137–140. 326 ICC, Situation in the Islamic Republic of Afghanistan, Prosecutor’s Request for Authorisation of an Investigation, 20 November 2017, ICC-02/17, paras 115–121. 327 The Office of the Prosecutor of the International Criminal Court 2019, paras 186–187. 328 The Office of the Prosecutor of the International Criminal Court 2014, para 73. 329 Ibid., para 72.

2.4 International Criminal Law

2.4.6.1

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The Special Court for Sierra Leone

In response to the conflict in Sierra Leone,330 an agreement between the government and the United Nations established the Special Court for Sierra Leone (SCSL) in 2002.331 The provisions on sexualized crimes were largely modelled after the ICC Statute. In slight deviation from the ICC Statute, the Special Court’s Statute extends to “rape, sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence” as crimes against humanity, omitting enforced sterilization,332 as well as rape and enforced prostitution as war crimes in non-international armed conflicts.333 However, the Statute fails to characterize other forms of sexualized violence as “other serious violations of international humanitarian law”334 and does not extend to gender-based persecution.335 Out of the thirteen defendants before the Court, ten were charged with sexualized violence as war crimes and crimes against humanity and six with the crime against humanity of forced marriage (as an inhumane act).336 The Special Court convicted seven persons for crimes including sexualized violence337 and three persons for forced marriage.338 The Special Court’s most significant contribution in this regard lay in its jurisprudence on the phenomenon of “forced marriages”. In the case against Alex Tamba Brima and others, the Trial Chamber originally viewed charges of forced marriage as subsumed under the crime against humanity of sexual slavery.339 The Appeals Chamber later held that forced marriage was a crime against humanity of “other inhumane acts” distinct from sexual slavery, because it encompasses not only sexual aspects and thus constitutes a gender-based crime that is not (solely) sexualized in nature.340 The Office of the Prosecutor at the ICC has followed this example

330 For

the historical background, see generally Werle and Vormbaum 2018, pp 181–182. Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 2178 UNTS 137, 16 January 2002 (SCSL Statute). 332 Ibid., Article 2(g). 333 Ibid., Article 3(e). 334 Ibid., Article 4; see also Schwarz 2019, p 127. 335 SCSL Statute, above n 331, Article 2(h). 336 See Oosterveld 2009, p 408. 337 Charles Taylor; Issa Hassan Sesay, Morris Kallon, Augustine Gbao (so-called RUF case); Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (so-called AFRC case). Two other accused died, one currently remains at large. 338 Issa Hassan Sesay, Morris Kallon, Augustine Gbao (RUF case). The three accused in the AFRC case were acquitted of the charge of forced marriage. 339 Special Court for Sierra Leone, Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Judgment, 20 June 2007, SCSL-04-16-T, para 713. 340 Special Court for Sierra Leone, Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Appeals Judgment, 22 February 2008, SCSL-2004-16-A, paras 175–203; see also Oosterveld 2009, pp 413–418; Schwarz 2019, pp 127–128, 358–360. 331 Agreement

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by charging forced marriage as a separate crime against humanity of “other inhumane acts” in two recent cases; this approach was confirmed in the Ongwen trial judgment.341 However, the Trial Chamber of the Special Court for Sierra Leone adopted an alternate approach in the case against Charles Taylor by dismissing the terminology of “forced marriage” entirely. This had been one of the strongest points of criticism against the Special Court’s earlier approach: The term “marriage” was seen as misleading, because there was no actual marriage involved.342 Instead, it described the phenomenon of “bush wives” as “forced conjugal association” and “conjugal slavery”. According to the judges, while “conjugal slavery” combines elements of sexual slavery and forced labour, it is not a new crime; rather, it should be conceptualized as a distinctive form of sexual slavery.343 Regardless of the categorization as a distinct crime or as a form of sexual slavery, the Special Tribunal’s jurisprudence has played an important role in prosecuting and punishing “forced marriage” or “conjugal slavery”, setting a valuable precedent for the International Criminal Court and other tribunals.

2.4.6.2

Other Courts

Pertaining to the conflict in East Timor, the United Nations Transitional Administration in East Timor (UNTAET) set up the Special Panels for Serious Crimes in the Courts of Dili. With respect to sexualized crimes under international law, the Statute of the Panels followed the example of the ICC, thus covering a broad range of acts as crimes against humanity and war crimes.344 Similarly, the proposed Statute for the African Criminal Court copies the relevant provisions on sexualized violence of the ICC Statute.345 The Law on the Specialist Chambers and Specialist Prosecutor’s Office in Kosovo slightly deviates from the ICC Statute by excluding forced sterilization and genderbased persecution from the crimes against humanity provision, but replicating all other crimes.346 Similarly, the Statute of the Extraordinary African Chambers, a 341 Ongwen

2021, above n 322, paras 2748–2752; ICC, Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Warrant of Arrest, 27 March 2018, ICC-01/12-01/18. 342 See Oosterveld 2012, p 21. 343 Special Court for Sierra Leone, Prosecutor v Charles Ghankay Taylor, Judgment, 18 May 2012, SCSL-03-01-T, paras 424–430. 344 Statute of the Special Panels for Serious Crimes in the Courts of Dili, Regulation no. 2000/15 on the Establishment of Panels With Exclusive Jurisdiction Over Serious Criminal Offences, UN Doc. UNTAET/REG/2000/15, 6 June 2000, Section 5.1(g) and (h) (crimes against humanity), Section 6.1(b)(xxii) and (e)(vi) (war crimes). The Special Panels concluded their operations in 2005. 345 Malabo Protocol, above n 279, Article 28C(1)(g) and (h) (crimes against humanity), Article 28D(b)(xxiii) and (e)(vi) (war crimes). The Malabo Protocol has not yet received any ratifications and has thus not entered into force. 346 Law no. 05/L-053 by the Assembly of Republic of Kosovo on Specialist Chambers and

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hybrid court established in Senegal to try Hissène Habré, excludes forced pregnancy from the crimes against humanity provision347 and explicitly covers only rape and enforced prostitution as war crimes.348 In contrast, the only explicit mention of sexualized violence in the Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia (ECCC) is rape as a crime against humanity.349 The lack of investigation and charges relating to sexualized and gender-based crimes, particularly in the ECCC’s early cases, has elicited harsh criticism.350

2.4.7 Summary The previous subsections have dealt with the development of international criminal law relating to sexualized violence. In conclusion, there has certainly been progress in the criminalization of this type of violence. This progress was triggered by the documentation of sexualized violence in certain conflicts, which put pressure on the international community to find ways to prosecute and punish such conduct. Today, sexualized crimes play an important role before international criminal courts, although shortcomings in the effective prosecution of these crimes remain blatantly visible.

2.5 International Human Rights Law Apart from being a violation of the laws of war and an international crime, conflictrelated sexualized violence is also a violation of internationally recognized human rights. No universal or regional human rights instruments specifically apply to conflict situations; however, their applicability is not restricted to times of peace either. Thus, provisions in all human rights instruments pertaining to sexualized violence are relevant in the present context.

Specialist Prosecutor’s Office, 3 August 2015, Article 13(1)(g) (crimes against humanity), Article 14(1)(b)(xxii) and (d)(vi) (war crimes). Somewhat curiously, enforced sterilization does appear in the war crimes provisions, but not as a crime against humanity. 347 Accord Entre le Gouvernement de la République du Sénégal et l’Union Africaine sur la Création de Chambres Africaines Extraordinaires au Sein des Juridictions Sénégalaises, 22 August 2012, Article 6(a). The Statute also does not extend to persecution, including gender-based persecution. 348 Ibid., Article 7(2)(e). 349 Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, 10 August 2001, with inclusion of amendments as promulgated on 27 October 2004, NS/RKM/1004/006, Article 5. 350 See Elander 2016, pp 166–167; Oosterveld and Sellers 2016; Schwarz 2019, pp 128–131; Studzinsky 2013.

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2.5.1 Human Rights Instruments Focusing on the Protection of Women There are several human rights instruments dealing with the protection of women, though not all of these explicitly prohibit sexualized violence or other forms of gender-based violence. At the United Nations level, the most important instrument is the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) of 1979.351 It does not explicitly prohibit any acts of violence, because the original understanding of “discrimination” did not extend to violence352 and its inclusion was politically contested.353 However, the Committee on the Elimination of Discrimination against Women (CEDAW Committee), which is responsible for monitoring the implementation of the Convention, later issued recommendations specifically labelling gender-based violence as discriminatory acts which “seriously inhibit women’s ability to enjoy rights and freedoms on a basis of equality with men”,354 and thus as a human rights violation.355 Other instruments specifically address violence against women, such as the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) of 2011,356 which prohibits sexual violence357 as well as many other forms of gender-based violence such as forced marriage,358 forced abortion, and forced sterilization.359 Further examples include the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará) of 1994360 and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) of 2003.361 351 CEDAW

Convention, above n 232. Askin 1997, p 232; McQuigg 2018, pp 306–307. 353 See De Brouwer et al. 2013, p 4, footnote 2. 354 United Nations Committee on the Elimination of Discrimination Against Women 1993, para 1, repeated and expanded in United Nations Committee on the Elimination of Discrimination Against Women 2017. See also Gardam and Jarvis 2001, p 146; McQuigg 2018, pp 307–308. 355 See Askin 1997, p 234; Otto 2019, p 360 (see also pp 360–363 on the other UN treaty bodies); see also McQuigg 2018, p 309 (calling for the adoption of a specific United Nations treaty on violence against women). 356 Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, opened for signature 11 May 2011, CETS no. 210 (entered into force 1 August 2014) (Istanbul Convention). 357 Ibid., Article 36. 358 Ibid., Article 37. 359 Ibid., Article 39. 360 Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, opened for signature 9 June 1994, Organization of American States A-61 (entered into force 3 March 1995). See also Askin 1997, p 238. 361 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, opened for signature 11 July 2003 (entered into force 25 November 2005), specifically referring to the protection of women in armed conflicts, e.g. against all forms of violence, in Article 11. 352 See

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While these instruments obligate state parties to protect women, sexualized violence is also committed against men and boys.362 Though human rights instruments do not specifically address these violations, general provisions such as the prohibition of torture and cruel, inhuman or degrading treatment363 also cover many types of sexualized violence, regardless of the victim’s gender.364

2.5.2 Soft Law on Sexualized Violence In addition to these binding provisions in several human rights treaties, numerous soft law instruments focus on sexualized violence. For example, the United Nations Declaration on the Elimination of Violence against Women of 1993 prohibits many specific manifestations of sexualized violence as well as other forms of gender-based violence.365 Preceding this declaration, the United Nations held a World Conference on Human Rights in Vienna in June 1993, where the Vienna Declaration and Programme of Action was adopted. This instrument condemns any type of violence against women,366 specifically addressing conflict situations: Violations of the human rights of women in situations of armed conflict are violations of the fundamental principles of international human rights and humanitarian law. All violations of this kind, including in particular murder, systematic rape, sexual slavery, and forced pregnancy, require a particularly effective response.367

Two years later, at the Fourth World Conference on Women hosted by the United Nations, the Beijing Declaration and Platform for Action was adopted. The Platform for Action contains detailed provisions condemning violence against women368 and encompasses provisions specifically relating to the situation of women in armed conflicts.369 In particular, the Platform for Action addresses acts of violence including “violation[s] of the human rights of women in situations of armed conflict, in particular murder, systematic rape, sexual slavery and forced pregnancy”370 as well as 362 See

this chapter, Sect. 2.2.1.2. European Convention on Human Rights, opened for signature 4 November 1950, ETS no. 005 (entered into force 3 September 1953), Article 3; International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976), Article 7; United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987). 364 See Gaggioli 2014, p 521. 365 United Nations General Assembly 1993. See also Askin 1997, pp 237–238; Otto 2019, p 359. 366 Vienna Declaration and Programme of Action, 25 June 1993 (Vienna Declaration), I para 18, II para 38. 367 Ibid., II para 38. See also ibid., I para 28, condemning systematic rape in wars. 368 Beijing Declaration and Platform for Action, 15 September 1995 (Beijing Declaration), Declaration para 29, Platform for Action paras 112–130. 369 Ibid., Platform for Action paras 131–149. 370 Ibid., Platform for Action para 114. 363 E.g.,

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“forced sterilization and forced abortion, coercive/forced use of contraceptives, female infanticide and prenatal sex selection”.371 It also contains detailed recommendations on measures governments are to take in order to prevent and eliminate violence against women.372 Five years after the Beijing Declaration and Platform for Action, a follow-up declaration was adopted, which concerned the review of the original declaration’s implementation. With regard to conflict-related violence against women, it states the following: In situations of armed conflict, there are continued violations of human rights of women, which are violations of fundamental principles of international human rights law and international humanitarian law. There has been an increase in all forms of violence against women, including sexual slavery, rape, systematic rape, sexual abuse and forced pregnancies, in situations of armed conflict.373

Furthermore, the United Nations Commission on Human Rights issued yearly resolutions, beginning in 1995, on the elimination of violence against women, in which it condemned all violations of the human rights of women in situations of armed conflict, recognizes them to be violations of international human rights and humanitarian law, and calls for a particularly effective response to violations of this kind, including in particular murder, systematic rape, sexual slavery and forced pregnancy.374

The Human Rights Council, which replaced the UN Commission on Human Rights in 2006, also addressed violence against women in its resolutions, for example stating that it is alarmed that, in situations of armed conflict, women are particularly exposed to various forms of violence, including sexual violence, and recognizing the need to intensify efforts to prevent such violence in accordance with international humanitarian law and human rights law.375

The UN Commission on Human Rights also established the post of a Special Rapporteur on Violence against Women, its Causes and Consequences in 1994, who is mandated to seek and receive information on and recommend measures to eliminate violence against women.376 The Special Rapporteur issues annual reports to the Human Rights Council. 371 Ibid.,

Platform for Action para 115. Platform for Action para 124. 373 Beijing+5, 9 June 2000, Further Actions and Initiatives to Implement the Beijing Declaration and Platform for Action para 19. 374 United Nations Commission on Human Rights 1995, para 5. Similar provisions with slight textual deviations are also present in the subsequent resolutions: United Nations Commission on Human Rights 1996, para 5; United Nations Commission on Human Rights 1997, para 4; United Nations Commission on Human Rights 1998, para 4; United Nations Commission on Human Rights 1999, paras 5–6; United Nations Commission on Human Rights 2001, para 11; United Nations Commission on Human Rights 2002, para 15; United Nations Commission on Human Rights 2003, para 15; United Nations Commission on Human Rights 2004, para 16; United Nations Commission on Human Rights 2005, para 18. 375 United Nations Human Rights Council 2010, preamble para 12. 376 United Nations Commission on Human Rights 1994. 372 Ibid.,

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In sum, many forms of conflict-related violence against women have been recognized as a human rights violation since the 1990s. The current human rights framework clearly prohibits such violence and obligates states to prevent and effectively respond to it, including through prosecution and punishment.

2.6 Conclusion This chapter addressed the international legal framework, namely international humanitarian law, international criminal law, and international human rights law, as regards conflict-related sexualized violence. It was shown that while this type of violence was seen as an unfortunate but natural by-product of war up until the late twentieth century, major progress has been made since the 1990s. This transformation in the conceptualization of conflict-related violence was brought about mainly by the documentation of and close attention paid to such violence in the conflicts in the former Yugoslavia and Rwanda. Since then, an elaborate legal framework concerning conflict-related sexualized violence was developed and consolidated. The adoption of the ICC Statute was a particularly significant step in this regard. However, shortcomings concerning the implementation of this framework persist.

References Adams A (2013) Der Tatbestand der Vergewaltigung im Völkerstrafrecht. Duncker & Humblot, Berlin Ahram AI (2015) Sexual Violence and the Making of ISIS. Survival 57(3):57–78 Allen B (1996) Rape Warfare: The Hidden Genocide in Bosnia-Herzegovina and Croatia. University of Minnesota Press, Minneapolis/London Ambos K (2017) Genocide (Article 28B), Crimes Against Humanity (Article 28C), War Crimes (Article 28D) and the Crime of Aggression (Article 28M). In: Werle G, Vormbaum M (eds) The African Criminal Court. T.M.C. Asser Press, The Hague, pp 31–55 Anderson L (2010) Politics by Other Means: When Does Sexual Violence Threaten International Peace and Security? International Peacekeeping 17:244–260 Askin KD (1997) War Crimes Against Women: Prosecution in International War Crimes Tribunals. Martinus Nijhoff, The Hague Askin KD (1999) Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status. The American Journal of International Law 93:97–123 Askin KD (2003a) Prosecuting Wartime Rape and Other Gender-Related Crimes Under International Law: Extraordinary Advances, Enduring Obstacles. Berkeley Journal of International Law 21:288–349 Askin KD (2003b) The Quest for Post-Conflict Gender Justice. Columbia Journal of Transnational Law 41:509–521 Askin KD (2004) A Decade of the Development of Gender Crimes in International Courts and Tribunals: 1993 to 2003. Human Rights Brief 11(3):16–19

68

2 The Foundation: Sexualized Violence in International Law

Askin KD (2013) Treatment of Sexual Violence in Armed Conflicts: A Historical Perspective and the Way Forward. In: De Brouwer A-MLM, Ku C, Römkens R, van den Herik L (eds) Sexual Violence as an International Crime: Interdisciplinary Approaches. Intersentia, Cambridge, pp 19–55 Bassiouni MC (2011) Crimes Against Humanity: Historical Evolution and Contemporary Application. Cambridge University Press, Cambridge Bassiouni MC, Manikas P (1996) The Law of the International Criminal Tribunal for the Former Yugoslavia. Transnational Publishers, Irvington-on-Hudson, N.Y. Bassiouni MC, McCormick M (1996) Sexual Violence: An Invisible Weapon of War in the Former Yugoslavia. DePaul University, Chicago Bedont B (1999) Gender-Specific Provisions in the Statute of the International Criminal Court. In: Lattanzi F, Schabas WA (eds) Essays on the Rome Statute of the International Criminal Court, vol 1. Il Sirenze, Ripa di Fagnano Alto, pp 183–210 Bensouda F (2007) Gender and Sexual Violence Under the Rome Statute. In: Decaux E, Dieng A, Sow M (eds) From Human Rights to International Criminal Law / Des droits de l’homme au droit international pénal: Studies in Honour of an African Jurist, the Late Judge Laïty Kama/Etudes en l’honneur d’un juriste africain, feu le juge Laïty Kama. Brill, Leiden, pp 401–418 Biehler A (2015) Das Vergewaltigungsverbot im bewaffneten Konflikt. Duncker & Humblot, Berlin Birckenbach H-M (1993) Das Verbrechen beschreiben, analysieren und ihm vorbeugen: Zur Vergewaltigung im Krieg aus der Sicht der Friedensforschung. In: Stiglmayer A (ed) Massenvergewaltigung: Krieg gegen die Frauen. Kore, Freiburg, pp 233–245 Bock S (2010) Das Opfer vor dem Internationalen Strafgerichtshof. Duncker & Humblot, Berlin Boister N, Cryer R (eds) (2008) Documents on the Tokyo International Military Tribunal: Charter, Indictment and Judgments. Oxford University Press, Oxford Boon K (2000) Rape and Forced Pregnancy Under the ICC Statute: Human Dignity, Autonomy, and Consent. Columbia Human Rights Law Review 32:625–675 Brownmiller S (1975) Against Our Will: Men, Women and Rape. Simon & Schuster, New York Campanaro J (2001) Women, War, and International Law: The Historical Treatment of GenderBased War Crimes. The Georgetown Law Journal 89:2557–2592 Carpenter RC (2006) Recognizing Gender-Based Violence Against Civilian Men and Boys in Conflict Situations. Security Dialogue 37:83–103 Carpenter RC (2010) Forgetting Children Born of War: Setting the Human Rights Agenda in Bosnia and Beyond. Columbia University Press, New York Chappell LA (2016) The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy. Oxford University Press, New York Charlesworth H, Chinkin C (2000) The Boundaries of International Law: A Feminist Analysis. Manchester University Press, Manchester Chinkin C (1994) Rape and Sexual Abuse of Women in International Law. European Journal of International Law 5:326–341 Chinkin C (2009) Gender-Related Violence and International Criminal Justice. In: Cassese A (ed) The Oxford Companion to International Criminal Justice. Oxford University Press, Oxford, pp 75–81 Cockburn C (2004) The Continuum of Violence: A Gender Perspective on War and Peace. In: Giles W, Hyndman J (eds) Sites of Violence: Gender and Conflict Zones. University of California Press, Berkeley/London, pp 24–44 Cohen DK (2013) Explaining Rape During Civil War: Cross-National Evidence (1980–2009). American Political Science Review 107:461–477 Commission of Experts (1994) Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), Annex to UN Doc. S/1994/674 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties (1920) Report Presented to the Preliminary Peace Conference. The American Journal of International Law 14:95–154

References

69

Coomaraswamy R (2005) Sexual Violence During Wartime. In: Durham H, Gurd T (eds) Listening to the Silences: Women and War. Martinus Nijhoff, Leiden, pp 53–66 Copelon R (1994) Surfacing Gender: Re-Engraving Crimes Against Women in Humanitarian Law. Hastings Women’s Law Journal 5:243–266 Copelon R (2000) Gender Crimes as War Crimes: Integrating Crimes Against Women Into International Criminal Law. McGill Law Journal 46:217–240 Crenshaw K (1989) Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics. University of Chicago Legal Forum 1989:139–167 De Brouwer A-MLM (2005) Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR. Intersentia, Antwerp/Tilburg De Brouwer A-MLM, Ku C, Römkens R, van den Herik L (2013) Interdisciplinary Approaches to Recognizing, Investigating and Prosecuting Sexual Violence as an International Crime. In: De Brouwer A-MLM, Ku C, Römkens R, van den Herik L (eds) Sexual Violence as an International Crime: Interdisciplinary Approaches. Intersentia, Cambridge, pp 3–13 De Brouwer A-MLM, Ruiz L (2019) Male Victims and Female Perpetrators of Sexual Violence in Conflict. In: Mouthaan S, Jurasz O (eds) Gender and War: International and Transitional Justice Perspectives. Intersentia, Cambridge, pp 169–208 deGuzman MM (2016) Article 21. In: Triffterer O, Ambos K (eds) Rome Statute of the International Criminal Court: A Commentary, 3rd edn. C.H. Beck, Munich Dowds E (2020) Feminist Engagement With International Criminal Law: Norm Transfer, Complementarity, Rape and Consent. Hart Publishing, Oxford Drumbl MA (2013) She Makes Me Ashamed to Be a Woman: The Genocide Conviction of Pauline Nyiramasuhuko. Michigan Journal of International Law 34:559–603 Duggan C, Bailey CPyP, Guillerot J (2008) Reparations for Sexual and Reproductive Violence: Prospects for Achieving Gender Justice in Guatemala and Peru. International Journal of Transitional Justice 2:192–213 Durham H (2005) International Humanitarian Law and the Protection of Women. In: Durham H, Gurd T (eds) Listening to the Silences: Women and War. Martinus Nijhoff, Leiden, pp 95–107 Durham H (2012) Women and International Criminal Justice: Steps Forward or Dancing Backwards. In: Boas G, Schabas WA, Scharf MP (eds) International Criminal Justice: Legitimacy and Coherence. Edward Elgar, Cheltenham, pp 254–268 Durham H, O’Byrne K (2010) The Dialogue of Difference: Gender Perspectives on International Humanitarian Law. International Review of the Red Cross 92:31–52 Elander M (2016) Prosecuting the Khmer Rouge Marriages. Australian Feminist Law Journal 42:163–175 Ellis M (2007) Breaking the Silence: Rape as an International Crime. Case Western Reserve Journal of International Law 38:225–247 Engle K (2005) Feminism and its (Dis)Contents: Criminalizing Wartime Rape in Bosnia and Herzegovina. The American Journal of International Law 99:778–816 Eriksson Baaz M, Stern M (2009) Why Do Soldiers Rape? Masculinity, Violence, and Sexuality in the Armed Forces in the Congo (DRC). International Studies Quarterly 53:495–518 Eriksson Baaz M, Stern M (2010) The Complexity of Violence: A Critical Analysis of Sexual Violence in the Democratic Republic of Congo (DRC). Sida Working Paper on Gender Based Violence. https://gsdrc.org/document-library/the-complexity-of-violence-a-critical-analysis-ofsexual-violence-in-the-democratic-republic-of-congo-drc/. Accessed 24 October 2020 Eriksson Baaz M, Stern M (2013) Sexual Violence as a Weapon of War? Perceptions, Prescriptions, Problems in the Congo and Beyond. Zed Books, London Eriksson Baaz M, Stern M (2018) Curious Erasures: The Sexual in Wartime Sexual Violence. International Feminist Journal of Politics 20:295–314 Folnegovi´c-Šmalc V (1993) Psychiatrische Aspekte der Vergewaltigungen: Im Krieg gegen die Republiken Kroatien und Bosnien-Herzegowina. In: Stiglmayer A (ed) Massenvergewaltigung: Krieg gegen die Frauen. Kore, Freiburg, pp 223–231

70

2 The Foundation: Sexualized Violence in International Law

Frivet J (2019) Expanding IHL Through ICL: How Prosecutorial Opportunism and Judicial Activism Redefined Intra-Party SGBV Crimes at the ICC. Humanitäres Völkerrecht 2:53–66 Gaggioli G (2014) Sexual Violence in Armed Conflicts: A Violation of International Humanitarian and Human Rights Law. International Review of the Red Cross 96:503–538 Gardam JG, Charlesworth H (2000) Protection of Women in Armed Conflict. Human Rights Quarterly 22:148–166 Gardam JG, Jarvis MJ (2001) Women, Armed Conflict and International Law. Kluwer Law International, The Hague/London Glasius M (2006) The International Criminal Court: A Global Civil Society Achievement. Routledge, London Global Justice Center (2018) Submission to the International Law Commission: The Need to Integrate a Gender-Perspective Into the Draft Convention on Crimes Against Humanity. https:// www.globaljusticecenter.net/blog/19-publications/1011-submission-to-the-international-lawcommission-the-need-to-integrate-a-gender-perspective-into-the-draft-convention-on-crimesagainst-humanity. Accessed 24 October 2020 Goldstone RJ (2002) Prosecuting Rape as a War Crime. Case Western Reserve Journal of International Law 34:277–286 Green J, Copelon R, Cotter P, Stephens B (1994) Affecting the Rules for the Prosecution of Rape and Other Gender-Based Violence Before the International Criminal Tribunal for the Former Yugoslavia: A Feminist Proposal and Critique. Hastings Women’s Law Journal 5:171–241 Green LC (2008) The Contemporary Law of Armed Conflict, 3rd edn. Manchester University Press, Manchester Greve K (2008) Vergewaltigung als Völkermord: Aufklärung sexueller Gewalt gegen Frauen vor Internationalen Strafgerichten. Nomos, Baden-Baden Grewal K (2010) Rape in Conflict, Rape in Peace: Questioning the Revolutionary Potential of International Criminal Justice for Women’s Human Rights. Australian Feminist Law Journal 33:57–79 Grey R (2019) Prosecuting Sexual and Gender-Based Crimes at the International Criminal Court: Practice, Progress and Potential. Cambridge University Press, Cambridge Grey R (forthcoming) Reproductive Crimes in International Criminal Law. In: Rosenthal I, Oosterveld V, SáCouto S (eds) Gender and International Criminal Law. Oxford University Press, Oxford Grey R, Chappell LA (2019) “Gender-Just Judging” in International Criminal Courts: New Directions for Research. In: Rimmer SH, Ogg K (eds) Research Handbook on Feminist Engagement With International Law. Edward Elgar, Cheltenham/Northampton, pp 213–239 Grey R, O’Donohue J, Rosenthal I, Davis L, Llanta D (2019) Gender-Based Persecution as a Crime Against Humanity: The Road Ahead. Journal of International Criminal Justice 17:957–979 Haer R, Hecker T, Maedl A (2015) Former Combatants on Sexual Violence During Warfare: A Comparative Study of the Perspectives of Perpetrators, Victims, and Witnesses. Human Rights Quarterly 37:609–628 Hall CK, Powderly J, Hayes N (2016) Article 7. In: Triffterer O, Ambos K (eds) Rome Statute of the International Criminal Court: A Commentary, 3rd edn. C.H. Beck, Munich Harbour G (2016) International Concern Regarding Conflict-Related Sexual Violence in the LeadUp to the ICTY’s Establishment. In: Brammertz S, Jarvis MJ (eds) Prosecuting Conflict-Related Sexual Violence at the ICTY. Oxford University Press, Oxford, pp 19–32 Hayes N (2016) Sisyphus Wept: Sexual Violence at the International Criminal Court. In: McDermott Y, Hayes N, Varaki M, Schabas WA (eds) The Ashgate Research Companion to International Criminal Law: Critical Perspectives. Taylor and Francis, London, pp 7–43 Heller KJ (2017) ICC Appeals Chamber Says A War Crime Does Not Have to Violate IHL. Opinio Juris. https://opiniojuris.org/2017/06/15/icc-appeals-chamber-holds-a-war-crime-doesnot-have-to-violate-ihl/. Accessed 24 October 2020 Henry N (2014) The Fixation on Wartime Rape: Feminist Critique and International Criminal Law. Social & Legal Studies 23:93–111

References

71

International Committee of the Red Cross (1958) The Geneva Conventions of 12 August 1949 – Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War. International Committee of the Red Cross, Geneva International Committee of the Red Cross (1987) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949. Martinus Nijhoff Publishers, Geneva International Law Commission (1950) Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal. Yearbook of the International Law Commission 1950(II):374–378 International Law Commission (1951) Draft Code of Offences Against the Peace and Security of Mankind. Yearbook of the International Law Commission 1951(II):133–137 International Law Commission (1954) Draft Code of Offences Against the Peace and Security of Mankind. Yearbook of the International Law Commission 1954(II):112–122 International Law Commission (1991) Draft Code of Crimes Against the Peace and Security of Mankind. Yearbook of the International Law Commission 1991(II/2):94–97 International Law Commission (1994) Draft Statute for an International Criminal Court. Yearbook of the International Law Commission 1994(II/2):26–74 International Law Commission (1996) Draft Code of Crimes Against the Peace and Security of Mankind. Yearbook of the International Law Commission 1996(II/2):17–56 International Law Commission (2019) Report of the International Law Commission: SeventyFirst Session: 29 April–7 June and 8 July–9 August 2019, General Assembly Official Records, Seventy-Fourth Session, Supplement no. 10 (A/74/10), Chap. IV Jarvis MJ, Martin Salgado E (2013) Future Challenges To Prosecuting Sexual Violence Under International Law: Insights From the ICTY Practice. In: De Brouwer A-MLM, Ku C, Römkens R, van den Herik L (eds) Sexual Violence as an International Crime: Interdisciplinary Approaches. Intersentia, Cambridge, pp 101–122 Kappler K (2019) Die Verfolgungen wegen der sexuellen Orientierung und der Geschlechtsidentität als Verbrechen gegen die Menschlichkeit. Nomos, Baden-Baden Kenny C, McDermott Y (2019) The Expanding Protection of Members of a Party’s Own Armed Forces Under International Criminal Law. International and Comparative Law Quarterly 68:943– 976 Labenski SA (2019) Female Perpetrators in the Former Yugoslav Republic and Rwanda: Disrupting Common Understandings. In: Mouthaan S, Jurasz O (eds) Gender and War: International and Transitional Justice Perspectives. Intersentia, Cambridge, pp 41–63 Laverty C (2018) What Lies Beneath? The Turn to Values in International Criminal Legal Discourse. EJIL:Talk! https://www.ejiltalk.org/what-lies-beneath-the-turn-to-values-in-internati onal-criminal-legal-discourse/. Accessed 24 October 2020 Leatherman JL (2011) Sexual Violence and Armed Conflict. Polity, Cambridge Lembke U, Foljanty L (2012) Migration, Flucht und Geschlecht. In: Foljanty L, Lembke U (eds) Feministische Rechtswissenschaft: Ein Studienbuch, 2nd edn. Nomos, Baden-Baden, pp 259–283 Lindsey C (2005) The Impact of Armed Conflict on Women. In: Durham H, Gurd T (eds) Listening to the Silences: Women and War. Martinus Nijhoff, Leiden, pp 21–35 Longobardo M (2019) The Criminalisation of Intra-Party Offences in Light of Some Recent ICC Decisions on Children in Armed Conflict. International Criminal Law Review 19:600–634 MacKinnon CA (1994) Rape, Genocide, and Women’s Human Rights. Harvard Women’s Law Journal 17:5–16 Marczak N (2018) A Century Apart: The Genocidal Enslavement of Armenian and Yazidi Women. In: Connellan MM, Fröhlich C (eds) A Gendered Lens for Genocide Prevention. Palgrave Macmillan UK, London, pp 133–162 Markard N, Adamietz L (2008) Herausforderungen an eine Zeitgenössische Feministische Menschenrechtspolitik am Beispiel Sexualisierter Kriegsgewalt. Kritische Justiz 41:257–265 Maxwell C (2010) Moving Beyond Rape as a “Weapon of War”: An Exploration of Militarized Masculinity and its Consequences. Canadian Woman Studies 28(1):108–120

72

2 The Foundation: Sexualized Violence in International Law

McQuigg RJA (2018) Is it Time for a UN Treaty on Violence Against Women? The International Journal of Human Rights 22:305–324 Meron T (1993a) Henry’s Wars and Shakespeare’s Laws: Perspectives on the Law of War in the Later Middle Ages. Clarendon Press, Oxford Meron T (1993b) Rape as a Crime Under International Humanitarian Law. The American Journal of International Law 87:424–428 Möller C (2001) Sexuelle Gewalt im Krieg. In: Hasse J, Müller E, Schneider P (eds) Humanitäres Völkerrecht: Politische, rechtliche und strafgerichtliche Dimensionen. Nomos, Baden-Baden, pp 280–303 Moshan BS (1998) Women, War, and Words: The Gender Component in the Permanent International Criminal Court’s Definition of Crimes Against Humanity. Fordham International Law Journal 22:154–184 Myrttinen H (2018) Men, Masculinities and Genocide. In: Connellan MM, Fröhlich C (eds) A Gendered Lens for Genocide Prevention. Palgrave Macmillan UK, London, pp 27–47 Niarchos CN (1995) Women, War, and Rape: Challenges Facing the International Tribunal for the Former Yugoslavia. Human Rights Quarterly 17:649–690 Nordås R (2013) Preventing Conflict-Related Sexual Violence, PRIO Policy Brief no. 2. https:// www.files.ethz.ch/isn/159632/Nordas-Preventing-Conflict-related-Sexual-Violence-PRIO-Pol icy-Brief-02-2013.pdf. Accessed 24 October 2020 Odio-Benito E (2005) Sexual Violence as a War Crime. In: Fernández Sánchez PA (ed) The New Challenges of Humanitarian Law in Armed Conflicts: In Honour of Professor Juan Antonio Carrillo-Salcedo. Martinus Nijhoff, Leiden, pp 163–173 Office of the Prosecutor for the International Criminal Tribunal for Rwanda (2014) Prosecution of Sexual Violence: Best Practices Manual for the Investigation and Prosecution of Sexual Violence Crimes in Post-Conflict Regions. https://unictr.irmct.org/sites/unictr.org/files/legal-lib rary/140130_prosecution_of_sexual_violence.pdf. Accessed 24 October 2020 Oosterveld V (2005) The Definition of “Gender” in the Rome Statute of the International Criminal Court: A Step Forward or Back for International Criminal Justice? Harvard Human Rights Journal 18:55–84 Oosterveld V (2009) Lessons From the Special Court for Sierra Leone on the Prosecution of GenderBased Crimes. American University Journal of Gender, Social Policy & the Law 17:407–430 Oosterveld V (2012) Gender and the Charles Taylor Case at the Special Court for Sierra Leone. William & Mary Journal of Race, Gender, and Social Justice 19:7–33 Oosterveld V (2014) Constructive Ambiguity and the Meaning of “Gender” for the International Criminal Court. International Feminist Journal of Politics 16:563–580 Oosterveld V (2018) The ICC Policy Paper on Sexual and Gender-Based Crimes: A Crucial Step for International Criminal Law. William & Mary Journal of Race, Gender, and Social Justice 24:443–457 Oosterveld V, Sellers PV (2016) Issues of Sexual and Gender-Based Violence at the ECCC. In: Meisenberg SM, Stegmiller I (eds) The Extraordinary Chambers in the Courts of Cambodia: Assessing Their Contribution to International Criminal Law. T.M.C. Asser Press, The Hague, pp 321–351 Otto D (2019) Gender, Violence and Human Rights. In: Shepherd LJ (ed) Handbook on Gender and Violence. Edward Elgar, Cheltenham/Northampton, pp 357–376 Peters A (2007) Völkerrecht im Gender-Fokus. In: Zimmermann A, Giegerich T (eds) Gender und Internationales Recht. Duncker & Humblot, Berlin, pp 199–299 Plesch D (2017) Human Rights After Hitler: The Lost History of Prosecuting Axis War Crimes. Georgetown University Press, Washington D.C. Plesch D, SáCouto S, Lasco C (2014) The Relevance of the United Nations War Crimes Commission to the Prosecution of Sexual and Gender-Based Crimes Today. Criminal Law Forum 25:349–381 Rayfuse R (1997) The Draft Code of Crimes Against the Peace and Security of Mankind: Eating Disorders at the International Law Commission. Criminal Law Forum 8:43–86

References

73

Rose E (2015) A Feminist Reconceptualisation of Intimate Partner Violence Against Women: A Crime Against Humanity and a State Crime. Women’s Studies International Forum 53:31–42 Russell-Brown SL (2003) Rape as an Act of Genocide. Berkeley Journal of International Law 21:350–374 Schabas W (2009) Genocide in International Law: The Crime of Crimes, 2nd edn. Cambridge University Press, Cambridge Schadendorf S (2013) Sexuelle Gewalt im Bewaffneten Konflikt – Zeit für eine Änderung des Humanitären Völkerrechts. JuWiss. https://www.juwiss.de/sexuelle-gewalt-im-bewaffneten-kon flikt-zeit-fur-eine-anderung-des-humanitaren-volkerrechts/. Accessed 24 October 2020 Schwarz A (2019) Das völkerrechtliche Sexualstrafrecht: Sexualisierte und geschlechtsbezogene Gewalt vor dem Internationalen Strafgerichtshof. Duncker & Humblot, Berlin Schwarzenberger G (1968) International Law as Applied by International Courts and Tribunals, vol 2: The Law of Armed Conflict. Stevens & Sons Ltd., London Seibert-Fohr A (2008) Kriegerische Gewalt gegen Frauen: Der Schutz vor sexueller Gewalt im Völkerstrafrecht. In: Hankel G (ed) Die Macht und das Recht: Beiträge zum Völkerrecht und Völkerstrafrecht am Beginn des 21. Jahrhunderts. Hamburger Edition, Hamburg, pp 157–188 Seibert-Fohr A (2009) Prosecuting Serious Human Rights Violations. Oxford University Press, Oxford Seifert R (1993) Krieg und Vergewaltigung: Ansätze einer Analyse. In: Stiglmayer A (ed) Massenvergewaltigung: Krieg gegen die Frauen. Kore, Freiburg, pp 85–108 Sharlach L (2000) Rape as Genocide: Bangladesh, the Former Yugoslavia, and Rwanda. New Political Science 22:89–102 Sivakumaran S (2007) Sexual Violence Against Men in Armed Conflict. European Journal of International Law 18:253–276 Skjelsbaek I (2001) Sexual Violence and War: Mapping Out a Complex Relationship. European Journal of International Relations 7:211–237 Special Rapporteur of the Commission on Human Rights (1993) Report on the Situation of Human Rights in the Territory of the Former Yugoslavia, Pursuant to Commission Resolution 1992/S-1/1 of 14 August 1992, UN Doc. E/CN.4/1993/50 Stahn C (2014) Justice Delivered or Justice Denied? The Legacy of the Katanga Judgment. Journal of International Criminal Justice 12:809–834 Steains C (1999) Gender Issues. In: Lee RS (ed) The International Criminal Court, vol 1: The Making of the Rome Statute: Issues, Negotiations, Results. Kluwer Law International, The Hague/London, pp 357–390 Steinl L (2018) Of Rhetoric and Reality: The Nobel Peace Prize and Conflict-Related Sexualized Violence. Verfassungsblog. https://verfassungsblog.de/of-rhetoric-and-reality-the-nobelpeace-prize-and-conflict-related-sexualized-violence/. Accessed 24 October 2020 Stiglmayer A (1993) Vergewaltigungen in Bosnien-Herzegowina. In: Stiglmayer A (ed) Massenvergewaltigung: Krieg gegen die Frauen. Kore, Freiburg, pp 109–217 Studzinsky S (2013) Victims of Sexual and Gender-Based Crimes Before the Extraordinary Chambers in the Courts of Cambodia: Challenges of Rights to Participation and Protection. In: De Brouwer A-MLM, Ku C, Römkens R, van den Herik L (eds) Sexual Violence as an International Crime: Interdisciplinary Approaches. Intersentia, Cambridge, pp 173–186 The Office of the Prosecutor of the International Criminal Court (2014) Policy Paper on Sexual and Gender-Based Crimes. https://www.icc-cpi.int/iccdocs/otp/OTP-Policy-Paper-on-Sexualand-Gender-Based-Crimes--June-2014.pdf. Accessed 24 October 2020 The Office of the Prosecutor of the International Criminal Court (2019) Report on Preliminary Examination Activities 2019. https://www.icc-cpi.int/itemsDocuments/191205-rep-otp-PE.pdf. Accessed 24 October 2020 United Nations Commission for the Investigation of War Crimes (1943) Notes of Unofficial Preliminary Meeting Held at 2.30 p.m. on the 26th October, 1943, at the Royal Courts of Justice, London. https://www.legal-tools.org/en/doc/ad8990/. Accessed 24 October 2020

74

2 The Foundation: Sexualized Violence in International Law

United Nations Commission on Human Rights (1994) Resolution 1994/45 Question of Integrating the Rights of Women Into the Human Rights Mechanisms of the United Nations and the Elimination of Violence Against Women, UN Doc. E/CN.4/RES/1994/45 United Nations Commission on Human Rights (1995) Resolution 1995/85 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/1995/85 United Nations Commission on Human Rights (1996) Resolution 1996/49 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/1996/49 United Nations Commission on Human Rights (1997) Resolution 1997/44 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/1997/44 United Nations Commission on Human Rights (1998) Resolution 1998/52 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/1998/52 United Nations Commission on Human Rights (1999) Resolution 1999/42 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/1999/42 United Nations Commission on Human Rights (2001) Resolution 2001/49 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/2001/49 United Nations Commission on Human Rights (2002) Resolution 2002/52 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/2002/52 United Nations Commission on Human Rights (2003) Resolution 2003/45 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/2003/45 United Nations Commission on Human Rights (2004) Resolution 2004/46 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/2004/46 United Nations Commission on Human Rights (2005) Resolution 2005/41 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/2005/41 United Nations Committee on the Elimination of Discrimination Against Women (1993) General Recommendation no. 19: Violence Against Women, General Assembly Official Records, FortySeventh Session, Supplement no. 38 (A/47/38) United Nations Committee on the Elimination of Discrimination Against Women (2017) General Recommendation no. 35 on Gender-Based Violence Against Women, Updating General Recommendation no. 19, UN Doc. CEDAW/C/GC/35 United Nations Economic and Social Council (1996) Report on the Situation of Human Rights in Rwanda Submitted by Mr. René Degni-Ségui, Special Rapporteur of the Commission on Human Rights, Under Paragraph 20 of Resolution S-3/1 of 25 May 1994, UN Doc. E/CN.4/1996/68 United Nations General Assembly (1946) Resolution 95(I), UN Doc. A/RES/95(I) United Nations General Assembly (1947) Resolution 177(II), UN Doc. A/RES/177(II) United Nations General Assembly (1954) Resolution 897(IX), UN Doc. A/RES/897(IX) United Nations General Assembly (1981) Resolution 36/106, UN Doc. A/RES/36/106 United Nations General Assembly (1993) Declaration on the Elimination of Violence Against Women, UN Doc. A/RES/48/104 United Nations Human Rights Council (2010) Resolution 14/12 Accelerating Efforts to Eliminate all Forms of Violence Against Women: Ensuring Due Diligence in Prevention, UN Doc. A/HRC/RES/14/12 United Nations Human Rights Council (2016) “They Came to Destroy”: ISIS Crimes Against the Yazidis, UN Doc. A/HRC/32/CRP.2 United Nations Security Council (1993) Resolution 827, UN Doc. S/RES/827 United Nations Security Council (1994) Resolution 955, UN Doc. S/RES/955 United Nations Security Council (2000) Resolution 1325 (2000), UN Doc. S/RES/1325 United Nations Security Council (2008) Resolution 1820 (2008), UN Doc. S/RES/1820 United Nations Security Council (2009a) Resolution 1888 (2009), UN Doc. S/RES/1888 United Nations Security Council (2009b) Resolution 1889 (2009), UN Doc. S/RES/1889 United Nations Security Council (2010) Resolution 1960 (2010), UN Doc. S/RES/1960 United Nations Security Council (2013a) Resolution 2106 (2013), UN Doc. S/RES/2106 United Nations Security Council (2013b) Resolution 2122 (2013), UN Doc. S/RES/2122 United Nations Security Council (2015) Resolution 2242 (2015), UN Doc. S/RES/2242

References

75

United Nations Security Council (2016) Resolution 2331 (2016), UN Doc. S/RES/2331 United Nations Security Council (2017) Report of the Secretary-General on Conflict-Related Sexual Violence, UN Doc. S/2017/249 United Nations Security Council (2018) Report of the Secretary-General on Conflict-Related Sexual Violence, UN Doc. S/2018/250 United Nations Security Council (2019a) Conflict-Related Sexual Violence: Report of the SecretaryGeneral, UN Doc. S/2019/280 United Nations Security Council (2019b) Resolution 2467 (2019), UN Doc. S/RES/2467 United Nations Security Council (2019c) Resolution 2493 (2019), UN Doc. S/RES/2493 United Nations War Crimes Commission (1943a) Notes of a Second Unofficial Meeting Held on 2nd December, 1943, at 3 p.m. at the Royal Courts of Justice, London. https://www.legal-tools. org/en/doc/3e7e05/. Accessed 24 October 2020 United Nations War Crimes Commission (1943b) Report of the Sub-Committee as Adopted on 2nd December, 1943. https://www.legal-tools.org/en/doc/4cb3b4/. Accessed 24 October 2020 United Nations War Crimes Commission (1947–1949) Law Reports of Trials of War Criminals. His Majesty’s Stationery Office, London Verrall S (2016) The Picture of Sexual Violence in the Former Yugoslavia as Reflected in ICTY Judgments. In: Brammertz S, Jarvis MJ (eds) Prosecuting Conflict-Related Sexual Violence at the ICTY. Oxford University Press, Oxford, pp 299–334 Vest H, Sutter U (2014) Art. 264a lit. g. In: Vest H, Ziegler AR, Lindenmann J, Wehrenberg S (eds) Die völkerstrafrechtlichen Bestimmungen des StGB: Kommentar zu Art. 101, 259, 260bis und 264–264n. Dike/Nomos, Zürich/Baden-Baden Vojdik VK (2019) Towards a Gender Analysis of Sexual Violence Against Men and Boys in Conflict: Incorporating Masculinities Theory Into Feminist Theories of Sexual Violence Against Women. In: Mouthaan S, Jurasz O (eds) Gender and War: International and Transitional Justice Perspectives. Intersentia, Cambridge, pp 95–117 von Arnauld A (2006) Feministische Theorien und Völkerrecht. In: Rudolf B (ed) Frauen und Völkerrecht: Zur Einwirkung von Frauenrechten und Fraueninteressen auf das Völkerrecht. Nomos, Baden-Baden, pp 13–45 Vöneky S (2002) Der Lieber’s Code und die Wurzeln des modernen Kriegsvölkerrechts. Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 2002:423–460 Werle G (1997) Menschenrechtsschutz durch Völkerstrafrecht. Zeitschrift für die gesamte Strafrechtswissenschaft 109:808–829 Werle G, Jeßberger F (2020) Völkerstrafrecht, 5th edn. Mohr Siebeck, Tübingen Werle G, Vormbaum M (2018) Transitional Justice: Vergangenheitsbewältigung durch Recht. Springer, Berlin Women’s Initiatives for Gender Justice (2018) Gender Report Card on the International Criminal Court. https://4genderjustice.org/ftp-files/publications/Gender-Report_design-full-WEB. pdf. Accessed 24 October 2020 Wood EJ (2006) Variation in Sexual Violence During War, Politics & Society 34:307–341 Zwingel S (2002) Was trennt Krieg und Frieden? Gewalt gegen Frauen aus feministischer und völkerrechtlicher Perspektive. In: Harders C, Roß B (eds) Geschlechterverhältnisse in Krieg und Frieden: Perspektiven der Feministischen Analyse Internationaler Beziehungen. Leske + Budrich, Opladen, pp 175–188

Chapter 3

Historical Perspectives on Reproductive Violence in International Law

Contents 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 The Factual Background: Conflict-Related Reproductive Violence . . . . . . . . . . . . . . . . . 3.2.1 Historical Overview on Reproductive Violence in Conflict Situations . . . . . . . . . 3.2.2 Reproductive Violence and Children Born of Rape in Conflicts . . . . . . . . . . . . . . 3.2.3 Manifestations and Effects of Conflict-Related Reproductive Violence . . . . . . . . 3.2.4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 International Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.1 The Concept of Reproductive Violence in International Criminal Law . . . . . . . . 3.3.2 Reproductive Violence in Post-World War II Trials . . . . . . . . . . . . . . . . . . . . . . . . 3.3.3 Reproductive Violence in the Genocide Convention . . . . . . . . . . . . . . . . . . . . . . . 3.3.4 Reproductive Violence in the Statutes and Practice of Modern International and Hybrid Criminal Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.5 Reproductive Violence in Legal Scholarship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.6 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 International Human Rights Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.1 Reproductive Rights as Internationally Recognized Human Rights . . . . . . . . . . . 3.4.2 Reproductive Violence as a Human Rights Violation . . . . . . . . . . . . . . . . . . . . . . . 3.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

78 78 78 92 95 96 97 97 99 106 107 112 119 119 120 127 129 129

Abstract This chapter conceptualizes reproductive violence as a distinct form of gender-based violence that is not necessarily committed in a sexualized manner. Its unique characteristic is the underlying violation of reproductive autonomy, understood as the freedom to choose whether, how, and under what circumstances to reproduce. Conflict-related reproductive violence may occur in various manifestations. This includes, for example, forced sterilization as a negative form and forced pregnancy as a positive form of reproductive targeting, which have been documented throughout history. Nevertheless, reproductive violence has rarely been addressed within the international criminal legal discourse. While post-World War II trials set important precedents particularly with regard to the act of forced sterilization, the prosecution of reproductive violence under international law has thus far remained limited to genocidal or similar group-related scenarios. Giving an overview on historical documentations of conflict-related reproductive violence and transferring insights from the discourse on reproductive human rights, this chapter argues that international criminal law and practice should address reproductive violence © t.m.c. asser press and the author 2021 T. Altunjan, Reproductive Violence and International Criminal Law, International Criminal Justice Series 29, https://doi.org/10.1007/978-94-6265-451-8_3

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as a violation of reproductive autonomy independently of its possible collective dimension. Keywords Reproductive violence · Sexualized violence · Gender-based violence · Reproductive autonomy · Forced sterilization · Forced contraception · Forced abortion · Forced pregnancy · Forced impregnation · Forced marriage · Children born of rape · Reproductive rights

3.1 Introduction The previous chapter discussed promising developments concerning conflict-related sexualized violence in the past 30 years. However, while sexualized violence has received much attention since the 1990s, the same does not pertain to other forms of gender-based violence. To date, international law has remained conspicuously silent on a distinct form of gender-based violence that is not necessarily committed in a sexualized manner: violations of reproductive autonomy, or reproductive violence.1 Although reproductive violence has been a prevalent feature of many armed conflicts,2 it has seldom been recognized as a distinct category of gender-based crimes. The legal framework pertaining to these violations remains fragmented. Nevertheless, there is some precedent to the prosecution of reproductive violence in the history of international criminal law. The following sections give an overview on the definition and manifestations of as well as the historical approaches to conflict-related reproductive violence under international law.

3.2 The Factual Background: Conflict-Related Reproductive Violence 3.2.1 Historical Overview on Reproductive Violence in Conflict Situations Various forms of reproductive violence have been documented in conflict situations around the world. The following subsections provide a non-exhaustive overview on some notable examples in order to illustrate the manifestations in which conflictrelated reproductive violence has occurred in the past—and in the present.

1 See 2 See

Chap. 1, Sect. 1.3.3. See also Grey 2017, pp 907–908. generally Askin 2003, p 512.

3.2 The Factual Background: Conflict-Related …

3.2.1.1

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Early Documentations

Though not specifically acknowledged as a distinct category of international crimes or a violation of human rights, conflict-related reproductive violence is all but a new phenomenon. In fact, it was already present in portrayals of ancient warfare. For example, the myth of the founding of Rome is based on the Rape of the Sabine Women. According to the legend, the population of the new-founded city of Rome consisted largely of men. In order to survive for more than one generation, the city was in dire need of women. Romulus, the founder of Rome, instigated a plan to kidnap the women of the Sabines, a neighbouring tribe. The women were then forced into marriages with Roman men for the purpose of procreation and increase of the Roman population.3 Furthermore, with regard to ancient Greece, Carpenter suggested that during and after the siege of Melos in the year 416 BC, when the Athenians killed all Melian men and enslaved the women,4 they committed forced impregnation “to eradicate cultural unity of the enslaved survivors.”5 In a completely different context, reproductive violence has also been documented in relation to slavery in North America. In her 1981 book “Women, Race & Class”, Angela Y. Davis discussed the under-researched experience of female slaves. She pointed out not only the frequent sexual abuse connected to an exercise of power and “ownership”, but also the specific violations Black women suffered because of their reproductive capacity: “They were ‘breeders’—animals, whose monetary value could be precisely calculated in terms of their ability to multiply their numbers.”6 The purpose of “slave breeding” was to increase the slave population and thus to maintain and profit off the system of slavery.7 In many cases, the pregnancies resulted from rape.8

3.2.1.2

Reproductive Violence in Nazi Germany

From 1933 on, reproductive violence was an important element of Nazis’ “eugenics” and “racial hygiene” policies, which aimed to “improve” the “Aryan race”. These policies consisted of both pro-natalist and anti-natalist measures, though the latter took precedence.9

3 See

generally Livy 1905, vol 1.9. See also Brownmiller 1975, p 34. Vikman 2005, p 26. 5 Carpenter 2000, p 223, footnote 36. 6 Davis 2019, originally published 1981, pp 4–5. See also Bridgewater 2001, p 42: “For female slaves, the story of slavery was the story of reproductive exploitation.” 7 See Bridgewater 2001, pp 19–23; Davis 2019, originally published 1981, pp 4–6; Grey forthcoming, p 6; Montoya 2019, p 38. 8 See Bridgewater 2001, p 26. 9 See Bock 1986, pp 79–80. 4 See

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Pro-natalist measures, i.e. measures to promote reproduction, aimed at increasing birth rates among the “Aryan” population. To this end, for example, financial incentives were granted. In June 1933, a law was introduced to provide loans to newly married men—under the conditions that the wife had been employed prior to the marriage and that she would subsequently quit her job.10 Later in the same year, a decree regulated that a quarter of the debt would be waived for each child resulting from the marriage.11 Furthermore, the Nazis resorted to pro-natalist propaganda, for example through the creation of the registered association “Lebensborn e.V.”, and a general glorification of motherhood. The effects of these measures are questionable. Though birth rates increased, Gisela Bock argued that this was the result of restriction of access to abortion and, primarily, improved economic conditions.12 As an anti-natalist measure, i.e. measures preventing reproduction, forced sterilization was conducted systematically. The Law for the Prevention of Hereditarily Diseased Offspring of 14 July 1933 formally provided a legal basis for forced sterilizations against those deemed “hereditarily diseased” or suffering from “severe alcoholism”.13 The scope of the law was later expanded to the castration of men convicted for homosexuality (Section 175 Reichsstrafgesetzbuch).14 According to estimates, about 400,000 forced sterilizations took place based on this law.15 Furthermore, certain “habitual criminals” were subjected to castrations as an additional measure to a criminal conviction based on the Law against Habitual Criminals.16 As shown by Bock, this practice of forced sterilization aimed at achieving “racial hygiene” by way of preventing “inferior” offspring, and it thus constituted an integral part of the Nazis’ racial politics.17 These measures performed from 1933 onwards did not become subjects of international criminal trials, as there was no direct connection to World War II.

10 Gesetz zur Verminderung der Arbeitslosigkeit (Law for the Reduction of Unemployment), 1933 I Reichsgesetzblatt 323, 1 June 1933. 11 Durchführungsverordnung über die Gewährung von Ehestandsdarlehen (Regulation on the Granting of Marriage Loans), 1933 I Reichsgesetzblatt 377, 20 June 1933, sec. 8. See Bock 1986, pp 146–152. 12 Bock 1986, pp 139–169. 13 Gesetz zur Verhütung erbkranken Nachwuchses (Law for the Prevention of Hereditarily Diseased Offspring), 1933 I Reichsgesetzblatt 529, 14 July 1933, sec. 1. See Bock 1986, pp 80–94; Ley 2004, pp 34–120; Rothmaler 1991; Simon 2001, pp 209–308. 14 Bock 1986, p 95. 15 Bock 1986, p 238; Ley 2004, p 17. 16 Gesetz gegen gefährliche Gewohnheitsverbrecher und über Maßregeln der Sicherung und Besserung (Law Against Habitual Criminals and on Measures of Prevention and Correction), 1933 I Reichsgesetzblatt 995, 24 November 1933, introducing sec. 42k Reichsstrafgesetzbuch. See Bock 1986, pp 94–95; Werle 1989, pp 100–102. 17 Bock 1986. See also Simon 2001, pp 33–52.

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Reproductive violence was also an element of the Nazis’ campaign to exterminate the Jewish people and other groups during World War II.18 They experimented with impediments to reproduction through different means of forced sterilization, namely surgical and medicinal methods as well as x-ray technology, of both men and women in concentration camps, particularly in Auschwitz and Ravensbrück.19 Witnesses in the Polish trial against Auschwitz commandant Rudolf Höß estimated that 3000 sterilization experiments were performed in the camp.20 The purpose of these experiments was “to develop a method of sterilization which would be suitable for sterilizing millions of people with a minimum of time and effort”.21 Specifically, the perpetrators tried to develop a method that was quick and effective while also preventing victims from realizing they were being sterilized and thus limiting resistance.22 In the Medical Trial against Brandt and others, the prosecution explicitly linked the practice of sterilization experiments to the genocidal campaign: The Nazis were searching for methods of extermination, both by murder and sterilization, of large population groups, by the most scientific and least conspicuous means. They were developing a new branch of medical science which would give them the scientific tools for the planning and practice of genocide. The primary purpose was to discover an inexpensive, unobtrusive, and rapid method of sterilization which could be used to wipe out Russians, Poles, Jews, and other people.23

Furthermore, there is some evidence for experiments relating to forced abortions in concentration camps.24 All these experiments had no scientific value and they were often performed in unsuitable and dangerous conditions.25 In the occupied Eastern territories, women were forced to terminate pregnancies and both men and women were subjected to sterilizations.26 These measures were seen as particularly useful because, as opposed to killing the victims, they allowed for an exploitation of their labour, while still leading to the eventual physical destruction

18 Askin

1997, pp 88–91; Askin 2013, pp 35–36; Grey 2017, pp 910–913.

19 See illustratively the prosecution’s opening statement in the Medical Case, United States Military

Tribunal Nuernberg, The United States of America v Brandt et al., Transcripts, 1946–1947, Trials of War Criminals Before the Nuernberg Military Tribunals (Medical Case Transcripts 1946–1947), vol 1, pp 48–50. An extraction of the evidence can be found at vol 1, pp 695–702. See also Bock 1986, pp 453–456; Lifton 1988, pp 309–327; Spitz 2005, p 191. 20 United Nations War Crimes Commission 1947–1949, vol 7, p 15. See also this chapter, Sect. 3.3.2.5. 21 Medical Case Transcripts 1946–1947, above n 19, vol 1, p 49. 22 Ibid., vol 1, pp 48–50. 23 Ibid., vol 1, p 48. 24 United Nations War Crimes Commission 1947–1949, vol 7, p 15. 25 Ibid.; United States Military Tribunal Nuernberg, The United States of America v Karl Brandt et al., Judgment, 19 July 1947, Trials of War Criminals Before the Nuernberg Military Tribunals (Medical Case 1947), vol 2, pp 181–184. 26 See generally United States Military Tribunal Nuernberg, The United States of America v Ulrich Greifelt et al., Judgment, 10 March 1948, Trials of War Criminals Before the Nuernberg Military Tribunals (RuSHA Case 1948), vol 5, pp 109–112, 120–125. See also Bock 1986, pp 440–451.

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of a certain group.27 The Nazi leadership endorsed and encouraged this policy. In the Nuremberg trial, Hitler was quoted as follows: And by ‘destruction’ I do not necessarily mean extermination of these people – I shall simply take systematic measures to prevent their procreation. […] There are many means by which a systematic and comparatively painless extinction of undesirable races can be attained, at any rate without blood being shed.28

Besides the well-documented practice of forced sterilizations, there is some evidence for forcible impregnation experiments on Jewish women.29 This has been confirmed by witnesses Ludwik Kowalczyk at the Auschwitz trial30 and Dr Ada Bimko at the Bergen-Belsen trial.31 The Supreme National Tribunal of Poland also referred to insemination experiments in its judgment against Rudolf Höß.32 The aim of these experiments is unclear, though some have claimed that the purpose was to carry out further experiments on the pregnant women and foetuses.33 According to one source, the responsible physician Carl Clauberg had successfully treated an SS officer’s wife for infertility and was then ordered by Himmler to conduct corresponding experiments on concentration camp inmates; Clauberg subsequently forcibly and artificially impregnated 300 women.34 Other sources indicate that the impregnation experiments were conducted in order to confirm the sterilization experiments’ success.35

27 RuSHA

Case 1948, above n 26, vol 5, p 112; United States Military Tribunal Nuernberg, The United States of America v Oswald Pohl et al., Judgment, 3 November 1947, Trials of War Criminals Before the Nuernberg Military Tribunals (Pohl Case 1947), vol 5, pp 1117–1118 (concurring and dissenting opinion by Judge O’Connell, stating at 1118: “The answer was sterilization. If the Jews could be sterilized, they could be employed for profitable labor, and the race would still be extinct for the coming generations. It was a brilliant idea.”). 28 International Military Tribunal, The United States of America, the French Republic, the United Kingdom of Great Britain and Northern Ireland, and the Union of Soviet Socialist Republics v Hermann Wilhelm Göring et al., Transcripts, 1945–1946, Trial of the Major War Criminals Before the International Military Tribunal (1947–1949) (IMT Transcripts 1945–1946), vol 8, p 312, quoting from Rauschning, The Voice of Destruction (1940). 29 See Bedont and Hall-Martinez 1999, p 74; Benedict and Georges 2006, pp 282–284. See also the artistic adaptation of these documentations in Weiss 2014, p 91. However, see also Mueller 2004, pp 257–258, arguing that there is little evidence for the conduction of these experiments in the literature, besides rumours from inside the concentration camps. 30 Fritz Bauer Institut Geschichte und Wirkung des Holocaust, Tonbandmitschnitte des AuschwitzProzesses (1963–1965): 68. Verhandlungstag, 23.7.1964, Vernehmung des Zeugen Ludwik Kowalczyk, p 28, https://www.auschwitz-prozess.de/resources/transcripts/pdf/Kowalczyk-Ludwik.pdf (accessed 24 October 2020). 31 United Nations War Crimes Commission 1947–1949, vol 2, p 11. 32 Ibid., vol 7, p 16. 33 See Bedont and Hall-Martinez 1999, p 74. 34 See Perper and Cina 2010, p 75. 35 United Nations War Crimes Commission 1947–1949, vol 7, p 16. See also Lifton 1988, p 311; Mueller 2004, p 257.

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“Comfort Women” in Asia

Reproductive violence was also among the many gender-based offenses committed in Asia during World War II. For example, forced abortions were conducted upon the so-called “comfort women” in Japanese-occupied territories. These women, reportedly between 80,000 and 200,000,36 were forced into detention camps operated by the Japanese military—euphemistically referred to as “comfort stations”—and were subjected to repeated rapes, forced prostitution, and sexual slavery as well as various other forms of physical and mental abuse.37 It has been pointed out that many women have been unable to reproduce as a result of the violations.38 According to Askin, only 25 percent of the “comfort women” survived.39 The massive scale of these crimes was effectively silenced until the 1990s, when aging survivors opened up about their experiences and civil society organizations established the Tokyo Women’s Tribunal.40 The tribunal’s symbolic judgment, issued in 2001, details the abuses suffered by the victims. It explicitly refers to reproductive harms, namely forced abortion, forced maternity, infection with diseases and damage to the reproductive system.41 Particularly, the judgment recounts that many women became pregnant as a result of the rapes.42 Depending on the region they were detained in, the victims were either forced to terminate the pregnancy43 or forced to bear the child.44 Some pregnant women suffered additional violations in the form of extreme physical violence.45 These crimes were never tried by an actual criminal court.46

36 Askin

1997, p 74. generally ibid., pp 73–85. 38 See ibid., p 92, arguing that when the result of frequent rapes is inability to reproduce, even when this result was not intended, forcible sterilizations have been committed. This is misleading, because the crime of forced sterilization entails not only the outcome (inability to reproduce), but also the intent regarding this outcome. Accordingly, there is a clear distinction between the crimes of forced sterilization and of rape (or other types of physical violations) resulting in inability to reproduce. 39 Ibid. 40 Copelon 2000, pp 221–223; Grey 2017, p 914. 41 The Women’s International War Crimes Tribunal for the Trial of Japan’s Military Sexual Slavery 2001, paras 406–412. 42 Ibid., paras 207, 251, 332, 664, 790. 43 Ibid., paras 183, 251, 322, 330, 341, 349, 406, 664, 790, 965. 44 Ibid., paras 221, 330, 406. 45 Ibid., para 342. 46 A limited number of convictions for enforced prostitution was handed down by military courts supported by the United Nations War Crimes Commission in the 1940s, see Chap. 2, Sect. 2.4.2.3. However, these trials do not depict the actual scale of the crimes. 37 See

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3.2.1.4

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Population Regulation in Cambodia

During the reign of the Khmer Rouge regime under Pol Pot in Cambodia between 1975 and 1979, which attempted to transform Cambodian society into a classless agricultural system, at least 1.5 million people died through executions, starvation, and forced labour.47 Among other measures to execute a radical socialist revolution, the Khmer Rouge regime introduced a policy of population control through the rigid regulation of families and the institution of marriage.48 This policy aimed at controlling interactions between individuals,49 with the Communist Party of Kampuchea (CPK) replacing the role of parents in a form of collective family.50 It included forcing people into marriages as well as forcing them to consummate the marriage.51 An estimated number of 400,000 persons were forcibly married.52 The policy was rigidly controlled and enforced by CPK authorities.53 All marriages required authorization.54 The regime screened biographies and matched potential spouses.55 In many cases, men and women who had never met each other were forcibly married after having been informed only days or hours before.56 Many were married in public mass ceremonies with up to hundreds of couples.57 In the ceremonies, they were obligated to pledge allegiance not only to their “spouse” but also to the party.58 The policy’s objective was to produce children in order to develop an economically strong and independent Cambodia.59 Considering the high death rates and the demand for labourers for agrarian production, the CPK was dependent upon higher birth rates and explicitly pursued the goal of increasing the population.60 The regime-arranged 47 For

the historical background, see generally Werle and Vormbaum 2018, p 208. generally Extraordinary Chambers in the Courts of Cambodia, Prosecutor v Nuon Chea and Khieu Samphan, Judgment, 16 November 2018, 002/19-09-2007/ECCC/TC (Nuon and Samphan 2018), paras 3522–3701. 49 Ibid., paras 3559–3563. 50 Extraordinary Chambers in the Courts of Cambodia, Prosecutor v Nuon Chea, Ieng Sary, Khieu Samphan and Ieng Thirith, Closing Order, 15 September 2010, 002/19-09-2007-ECCC-OCIJ (Nuon et al. Closing Order 2010), para 217; Nuon and Samphan 2018, above n 48, para 3539. See also Becker 1986, p 237; Elander 2016, p 168; Lobato 2016, pp 9–10. 51 See Becker 1986, p 235; De Langis et al. 2014; Lobato 2016, pp 9–19; Toy-Cronin 2010, pp 544–556. 52 Extraordinary Chambers in the Courts of Cambodia, Prosecutor v Nuon Chea, Ieng Sary, Khieu Samphan, Ieng Thirith and Kaing Guek Eav, Co-Lawyers for Civil Parties’ Second Request for Investigative Actions Concerning Forced Marriages and Forced Sexual Relations, 15 July 2009, 002/19-09-2007-ECCC/OCIJ, para 9. 53 Nuon and Samphan 2018, above n 48, paras 3564–3571. 54 Ibid., para 3602. 55 Ibid., paras 3572–3576. 56 Ibid., paras 3614–3616. 57 Ibid., para 3632. 58 Ibid., para 3633; see also Toy-Cronin 2010, p 548 59 Nuon and Samphan 2018, above n 48, paras 3549–3558. 60 See Becker 1986, p 235; Lobato 2016, pp 12–13; Toy-Cronin 2010, p 545. 48 See

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forced marriages fulfilled a reproduction-related purpose. After the ceremony, the “couples” were forced to consummate the marriage, with militiamen monitoring whether they had in fact had sexual intercourse.61 Reports also indicate that visitations between “husband” and “wife” were arranged at a time when the woman was believed to be fertile.62 A high number of forced marriages reportedly resulted in pregnancies.63 Access to reproductive health services, including contraception and abortion, was not available.64

3.2.1.5

“Rape Camps” in the Former Yugoslavia

The perpetration of forcible impregnation and pregnancy during the Yugoslav wars65 is well documented. It eventually led to the inclusion of the crime of forced pregnancy in the ICC Statute. In this conflict, the perpetration of reproductive violence involved a nexus to ethnicity and “ethnic cleansing”. Several reports indicated that Serb militias established “rape camps”, in which Bosnian and Croatian women were systematically raped.66 Evidence pointed towards a deliberate strategy of impregnating women and detaining them until they were unable to terminate the pregnancy, forcing them to give birth to children presumed to be of the perpetrator’s ethnicity.67 Ostensibly, pregnant women even enjoyed special privileges.68

3.2.1.6

Forced Sterilization in Peru and Beyond

During Alberto Fujimori’s reign as president of Peru between 1990 and 2000, constitutional guarantees and the separation of powers were abolished; his regime was responsible for serious human rights violations.69 Fujimori is currently serving a 61 Nuon

and Samphan 2018, above n 48, paras 3614–3644; see also Lobato 2016, p 14. Chambers in the Courts of Cambodia, Prosecutor v Nuon Chea, Ieng Sary, Khieu Samphan, Ieng Thirith and Kaing Guek Eav, Co-Prosecutors’ Rule 66 Final Submission, 16 August 2010, 002/19-09-2007-ECCC/OCIJ, para 321; Becker 1986, p 267; Lobato 2016, p 13; Toy-Cronin 2010, p 552. 63 See De Langis et al. 2014, p 104, finding that 76.2 percent of the forced pregnancies resulted in the birth of children. 64 See Lobato 2016, pp 18, 25. 65 For the historical background of the conflict in the former Yugoslavia, see generally Werle and Vormbaum 2018, pp 243–244. 66 See Allen 1996, pp 65–66; Commission of Experts 1994, para 248; Stiglmayer 1993, pp 149–169. 67 Commission of Experts 1994, para 248; see also Allen 1996, p 63; Askin 1997, pp 273–276; De Brouwer 2005, pp 9–10; Greve 2008, p 47; Harbour 2016, p 22; Special Rapporteur of the Commission on Human Rights 1993, Annex II, para 41; Verrall 2016, pp 328–329. However, the International Court of Justice could not establish that there was a policy of forced pregnancy, see International Court of Justice, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, 2007 I.C.J. Reports 43, para 367. 68 See Carpenter 2010, p 22; Helsinki Watch 1993, p 219; Stiglmayer 1993, p 154. 69 For the historical background, see Werle and Vormbaum 2018, pp 289–290. 62 Extraordinary

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prison sentence of 25 years. Although he was held accountable for crimes against humanity as well as economic crimes, an often-overlooked aspect of his administration was the widespread practice of forced sterilization.70 Under Fujimori, Peru implemented the “Programa Nacional de Población” (National Population Program), which on its face aimed at combating poverty and improving access to contraception. However, the program also included a euphemistically titled campaign of “voluntary surgical contraception”, meaning sterilizations.71 An estimated minimum of 200,000 persons, mostly women, were sterilized; the vast majority did not consent to the procedure.72 The campaign specifically targeted low-income indigenous women.73 Due to unsafe conditions, many victims suffered long-term consequences74 and several women died because of the procedure.75 In 2002, the Peruvian government acknowledged its responsibility for the forced sterilizations and apologized.76 It also established a register for victims of forced sterilization in 2015.77 Although Fujimori was cleared of any accountability for forced sterilizations in an investigation in 2014, charges against him have since been reopened.78 A current criminal case against Fujimori as well as three former ministers of health reportedly focuses on forced sterilizations in 2,164 cases as well as five cases in which the women died because of the procedures.79 Beyond Peru, forced sterilization campaigns targeting women in particular have also been documented in many others countries.80 These policies are typically aimed at marginalized women such as those living with disabilities or HIV/AIDS, and/or belonging to indigenous or other minority groups.81 For example, reports indicate that Native American women were forcibly sterilized in the United States between the

70 The widespread commission of forced sterilization was not part of the Final Report issued by the Peruvian Truth and Reconciliation Commission in 2003, although it would have been covered by its mandate, see Getgen 2009, pp 17–33. 71 See ibid., 10–14; Gilmore, Victimhood and Responsibility for Forced Sterilisation in Peru, Justice Hub, 12 June 2019, https://justicehub.org/article/victimhood-and-responsibility-for-forced-sterilisa tion-in-peru/ (accessed 24 October 2020). 72 See Amnesty International 2004, p 20; Schwarz 2019, p 267; UPI, Peru Apologizes for Forced Sterilizations, 24 July 2002, https://www.upi.com/Peru-apologizes-for-forced-sterilizations/803 01027529085/ (accessed 24 October 2020). 73 See Amnesty International 2004, p 20; Getgen 2009, p 11. 74 See Schwarz 2019, p 267. 75 See Getgen 2009, p 12. According to the BBC, official statistics indicate that 18 women died, see BBC, Alberto Fujimori: Peru Ex-President Faces Forced Sterilisation Charges, 27 April 2018, https://www.bbc.com/news/world-latin-america-43912023 (accessed 24 October 2020). 76 See UPI, above n 72. 77 Gilmore, above n 71. 78 See BBC, above n 75. 79 See Jenner, Fujimori to Go to Court in Forced Sterilisation Case, Peru Reports, 13 November 2018, https://perureports.com/fujimori-court-forced-sterilisation/8675/ (accessed 24 October 2020). 80 Office of the High Commissioner for Human Rights et al. 2014. 81 Ibid., pp 3–8. On sterilization and intersectionality, see also Sifris 2016, pp 55–57.

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end of World War II and the 1970s, with estimates reaching up to 70,000 victims,82 or between 25 and 50 percent of Native American women between 1970 and 1976.83 With a whistleblower report on the practice of forced hysterectomies emerging from current-day migrant camps in the US,84 these events are now receiving increasing media attention.85 Another recent example is a report on the practice of forced sterilization and forced contraception committed against Uyghur women, finding that Chinese authorities planned to subject at least 80 percent of women of a childbearing age in certain areas to birth prevention or sterilization surgeries, with birth rates already sharply decreasing.86

3.2.1.7

Forced Contraception and Forced Abortion in Colombia

The Colombian civil war, which lasted for several decades and is considered the longest civil war in history, ended with a peace accord between the Colombian government and the rebel group Fuerzas Armadas Revolucionarias de Colombia (Revolutionary Armed Forces of Colombia, FARC) in 2016.87 Among the broad range of serious human rights violations committed during the conflict, it has been reported that FARC rebels forced female fighters to use contraception and to terminate pregnancies,88 allegedly in order to preserve their fighting abilities.89 According to a report compiled by the ICC Office of the Prosecutor in 2012 in the context of the

82 See

Pegoraro 2015, p 167. Lawrence 2000, p 410. 84 Project South Institute for the Elimination of Poverty & Genocide 2020, pp 18–20. See also Reinsberg and Paoletti 2020. 85 See e.g. Donegan, Ice Hysterectomy Allegations in Line With US’s Long and Racist History of Eugenics, The Guardian, 17 September 2020, https://www.theguardian.com/commentisfree/2020/ sep/17/ice-hysterectomy-allegations-us-eugenics-history (accessed 24 October 2020); Shoichet, In a Horrifying History of Forced Sterilizations, Some Fear the US is Beginning a New Chapter, CNN, 16 September 2020, https://edition.cnn.com/2020/09/16/us/ice-hysterectomy-forced-sterilizationhistory/index.html (accessed 24 October 2020). 86 Zenz 2020. See also Reinsberg 2020. 87 For the historical background, see Werle and Vormbaum 2018, pp 286–287. 88 BBC, Colombia: Spain Agrees to Extradite Farc “Abortions Nurse”, 28 January 2017, https:// www.bbc.com/news/world-latin-america-38777734 (accessed 24 October 2020); Piñeros, The Women Abandoned by Peace: Victims of Sexual Violence and Forced Abortion During Colombia’s Long Years of Conflict Have yet to See Justice, Foreign Policy, 18 October 2018, https://foreig npolicy.com/2018/10/18/the-women-abandoned-by-peace/ (accessed 24 October 2020); Vivanco, Colombia: Sexual Violence by FARC Guerillas Exposed: Colombia’s Peace Agreement a Dirty Deal, Without Justice for Atrocities, Human Rights Watch, 11 August 2016, https://www.hrw.org/ news/2016/08/11/colombia-sexual-violence-farc-guerrillas-exposed (accessed 24 October 2020). 89 See on both forced contraception and forced abortion De Vos 2016. 83 See

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preliminary examination of the situation of Colombia, there was also evidence on the commission of forced pregnancy.90 Several domestic criminal trials have dealt with the commission of forced sterilization and forced abortion. In 2017, the Colombian government initiated a case against former FARC rebel Hector Arboleda Albeidis Buitrago, also known as “The Nurse” (“El Enfermero”), who was extradited from Spain, accusing him of forced abortions in 150 cases.91 The procedures were reportedly carried out in unsafe conditions, up to the final weeks of pregnancy and on girls as young as twelve.92 Other criminal cases dealing with reproductive violence have been completed or are currently ongoing.93 Furthermore, the Colombian Constitutional Court issued an important decision in which it recognized persons who had suffered reproductive violence as “victims of armed conflict” in December 2019.94 A woman with the pseudonym Helena, who had been forcibly recruited into the FARC, was forced to undergo contraceptive injections and an abortion, suffering long-term physical harm as a result. Helena then sought recognition as a victim and reparations under Colombia’s Law on Victims and Land Restitution.95 Both requests were at first denied by the competent authority, but the Constitutional Court then ordered that Helena be recognized as a victim and receive reparations.96 The decision is particularly significant for its acknowledgement that persons who were subjected to reproductive violence within an armed group must be considered victims of armed conflict. The Court declared that forced contraception and forced abortion violate the victim’s human rights and constitute violations of international humanitarian law and potentially war crimes.97 This recognition makes it one of the few decisions to address reproductive violence as a distinct form of conflict-related gender-based violence.98 The case was initiated by the NGO Women’s Link Worldwide, which also brought 35 cases of women who had suffered reproductive violence such as forced sterilizations, forced abortions, forced 90 The

Office of the Prosecutor of the International Criminal Court 2012, para 91. However, these allegations do not appear in any further Prosecution reports on the preliminary examination activities in Colombia. 91 See BBC, above n 88; De Vos 2016. 92 See BBC, above n 88; Vivanco, above n 88. 93 For a summary of the cases, see Women’s Link Worldwide, Convictions and Pending Prosecutions for Sexual and Reproductive Violence Committed Against Forcibly Recruited, Civilian, and Combatant Women and Girls in the Armed Conflict of Colombia, 7 October 2019, https://www. womenslinkworldwide.org/en/files/3100/convictions-and-pending-prosecutions-for-sexual-andreproductive-violence-committed-against-women-and-girls-in-the-armed-conflict-of-colombia. pdf (accessed 24 October 2020). 94 Constitutional Court of Colombia, Sentencia SU 599–2019, Judgment, 11 December 2019 (Helena 2019). 95 Ley 1448 de 2011 por la cual se dictan medidas de atención, asistencia y reparación integral a las víctimas del conflicto armado interno y se dictan otras disposiciones, 10 June 2011. 96 For commentary on the decision, see Chinkin and Yoshida 2019; De Vos 2020; Laverty and De Vos 2020. 97 Helena 2019, above n 94, Section II, 2.11, 3.2. 98 See also De Vos 2020; Laverty and De Vos 2020.

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pregnancies, and forced use of contraceptives (including Helena’s case) before the Colombian Special Jurisdiction for Peace.99

3.2.1.8

Forced Impregnation in Burundi

The incumbent president’s announcement to seek a third term in office in early 2015, despite the constitutional two-term-limit, triggered a crisis in Burundi. State authorities immediately responded to the ensuing protests with violent and repressive means.100 According to estimates, thousands of civilians have been killed, disappeared, illegally detained, or tortured.101 The ICC Prosecutor opened an investigation into possible crimes against humanity, which had taken place until October 2017, when Burundi’s withdrawal from the ICC Statute took effect. The investigation focuses, inter alia, on the crime against humanity of rape, but not on any reproductive crimes. However, reports indicate that rapes may have been committed with an intent to impregnate victims. A video, which surfaced on social media in 2017, showed members of the ruling party’s youth wing, the Imbonerakure, calling upon men to “make opponents pregnant so that they can give birth to Imbonerakure”.102 The United Nations High Commissioner for Human Rights condemned these rallies and the “grotesque rape chants”.103 The United Nations Security Council later also issued a statement strongly condemning “the calls for the forced impregnation of women and girls.”104

99 Women’s Link Worldwide, Women’s Link Worldwide Files an Initial Report With the Colombian Special Jurisdiction for Peace (JEP in Spanish) Documenting Violations of the Reproductive Rights of Women and Girls Within the Ranks of the FARC, 7 October 2019, https://www.womenslin kworldwide.org/en/news-and-publications/press-room/women-s-link-worldwide-files-an-initialreport-with-the-colombian-special-jurisdiction-for-peace-jep-in-spanish-documenting-violationsof-the-reproductive-rights-of-women-and-girls-within-the-ranks-of-the-farc (accessed 24 October 2020). 100 ICC, Situation in the Republic of Burundi, Public Redacted Version of “Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Burundi”, 25 October 2017, ICC-01/17-X (Burundi Authorization 2017), paras 33–36. 101 Ibid., para 46. 102 The video is available at YouTube, Des Imbonerakure à Ntega (Kirundo, nord du Burundi) – 2017, 7 April 2017, https://www.youtube.com/watch?v=sTqB1E1hqsU (accessed 24 October 2020); translation according to United Nations Office of the High Commissioner for Human Rights, Grotesque Rape Chants Lay Bare Campaign of Terror by Burundi Militia – Zeid, 18 April 2017, https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=21505 (accessed 24 October 2020). See also United Nations Security Council 2018, para 91. 103 United Nations Office of the High Commissioner for Human Rights, above n 102. 104 United Nations Security Council 2017.

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Forced Marriage and Pregnancy in Sierra Leone and Uganda

During the civil war in Sierra Leone between 1991 and 2002, the rebel group Revolutionary United Front abducted thousands of women and girls.105 They were forced to become fighters, labourers and/or to marry rebels and live as their “bush wives”, which typically entailed not only prolonged sexual abuse but also the obligation to carry out domestic chores and other labours traditionally performed by women as well as reproduction and care work.106 In the context of these forced “marriages”, women frequently suffered rapes and as a result, many became pregnant.107 The number of pregnancies is difficult to estimate. In interviews, 20 percent of women stated they had become pregnant, but the actual number is likely to be higher.108 A similar picture emerged from the conflict in Uganda. The paramilitary rebel group Lord’s Resistance Army (LRA) was involved in an armed conflict with the Ugandan government and military since 1987.109 In 2003, the government of Uganda referred the situation to the International Criminal Court, which subsequently opened two cases of possible war crimes and crimes against humanity committed since the beginning of the Court’s temporal jurisdiction on 1 July 2002.110 In the judgment against Dominic Ongwen, former commander of the LRA’s Sinia brigade,111 Trial Chamber IX found that women and girls were systematically abducted and distributed to LRA fighters; the victims were regularly raped, forced to perform domestic chores and confined in their movement by their forced “husbands”.112 As a result, many became pregnant and had children.113 During the trial against Ongwen, expert evidence indicated that close to half of the abductees who were forcibly married to LRA fighters bore children.114 One witness illustratively stated that when a “forced wife” became pregnant, “Kony loved that the person would give birth to a new breed of Acholi.”115

105 For

the historical background, see Coulter 2009, pp 31–56; Werle and Vormbaum 2018, pp 181–182. 106 See Coulter 2009, pp 3, 95–124. 107 See ibid., pp 3, 115, 208, 232. 108 See ibid., p 115, footnote 8. 109 For the historical background, see Werle and Vormbaum 2018, pp 191–192. 110 International Criminal Court, Situation in Uganda, https://www.icc-cpi.int/uganda (accessed 24 October 2020). 111 ICC, Prosecutor v Dominic Ongwen, Judgment, 4 February 2021, ICC-02/04-01/15 (Ongwen 2021). 112 Ibid., paras 212–221. 113 Ibid., paras 2069–2070. 114 ICC, Prosecutor v Dominic Ongwen, Common Legal Representative of Victims’ Closing Brief, 28 February 2020, ICC-02/04-01/15 (Ongwen Victims Closing Brief 2020), para 85, footnote 252. 115 ICC, Prosecutor v Dominic Ongwen, Transcript, 21 May 2019, ICC-02/04-01/15-T-216-ENG ET WT, pp 24–25.

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ISIS

In recent years, the fate of the Yazidi women held in sexual enslavement by ISIS fighters has shocked the international community. The commission of sexualized violence against these women attracted worldwide media attention due to the prolonged engagement and dedication of outspoken survivors such as Nadia Murad, recipient of the 2018 Nobel Peace Prize. In August 2014, ISIS fighters took control of the Sinjar region in northern Iraq, close to the Syrian border, which was home to the majority of the Yazidi community.116 While men were either instantly killed or captured and subjected to forced labour,117 women and girls from the approximate age of nine years were “sold” in slave markets to ISIS fighters,118 and older women— ostensibly deemed unfit to serve as either sexual slaves or forced labourers—were reportedly killed and buried in mass graves.119 The practice of human trafficking is detailed in a UN report, where it is stated that “once ISIS sells a Yazidi woman or girl, the purchasing fighter receives complete rights of ownership and can resell, gift, or will his ‘slave’ as he wishes.”120 During the period of enslavement, the women were frequently sexually abused and raped both by their “owners” and by others, and subjected to other types of physical and emotional abuse.121 While some victims were forced to take birth control,122 others inevitably became pregnant; however, partly due to extreme stigma, reliable data is not available.123 In some cases, women were reportedly forced to undergo abortions.124 Reports indicate that in some cases, the perpetrators specifically intended to impregnate the victims in order to prevent reproduction among the Yazidi group.125 According to the group’s religious beliefs, a child is only considered Yazidi when both parents are Yazidis.126 Similarly, ISIS fighters believe the father passes on his 116 United

Nations Human Rights Council 2016, para 1. paras 32–41. 118 Ibid., paras 42–80. See also Epik 2018, pp 34–37. 119 Global Justice Center 2016, p 1. 120 United Nations Human Rights Council 2016, para 62. 121 Ibid., paras 64–68. 122 See Callimachi, To Maintain Supply of Sex Slaves, ISIS Pushes Birth Control: Modern Methods Allow the Islamic State to Keep up its Systematic Rape of Captives Under Medieval Codes, New York Times, 12 March 2016, https://www.nytimes.com/2016/03/13/world/middleeast/to-maintainsupply-of-sex-slaves-isis-pushes-birth-control.html (accessed 24 October 2020); see also De Vos 2016. 123 United Nations Human Rights Council 2016, paras 60–71. One report found that out of 700 Yazidi women, 35 had become pregnant, see Callimachi, above n 122. 124 Callimachi, above n 122; Global Justice Center 2016, pp 3–4; Marczak 2018, p 147; Shubert and Naik, ISIS “Forced Pregnant Yazidi Women to Have Abortions”, CNN, 6 October 2015, https://edi tion.cnn.com/2015/10/06/middleeast/pregnant-yazidis-forced-abortions-isis/index.html (accessed 24 October 2020). 125 Global Justice Center 2016, p 3. See also Marczak 2018, p 147. 126 United Nations Human Rights Council 2016, paras 19, 144. 117 Ibid.,

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lineage to the child.127 Thus, from both the perspective of the victims and the perpetrators, children born as a result of these rapes are not considered Yazidi.128 The reintegration of women who have become pregnant, and their children, has reportedly proven particularly difficult, despite efforts to welcome back survivors of ISIS enslavement.129

3.2.1.11

Summary

The preceding overview illustrates that reproductive violence occurs in various forms and for various purposes. Nevertheless, an aspect that is common to all the scenarios mentioned in this subsection is that reproductive violence can serve as a powerful tool of asserting control over individuals and communities. Through controlling reproduction, perpetrators are able to endanger or promote a particular group’s existence. They may also coerce individuals to function or behave in a certain way. An important typology of conflict-related reproductive violence is its occurrence in connection with sexual slavery and forced marriage. Particularly the latter phenomenon has received considerable attention in international criminal law in recent years. International criminal courts such as the Special Court for Sierra Leone and the ICC have addressed these crimes in recent trials and decisions. As the above reports from, for example, Sierra Leone, Uganda, and ISIS illustrate, forced marriage and sexual slavery often go hand in hand with the commission of reproductive violence.

3.2.2 Reproductive Violence and Children Born of Rape in Conflicts The most obvious consequence of conflict-related reproductive violence is typically the birth of children. The phenomenon of “children born of rape” or “children born of war” has received relatively broad attention in the international legal discourse as well as in human rights activism.130 There are numerous reports and studies on the phenomenon of children being born during and after conflicts as a result of mass rapes. For example, it has been reported that 2000 to 5000 children were born of rapes during the Rwandan genocide

127 Global

Justice Center 2016, p 3. Epik 2018, p 37. 129 See Hussein, Pregnant IS Rape Victims Face Challenges Upon Returning to Iraq, VOA, 20 August 2016, https://www.voanews.com/a/pregnant-islamic-state-rape-victims-face-challenges-ret urn-iraq/3473322.html (accessed 24 October 2020). See also Chap. 2, Sect. 2.2.2. 130 See generally Carpenter 2007; Carpenter 2010; Seto 2013. 128 See

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in 1994.131 There are no reliable reports with regard to the number of children born during the conflict in Yugoslavia;132 however, 119 pregnancies resulting from rape were documented during the year 1992 alone.133 According to a report, the Bosnian government estimated that 35,000 women had been impregnated.134 In Cambodia, children were born as a result of rapes in forced marriages.135 In the war between the former East and West Pakistan, which resulted in the independence of Bangladesh in 1971 and in which at least 200,000 persons experienced sexualized violence,136 the number of 25,000 pregnancies among Bangladeshi women was reported.137 Furthermore, reports of children being born as a result of rapes have also emerged in the conflict in Sudan,138 though there appear to be no documentations as to the number of pregnancies or children. In this regard, some reports also indicate that rapes were committed with an intent to “produce” children with lighter skin colour.139 Sexualized violence was also widespread in the conflict in East Timor between 1975 and 2002, when the state gained independence from Indonesia.140 Reliable data regarding pregnancies and childbirths does not exist, but estimates put the number of children born as a result of sexual slavery and rapes in the hundreds or even thousands.141 During the civil war in Sierra Leone, the Revolutionary United Front abducted a large number of women and girls. Throughout their abduction, which often lasted several years and after which some women decided to stay with their so-called “bush husbands”, many victims had children.142 However, the number of pregnancies is difficult to estimate. It is also unclear how many pregnancies resulted in childbirths and whether the children survived. Upon return to their mothers’ families after the war, the children often faced stigmatization and ostracization by families and society, being referred 131 Nowrojee 1996, p 4. The fate of these children and their mothers has attracted worldwide media

attention, see for example McKinley Jr., Legacy of Rwanda Violence: The Thousands Born of Rape, New York Times, 23 September 1996, https://www.nytimes.com/1996/09/23/world/legacy-of-rwa nda-violence-the-thousands-born-of-rape.html (accessed 24 October 2020). See also Mukangendo 2007. 132 See Carpenter 2010, pp 22–23. 133 Special Rapporteur of the Commission on Human Rights 1993, Annex II, para 9. 134 See Drakuli´ c, Women Hide Behind a Wall of Silence, The Nation, 1 March 1993, p 271. See generally Daniel-Wrabetz 2007. 135 See Lobato 2016, pp 16–19. 136 For the historical background, see Werle and Vormbaum 2018, p 203. 137 Brownmiller 1975, p 84; D’Costa and Hossain 2010, p 339; Greve 2008, pp 31–32; Seto 2013, pp 29–30. 138 See Polgreen, Darfur’s Babies of Rape Are on Trial From Birth, New York Times, 11 February 2005, https://www.nytimes.com/2005/02/11/world/africa/darfurs-babies-of-rape-are-ontrial-from-birth.html (accessed 24 October 2020). 139 See Wax, “We Want to Make a Light Baby”: Arab Militiamen in Sudan Said to Use Rape as a Weapon of Ethnic Cleansing, Washington Post, 30 June 2004, https://www.washingtonpost.com/ wp-dyn/articles/A16001-2004Jun29.html (accessed 24 October 2020). See also Carpenter 2010, p 21. 140 For the historical background, see Werle and Vormbaum 2018, pp 214–215. 141 See Rimmer 2010, p 121. 142 See Coulter 2009, pp 3, 232–235.

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to as “bad children” or children of “rebel blood” and considered inherently troublesome.143 Similar events have been documented in northern Uganda: In the conflict with the LRA, approximately 8000 children were born as a result of wartime sexual violence according to the International Center for Transitional Justice.144 These children and their mothers face a particular stigmatization and their (re-)integration into society has been challenging.145 Reports on children born as a result of rapes have also emerged from the ongoing war in Syria. A United Nations report mentions the particularly dire circumstances of women who have become pregnant and/or bore children: They are at risk of honour killings and face extreme stigmatization and ostracization.146 Though numbers vary and it is often unclear whether perpetrators specifically intended to impregnate the women or force them to bear the child, these reports raise important questions as to the (re-)integration of the victims into society. Regarding the children born of rape in conflicts, reports indicate that they often suffer rejection by society, particularly in the aftermath of conflicts between different ethnic groups. The marginalization of these children is visible in the collective “identities” often assigned to them, such as “Chetnik babies” in Bosnia, “children of hate” in Rwanda, and “Kony’s children” in Uganda.147 As “children of the enemy”, they may be ostracized148 and denied civil rights within their mother’s ethnic group.149 Some accounts point to the risk of abuse, neglect, and even infanticide.150 Children born of wartime rape often live in dire economic conditions, as documented particularly with regard to post-war experiences in Sierra Leone and Bosnia and Herzegovina.151

143 See ibid., pp 232–235. See also Special Court for Sierra Leone, Prosecutor v Alex Tamba Brima,

Brima Bazzy Kamara and Santigie Borbor Kanu, Appeals Judgment, 22 February 2008, SCSL2004-16-A (Brima et al. 2008), para 199; Baldi and MacKenzie 2007. 144 International Center for Transitional Justice, “I Am Not Who They Think I Am”: New ICTJ and MediaStorm Film Confronts Stigma Facing Children Born of War, 2 January 2017, https://www. ictj.org/news/not-who-they-think-i-am-stigma-uganda (accessed 24 October 2020). 145 See Apio 2007; International Center for Transitional Justice 2015. See also Ongwen Victims Closing Brief 2020, above n 114, paras 89–91, 104–106 146 United Nations Human Rights Council 2018, para 99. 147 Neenan 2018. With regard to Uganda, see also Ongwen Victims Closing Brief 2020, above n 114, paras 104–106. 148 See Carpenter 2010, pp 33–37; Coulter 2009, pp 232–235; Leatherman 2011, p 49. 149 See Carpenter 2010, pp 18, 33. 150 See Carpenter 2010, pp 24–26; DeLaet 2007, p 128. See also see also Ongwen Victims Closing Brief 2020, above n 114, para 105. 151 See Carpenter 2010, pp 28–33; Coulter 2009, p 235.

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3.2.3 Manifestations and Effects of Conflict-Related Reproductive Violence Against the background of these documentations on the commission of conflictrelated reproductive violence, it can be observed that reproductive violence occurs in different manifestations and with various consequences. Regarding the manner in which reproductive violence is committed, two variations may be distinguished, namely negative or positive targeting.152 Negative targeting comprises acts impeding reproductive capacity, for example through forced sterilization or forced contraception. Most forms of “negative” reproductive violence can affect both men and women. However, some forms, such as forced abortion, exclusively target persons with the ability to become pregnant. In contrast, positive targeting encompasses methods of using the reproductive system without the person’s consent for the perpetrator’s purposes, for example forced impregnation and forced pregnancy. Like forced abortion, “positive” forms of reproductive violence are typically suffered by persons with the ability to become pregnant. However, it is also possible that men are “positively” targeted, for example when they are forced to take part in an act of forcible impregnation. While both men and women may experience reproductive violence, persons with the capacity to become pregnant are exposed to particular forms of reproductive violence.153 Reproductive capacity is also a reason for the selective and strategic targeting of women of a reproductive age, who are “perceived [as] transmitters of cultural and ethnic identity and the symbolic repositories of familial and national ‘honour’”154 . Accordingly, controlling women’s childbearing capacity is a means to control a community’s reproduction and survival.155 This also relates to the strategies for targeting certain groups of women: Practices such as forced sterilization and forced abortion are often carried out against indigenous women, women with disabilities, and other marginalized groups, because they are seen as “unworthy” of procreating, which highlights the intersectional nature of such violations.156 “Positive” forms of reproductive violence also cause additional harms for the victims who become pregnant.157 Pregnancy and childbirth generally constitute risks for women’s health; according to the World Health Organization, 810 deaths occur each day from causes related to it.158 In conflict situations, where access to health services is often limited, these dangers are exacerbated.159 According to UN data, maternal mortality in countries affected by humanitarian crises or fragile conditions 152 This

distinction is also drawn by De Vos 2016. also De Vos 2020; Grey 2017, p 907. 154 United Nations Security Council 2018, para 13. 155 United Nations Security Council 2019a, para 17. 156 See United Nations General Assembly 2019, paras 21, 44. 157 See generally Goldstein 1993. 158 World Health Organization, Maternal Mortality, 19 September 2019, https://www.who.int/newsroom/fact-sheets/detail/maternal-mortality (accessed 24 October 2020). 159 See Kotsadam and Østby 2019; Urdal and Che 2013. See also Paul 2008, p 191. 153 See

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was almost double the global average in 2015,160 and 76 percent of states with the highest maternal mortality rate (defined as a ratio of above 300 per 100,000 live births) were categorized by the OECD as fragile states.161 As a result of poor obstetric health services in conflict situations, some victims may also suffer loss of their reproductive capacity.162 Furthermore, when victims are forced to bear children, they often face long-term psychological consequences,163 as the birth of a child may lead to long-term traumatization and serve as a constant reminder164 of the violation. The visibility of pregnancy and childbirth typically adds to the stigma often suffered as a consequence of rape.165 Further, in conflicts with an ethnical dimension, there is often a particular stigma associated with bearing a “child of the enemy”.166 More severely than through committing sexualized violence as such, forcing victims to become pregnant and to bear children may thus be aimed at dismantling families and communities by way of rendering them unable to reproduce for either physical, psychological, or social reasons in the future.167 Since mothers are often the sole providers for children born of rape, they may also experience serious economic consequences.168

3.2.4 Summary The preceding section demonstrated that reproductive violence is prevalent in conflicts around the world, and has been so throughout history. It appears in various forms, such as forced sterilization, forced contraception, forced abortion, and forced pregnancy. Depending on the individual circumstances and the background of the 160 United

Nations Population Fund, Maternal Mortality in Humanitarian Crises and in Fragile Settings, 12 November 2015, https://www.unfpa.org/sites/default/files/resource-pdf/MMR_in_hum anitarian_settings-final4_0.pdf (accessed 24 October 2020). 161 World Health Organization et al. 2015, p 26. 162 See Schwarz 2019, p 256. 163 See De Brouwer 2005, p 144; Goldstein 1993, pp 17–18; Paul 2008, pp 190–191; Schwarz 2019, p 256. 164 See Carpenter 2010, p 27; EC Investigative Mission Into the Treatment of Treatment of Muslim Women in the Former Yugoslavia 1993, para 15. See also Ongwen Victims Closing Brief 2020, above n 114, para 105. 165 See Carpenter 2000, p 223; De Brouwer 2005, p 144; EC Investigative Mission Into the Treatment of Treatment of Muslim Women in the Former Yugoslavia 1993, para 15; Goldstein 1993, p 21; Greve 2008, p 33; Leatherman 2011, p 49; United Nations Security Council 2019a, para 20. See also Chap. 2, Sect. 2.2.2. 166 See Greve 2008, p 33; Grey 2017, p 907; Leatherman 2011, p 49; United Nations Security Council 2019a, para 20. 167 See also Kuschnik 2009, p 354 (with regard to the ostracization of the victims); Schwarz 2019, pp 256–257. 168 See Greve 2008, p 33; Grey 2017, p 907. See also Ongwen Victims Closing Brief 2020, above n 114, para 95.

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specific conflict, reproductive violence occurs for different purposes and may have diverse consequences for individual victims and their communities.

3.3 International Criminal Law This section deals with the treatment of reproductive violence under international criminal law. Section 3.3.1 develops a definition of the concept of reproductive violence for the purposes of international criminal law and analyses its distinction to the related concepts of sexualized and gender-based violence. Sections 3.3.2 and 3.3.3 address reproductive violence in legal practice after World War II and in the context of the Genocide Convention. Finally, Sects. 3.3.4 and 3.3.5 focus on reproductive violence under contemporary international criminal law, in legal practice and legal scholarship respectively.

3.3.1 The Concept of Reproductive Violence in International Criminal Law Reproductive crimes are rarely understood as a distinct category of international crimes. The terms “sexual violence”, “gender (or gender-based) violence”, and “reproductive violence” are often used interchangeably, but they are not congruent. As pointed out above,169 sexualized violence is a sub-category of gender-based violence. Based on the arguments presented here, reproductive violence must be understood as a separate form of gender-based violence.

3.3.1.1

Definition of Reproductive Violence

A definition of the terms “reproductive violence” or “reproductive crimes” has not yet emerged in international criminal law. International legal instruments do not use these terms.170 In legal scholarship, a limited number of authors has explicitly referred to reproductive crimes or offered definitions. Kelly Askin, who appears to have introduced the term “reproductive crimes” in the context of international criminal law in her 1997 book “War Crimes Against Women”,171 defined them as “crimes which affect a person’s reproductive capacity.”172 Dina D’Costa and Sara Hossain adopted this term from Askin without explicitly defining it, but they seem to deviate from her definition by referring to the element of targeting victims because of their 169 See

Chap. 1, Sect. 1.3.2.2. Grey 2017, p 906, footnote 5. 171 See D’Costa and Hossain 2010, pp 342–343, footnote 37. 172 Askin 1997, p 397. 170 See

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reproductive capacity.173 This approach goes beyond mere effects on reproductive capacity, which may or may not have been intended by the perpetrator. Instead, it shifts the focus towards the motivation behind the commission of the acts. Rosemary Grey developed a slightly broader understanding of reproductive violence, defining it as “violence which involves a violation of reproductive autonomy or which is directed at people because of their reproductive capacity.”174 The latter approach deserves support. It does not focus solely on the objective physical effects of a violent act or solely on the perpetrators’ subjective motivation for committing it. Instead, it combines these two aspects. A violent act can be considered reproductive violence in two scenarios: (1) when the act—objectively— harms the victim’s reproductive capacity and thus causes a violation of his or her reproductive autonomy, or (2) when the perpetrator specifically targets the victim’s reproductive capacity and thus—subjectively—intends to cause a violation of the victim’s reproductive autonomy. Only this alternative approach adequately captures the core of reproductive violence, namely the violation of the victim’s reproductive autonomy, which underlies all acts of reproductive violence. Understood in this manner, the criminalization of acts of reproductive violence protects the value of reproductive autonomy.175 Reproductive autonomy can be defined as an individual’s capacity and possibility to make self-determined and informed decisions relating to reproduction,176 which includes all aspects concerning impregnation, pregnancy, and birth. Specifically, reproductive autonomy encompasses the freedom to choose whether, how, and under what circumstances to reproduce.177

3.3.1.2

The Distinction Between Sexualized and Reproductive Violence

Only few authors and institutions explicitly distinguish between sexualized violence and reproductive violence. For example, the Office of the Prosecutor of the International Criminal Court uses the term “sexual crimes” to refer to all crimes listed in Articles 7(1)(g), 8(2)(b)(xxii), and 8(2)(e)(vi) of the ICC Statute,178 although this includes the reproduction-related crimes of forced pregnancy and enforced sterilization. In international human rights law, the terms sexual violence and reproductive violence are often used in combination with each other.

173 D’Costa

and Hossain 2010, p 343. 2017, p 906; see also Laverty and De Vos 2020. 175 See also De Vos 2020. 176 See Wapler 2018. 177 See Büchler 2017, p 5. See also Grey forthcoming, p 4. 178 The Office of the Prosecutor of the International Criminal Court 2014, p 3. 174 Grey

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Still, the definitions of the two concepts are not congruent.179 Sexualized violence is violence committed in a sexualized manner; it may have consequences on the reproductive system, but these are not a necessary element of the offenses. Thus, the definitions of the two forms of gender-based violence have different focuses: Whereas sexualized violence relates to the manner in which the violence is inflicted, the reproductive violence relates, alternatively, to the consequence caused by the violent act or to the perpetrator’s motivation. It follows that overlaps are possible:180 For example, when a perpetrator rapes a person specifically in order to impregnate her, he commits violence in a sexualized manner (rape) because of the victim’s reproductive capacity (intent to impregnate). Thus, the act falls under both the categories of sexualized and reproductive violence. Nevertheless, a distinction between sexualized and reproductive violence is necessary in order to conceptualize different manifestations of gender-based violence adequately. An exercise of sexuality does not automatically entail reproductive implications. Conversely, reproduction can be exercised without sexual elements.181 As Grey rightly asserted, there are forms of sexualized violence without a reproductive component, such as forced nudity, and forms of reproductive violence without a sexualized component, such as forced abortion.182 The decisive difference between sexualized and reproductive violence lies in the value that is being violated.183 The primary injury of sexualized violence lies in the violation of sexual autonomy, as in the right to decide whether, how and under what circumstances to engage in sexual activity. In contrast, the primary injury of reproductive violence is a violation of reproductive autonomy, as in the right to decide whether, how, and under what circumstances to reproduce.

3.3.2 Reproductive Violence in Post-World War II Trials Up until the establishment of the International Criminal Court, international law— with very few exceptions—did not specifically address or deal with the phenomenon of conflict-related reproductive violence. An explicit criminalization of reproductive violence did not exist at the time of the trials on the atrocities related to World War II. While the war crime of forced 179 See

Montoya 2019, p 38: “Reproductive violence is related to, but also distinct from, sexual violence.” Similarly, Dieneke de Vos clarified that reproductive violence is “connected to but also different from” sexualized violence, because of the uniqueness of the inflicted harms, see De Vos 2020. But see also Grey forthcoming, p 5, categorizing reproductive violence as a sub-set of sexual violence. 180 See also De Vos 2016, asserting that the distinction between sexualized and reproductive violence is “arbitrary”, as all forms of sexualized violence can have serious consequences on reproductive health. 181 See Wapler 2018, p 191. 182 See Grey 2017, p 909, footnote 18. 183 See also Grey forthcoming, p 4.

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sterilization had appeared on a list of war crimes considered by the United Nations War Crimes Commission, where it was somewhat curiously linked to the crime of enforced prostitution,184 the Commission ultimately settled on an earlier list of war crimes which did not include any reproductive crimes.185 Reproductive violence also did not appear in the Statutes of the International Military Tribunal in Nuremberg and the International Military Tribunal for the Far East or in Control Council Law No. 10. However, as the previous chapter demonstrated with regard to sexualized violence, the prohibition and criminalization of conflict-related reproductive violence was implicit within broader provisions, such as the protection of family honour in the Geneva Conventions or the criminalization of inhumane treatment as an international crime. Accordingly, prosecutions of such crimes were possible even before the creation of the International Criminal Court.186

3.3.2.1

The International Military Tribunal at Nuremberg

Somewhat surprisingly, given the cursory treatment of sexualized violence, the Nuremberg trial placed some emphasis on reproductive crimes, particularly on forced sterilization, though it was not explicitly listed in the Charter. The “medical” experiments on female concentration camp detainees relating to forced sterilization in Auschwitz and Ravensbrück formed part of the war crimes187 and crimes against humanity188 charges.189 In the judgment, sterilization experiments on both men and women using x-rays and other methods were briefly mentioned in a paragraph describing the experiments conducted in the camp in Dachau,190 although this was not part of the charges. This description was included in the section on “Persecution 184 United

Nations Commission for the Investigation of War Crimes 1943, p 5. Chap. 2, Sect. 2.4.2.3. 186 For the potential to prosecute and punish reproductive violence under the ICC Statute, see Chap. 4 (genocide) and Chaps. 5 and 6 (crimes against humanity and war crimes). 187 Count 3(A): “murder and ill-treatment of civilian population of or in occupied territory and on the High Seas”, Charter of the International Military Tribunal, Annex to the Agreement by the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945 (IMT Charter), Article 6(b). 188 Count 4(A): “murder, extermination, enslavement, deportation, and other inhumane acts committed against civilian populations before and during the war”, ibid., Article 6(c). 189 International Military Tribunal, The United States of America, the French Republic, the United Kingdom of Great Britain and Northern Ireland, and the Union of Soviet Socialist Republics v Hermann Wilhelm Göring et al., Indictment, 1945, Trial of the Major War Criminals Before the International Military Tribunal, vol 1, p 45 (war crimes), p 66 (crimes against humanity, referring to the facts set out in regard of war crimes). 190 International Military Tribunal, The United States of America, the French Republic, the United Kingdom of Great Britain and Northern Ireland, and the Union of Soviet Socialist Republics v Hermann Wilhelm Göring et al., Judgment, 1 October 1946, Trial of the Major War Criminals Before the International Military Tribunal (IMT Judgment 1946), vol 1, p 252. At p 260, the judgment also 185 See

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of the Jews”, i.e. with regard to crimes against humanity. Sterilization experiments were not referred to under the category of war crimes in the judgment. In the evidence presented during the trial by the prosecution, reproductive violence received rather broad attention. The prosecution focused mostly on “medical” experiments dealing with forced sterilization conducted upon men, women and children, stating that “the deportees served as guinea pigs for numerous medical, surgical, or other experiments which generally led to their death.”191 Evidence pertaining to forced sterilization was introduced to the trial through both documents and witness statements.192 For example, Marie-Claude Vaillant-Couturier, a member of the Résistance and internee at Auschwitz, reported that men were sterilized through xrays or castration and women through either injections, surgery, or rays.193 Going into further detail regarding methods of sterilization, the prosecution cited the following statements from documents: Experiments on women were carried out in the hospital blocks of the Oswieczim Camp. Up to four hundred women were detained simultaneously in Block 10 of the camp, and experiments on sterilization were carried out on them by means of X-rays and subsequent removal of the ovaries, experiments in engrafting cancer in the neck of the uterus and forced abortion, and on testing countermeasures against injuries to the uterus by X-ray. […] In Block 21 […] mass experiments on castration of men were carried out for the purpose of studying the possibility of sterilization by X-ray. The castration itself was carried out some time later after the X-ray process. These experiments on X-raying and castration were carried out by Professor Schumann and Dr. Dering. It frequently happened that after treatment by X-ray, one or both testicles of the subject were removed for examination.194

Reflecting the evidence on “medical” experiments, the judgment stated that “[t]he inmates were subjected to cruel experiments at Dachau in August 1942, […] [including] experiments dealing with sterilization of men and women by X-rays and other methods.”195 Besides forced sterilization, the acts of forced abortion,196 forced impregnation through artificial insemination,197 and experiments with sexual hormones198 were mentioned during the trial, but not in the judgment. Interestingly, support for an inclusion of reproductive violence in the judgment came from Raphaël Lemkin. During the trial, Lemkin lobbied for prosecutors and

refers to forced abortion of Jewish women who were subjected to forced labour, but does not go into detail. 191 IMT Transcripts 1945–1946, above n 28, vol 5, p 403. 192 Ibid., vol 6, pp 196, 211–212; vol 8, pp 136, 309–314; vol 11, p 405; vol 15, p 667; vol 16, pp 45–46; vol 19, pp 498–499; vol 20, pp 272–273, 547–549; vol 22, pp 195, 300. 193 Ibid., vol 6, pp 211–212. 194 Ibid., vol 8, p 310. 195 IMT Judgment 1946, above n 190, p 252. 196 IMT Transcripts 1945–1946, above n 28, vol 6, pp 170, 212–213, 547; vol 8, pp 133, 310. 197 Ibid., vol 5, p 403; vol 8, p 314. 198 Ibid., vol 6, p 310. The nature of these experiments and their impact on the victims’ reproductive systems—and thus their categorization as reproductive violence—is unclear.

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judges to use the term “genocide”, which he had famously coined in 1944199 . In a letter to the UK Prosecutor David Fyfe, Lemkin argued that under the umbrella of the crime of genocide, acts such as forced sterilization, forced abortion, and forced pregnancy could be prosecuted and potentially prevented in the future: I think that the inclusion of Genocide in the judgment would contribute to the creation of a preventive atmosphere against repetition of similar acts of barbarity. Indeed, we cannot keep telling the world in endless sentences: – Don’t murder members of national, racial and religious groups; don’t sterilize them; don’t impose abortions on them; don’t steal children from them; don’t compel their women to bear children for your country; – and so on. But we must tell the world now, at this unique occasion, – don’t practice Genocide.200

In his 1944 work “Axis Rule in Occupied Europe”, Lemkin had already identified certain Nazi policies aimed at encouraging reproduction within “desired” groups and preventing reproduction within “undesired” groups as a central element of the genocide.201 Despite his efforts, however, the Nuremberg judgment did not include the term “genocide”202 and did not refer to any reproductive crimes apart from forced sterilization.

3.3.2.2

The Medical Case

The crime of forced sterilization was also part of the Medical Case, the second out of twelve Subsequent Nuremberg Trials held by the United States before military tribunals.203 Out of 23 defendants in this trial, eight were charged with forced sterilization. The indictment reads: From about March 1941 to about January 1945 sterilization experiments were conducted at the Auschwitz and Ravensbrueck concentration camps, and other places. The purpose of these experiments was to develop a method of sterilization which would be suitable for sterilizing millions of people with a minimum of time and effort. These experiments were conducted by means of X-ray, surgery, and various drugs. Thousands of victims were sterilized and thereby suffered great mental and physical anguish.204

These acts were charged under both the category of war crimes (Count 2, Article II(b) of Control Council Law No. 10) and crimes against humanity (Count 3, Article II(c) of Control Council Law No. 10). In both cases, the “medical” experiments were categorized as “murders, brutalities, cruelties, tortures, atrocities, and other inhuman 199 Lemkin

1944. Lemkin Letter to the Right Honorable David Maxwell Fyfe, 26 August 1946, 1–2, in: Raphael Lemkin Collection, P-154, Box 1, Folder 18, American Jewish Historical Society, Newton Centre, MA and New York, NY, cited after Barrett 2010, p 51. See also Irvin-Erickson 2018, pp 87–92. 201 Lemkin 1944, pp 86–87. 202 See also Barrett 2010. 203 See also Grey 2017, pp 911–912. 204 Medical Case Transcripts 1946–1947, above n 19, vol 1, p 13. 200 Raphael

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acts”.205 In his opening statement, prosecutor Telford Taylor went into great detail on the nature of the sterilization experiments, stating that their purpose was to develop “the scientific tools for the planning and practice of genocide.”206 The tribunal convicted three defendants for their participation in sterilization experiments and sentenced them to death: Karl Gebhardt, chief clinical officer (“Oberster Kliniker”) of the Reich Physician SS and Police and personal physician to Himmler;207 Rudolf Brandt, personal Referent on Himmler’s Personal Staff and Ministerial Counsellor in the Ministry of the Interior;208 and Viktor Brack, head of office 2 (“Amt 2”) in the Chancellery of the “Fuehrer”.209 The prosecution had withdrawn charges against two defendants.210 The judges found that three defendants were not criminally responsible for sterilization experiments.211

3.3.2.3

The Pohl Case

“Medical” experiments pertaining to forced sterilization were also mentioned in the fourth Subsequent Nuremberg Trial against officials of the “SS-WirtschaftsVerwaltungshauptamt” (SS Economic and Administrative Main Office). In the indictment, the experiments formed part of the underlying conduct for the charge of war crimes as well as crimes against humanity.212 The judgment stated: As one means toward ‘a final solution of the Jewish problem,’ a program of wholesale sterilization of the Jews was instituted and various methods by which sterility could be accomplished without the knowledge of the victim were devised. Even deliberate castration was resorted to.213

Oswald Pohl, head of the “SS-Wirtschafts-Verwaltungshauptamt”, was expressly found responsible for sterilizations.214 In addition, the concurring opinion by Judge

205 Ibid.,

vol 1, p 11 (war crimes), p 16 (crimes against humanity, referring to the facts set out in regard of war crimes). 206 Ibid., vol 1, p 48. 207 Medical Case 1947, above n 25, vol 2, pp 223, 226. 208 Ibid., vol 2, pp 235–236, 238–239. 209 Ibid., vol 2, pp 277–279. 210 Ibid., vol 2, p 241 (Mrugowsky), p 294 (Oberheuser). 211 Ibid., vol 2, pp 195–196 (Karl Brandt), pp 250–251 (Poppendick), pp 292–294 (Pokorny). 212 United States Military Tribunal Nuernberg, The United States of America v Oswald Pohl et al., Transcripts, 1947, Trials of War Criminals Before the Nuernberg Military Tribunals, vol 5, pp 205–206 (war crimes), p 207 (crimes against humanity, referring to the facts set out in regard of war crimes). 213 Pohl Case 1947, above n 27, vol 5, p 971. 214 Ibid., vol 5, p 988.

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Musmanno not only goes into further detail regarding the sterilization experiments,215 but also briefly mentions an incident of forced abortion.216

3.3.2.4

The RuSHA Case

Finally, the eighth of the Subsequent Nuremberg Trials, the case against senior officials of the “Rasse- und Siedlungshauptamt” (RuSHA, Race and Settlement Main Office) and other agencies, paints the most comprehensive picture of reproductive crimes.217 The judges stated: As a part of the gigantic program of strengthening Germany while weakening, and ultimately destroying, enemy nations, measures were taken to hamper and impede the reproduction of enemy nationals. These took the form of various decrees, all aimed at one purpose – to greatly reduce the birth rate among enemy nationals and thereby gradually bring about the destruction of the entire national group.218

The case explicitly involved charges of both forced abortions and forced sterilizations (the latter labelled in a broader manner as “hampering reproduction of enemy nationals”) as crimes against humanity and war crimes,219 although the prosecution clearly linked the reproductive violations to the “program of genocide”220 . It brought extensive evidence concerning both the charges of forced abortion and forced sterilization.221 Out of the ten defendants charged for each of the crimes, five were found guilty of “hampering the reproduction”222 and two of forced abortions.223 With regard to forced abortion, the judgment documented a policy of compelling pregnant slave workers in occupied territories to obtain abortions. In cases of pregnancy, RuSHA conducted an “examination” of the parents’ racial characteristics. If the expected child was deemed “racially inferior”, the pregnancy should be terminated. Where abortions were impossible due to the late stage of the pregnancy or where the examination resulted in supposedly “desirable” racial characteristics, the child would instead be taken from his or her mother upon birth.224 The judgment 215 Ibid.,

vol 5, pp 1117–1119. vol 5, p 1087. 217 See generally Grey 2017, pp 912–913. 218 RuSHA Case 1948, above n 26, vol 5, p 121. 219 United States Military Tribunal Nuernberg, The United States of America v Ulrich Greifelt et al., Transcripts, 1947–1948, Trials of War Criminals Before the Nuernberg Military Tribunals (RuSHA Case Transcripts 1947–1948), vol 4, pp 613–614 (crimes against humanity), pp 617–618 (war crimes, referring to the facts set out in regard of war crimes). 220 Ibid., vol 4, p 689 (with regard to forced sterilizations), see also p 687 with regard to forced abortions. 221 For extracts from the evidence see ibid., vol 4, pp 686–687, pp 1076–1100 (forced abortion), pp 1121–1139 (forced sterilization). 222 Ulrich Greifelt, Otto Hofmann, Richard Hildebrandt, Werner Lorenz, and Heinz Brückner, see RuSHA Case 1948, above n 26, vol 5, pp 120–125, 154–164. 223 Otto Hofmann and Richard Hildebrandt, ibid., vol 5, pp 109–112, 154–164. 224 Ibid., vol 5, pp 109–112. 216 Ibid.,

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stated that “the desired result of this systematic program of abortions was (a) to keep the Eastern laborers available as slave labor [sic]; and (b) to hamper and reduce the reproduction of the population of the Eastern nations.”225 Furthermore, the judges clearly refuted the defence that the abortions were performed on a voluntary basis.226 Concerning the charge of “hampering the reproduction of enemy nationals”, the judgment detailed a variety of measures conducted with the purpose of reducing the birth rate. Originally, these measures mainly consisted of restrictions on marriages between members of certain population groups. Because the results were deemed unsatisfactory, further measures including “comprehensive sterilization of such men and women”227 were then instituted.

3.3.2.5

The Trial Against Rudolf Höß

Rudolf Höß was commandant of the Auschwitz concentration camp. He was put on trial in Poland in 1947 and sentenced to death by the Supreme National Tribunal.228 The trial was conducted based on a Polish decree issued on 31 August 1944, which did not explicitly differentiate between war crimes and crimes against humanity.229 Part of the charges involved “medical” experiments conducted in Auschwitz, including castration, sterilization, premature termination of pregnancy and experiments on pregnant and childbearing women, and artificial insemination.230 The Tribunal found Höß guilty of all alleged crimes.231

3.3.2.6

The Trial Against Adolf Eichmann

During World War II, Adolf Eichmann was a department head in the Reichssicherheitshauptamt (RSHA, Head Office for Reich Security) and responsible for the deportation of Jews.232 Eichmann was captured in Argentina in 1960 and transferred to Israel.233 He was tried by the Jerusalem District Court on the basis of the “Nazis and Nazi Collaborators (Punishment) Law 5710–1950”, which covered crimes against the Jewish people, crimes against humanity, and war crimes.234 “Crimes against the 225 Ibid.,

vol 5, p 112.

226 Ibid. 227 Ibid.,

vol 5, p 128. Nations War Crimes Commission 1947–1949, vol 7, pp 11–26. 229 Ibid., vol 7, pp 82, 89. 230 Ibid., vol 7, p 14. 231 Ibid., vol 7, p 17. 232 For biographical details, see District Court of Jerusalem, Attorney General v Adolf Eichmann, Judgment, 11 December 1961, Criminal Case no. 40/61 (Eichmann 1961), paras 59–67. See also Krause 2002, p 25. See generally Arendt 2006, originally published 1963. 233 See Arendt 2006, originally published 1963, pp 238–241. 234 Eichmann 1961, above n 232, para 4. 228 United

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Jewish people” are defined in Section 1(b) of this law, listing seven acts, the first five of which are modelled after the acts listed in Article II of the Genocide Convention (with small adjustments). The charges against Eichmann included, as the fourth count, the adoption of measures calculated to prevent births amongst Jews, namely forced sterilizations and forced abortions, as a crime against the Jewish people.235 With regard to forced sterilizations, the indictment accused Eichmann of devising “measures for the sterilization of the offspring of mixed marriages in Germany and in areas occupied by her […] in return for the favor of their being given the right to remain within the area governed by the German Reich.”236 In this regard, the Chamber reproduced evidence from the Medical Case, but was not convinced of Eichmann’s involvement in planning or implementing sterilizations.237 Pertaining to forced abortions, the judges found that Eichmann had ordered all pregnant Jewish women in the Terezín ghetto to undergo forced abortions.238 They stated: We convict the Accused, pursuant to the fourth count, of a crime against the Jewish People, an offence under Section 1(a)(1) of the above-mentioned Law, in that during the years 1943 and 1944 he took measures calculated to prevent births among Jews, by directing that births be banned and pregnancies terminated among Jewish women in the Terezin Ghetto, with intent to exterminate the Jewish People.239

The judges found Eichmann guilty on all 15 counts and sentenced him to death; the Israeli Supreme Court later confirmed the decision.240

3.3.3 Reproductive Violence in the Genocide Convention The Genocide Convention adopted by the United Nations General Assembly in 1948 lists five genocidal acts in its Article II, including “imposing measures intended to prevent births”241 as a form of “biological genocide”.242 “Biological genocide” means the destruction of the group through interfering with its ability to reproduce.243 The drafters included this provision against the background of the Nazis’ use of forced 235 Nazis

and Nazi Collaborators (Punishment) Law 5710-1950, 1 August 1950, sec. 1(b)(4); compare: Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 278 (entered into force 12 January 1951) (Genocide Convention), Article II(d). See Hausner 1962, pp 124–125. 236 Hausner 1962, p 125. 237 Eichmann 1961, above n 232, para 158 (“[I]t is not at all impossible that this matter was handled at a higher level.”), para 199. On the Medical Case, see this chapter, Sect. 3.3.2.2. 238 Ibid., paras 159, 199. 239 Ibid., para 244(4). 240 Supreme Court of Israel, Attorney General v Adolf Eichmann, Appeals Judgment, 29 May 1962, Criminal Appeal 336/61. 241 Genocide Convention, above n 235, Article II(d). 242 See Adams 2013, p 128; De Brouwer 2005, pp 43–44; Jeßberger 2009, p 101; Schabas 2009, p 197; Schwarz 2019, p 155. 243 See Jeßberger 2009, p 101; Kreß 2018, marginal no 58.

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sterilization and forced abortion, including the revelations of the trials immediately following World War II.244 A previous draft of the Genocide Convention had included three categories, namely physical, biological, and cultural genocide, each with several sub-categories of genocidal acts. With regard to biological genocide, the 1947 draft referred to: “Restricting births by: (a) sterilization and/or compulsory abortion; or (b) segregation of the sexes; or (c) obstacles to marriage”.245 Despite the omission of these individual acts, the provision on “imposing measures intended to prevent births within the group”, which was eventually adopted, has been interpreted to include these acts.246 In contrast to its inclusion in the Genocide Convention, reproductive violence is notably absent from the Geneva Conventions, particularly from its provisions on “grave breaches”, which were negotiated around the same time. As observed by Grey, this solidifies the perception that reproductive violence only constitutes an international crime when committed with genocidal intent.247

3.3.4 Reproductive Violence in the Statutes and Practice of Modern International and Hybrid Criminal Courts Reproductive violence has played only a minor role in the statutes and practice of modern international criminal courts. Only few statutes specifically include reproductive crimes. Nevertheless, incidences of reproductive violence have surfaced during some international criminal trials since the 1990s.

3.3.4.1

The International Criminal Tribunal for Rwanda

The Statute of the ad hoc tribunal for Rwanda did not include any reproductive crimes beyond the provision on preventing births as genocide. There were also no convictions based specifically on reproductive violence. Nevertheless, the ICTR’s Akayesu judgment briefly addressed reproductive violence, making it an important precedent in this regard. As mentioned above, this judgment was particularly significant due to its categorization of rape as a means of genocide.248 It also included a reference to reproductive violence as genocide. The judges elaborated on “measures intended to prevent births” and listed several acts that could be considered as such, including the deliberate impregnation of women: 244 See

Grey 2017, p 913; Schabas 2009, p 198. Nations Economic and Social Council 1947, pp 6, 26; see also Schabas 2009, p 197. 246 See De Brouwer 2005, pp 43–44. 247 Grey 2017, p 913. 248 See Chap. 2, Sect. 2.4.4.2. 245 United

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507. For purposes of interpreting Article 2(2)(d) of the Statute, the Chamber holds that 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. In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother’s group. 508. Furthermore, the Chamber notes that measures intended to prevent births within the group may be physical, but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate.249

Although Akayesu’s conviction did not rest on these assertions, the linkage between reproductive violence and genocide through prevention of births is a significant precedent.250 Furthermore, the Akayesu trial and judgment surfaced evidence of deliberate targeting of pregnant women251 and forced miscarriages252 . These violations were not only committed against Tutsi women, but also against Hutu women carrying children fathered by Tutsi men.253

3.3.4.2

The International Criminal Tribunal for the Former Yugoslavia

The Statute of the ICTY did not include reproductive crimes either. Despite numerous records of the perpetration of forced impregnation and/or pregnancy during the Yugoslav conflicts,254 such acts were also never specifically charged.255 Nevertheless, some ICTY decisions referred to evidence of these acts. In a decision reviewing the indictment against Karadži´c and Mladi´c, the Trial Chamber mentioned evidence of forced pregnancy, stating: Some camps were specially devoted to rape, with the aim of forcing the birth of Serbian offspring, the women often being interned until it was too late for them to undergo an abortion. […] It would seem that the aim of many rapes was enforced impregnation; several witnesses also said that the perpetrators of sexual assault – often soldiers – had been given orders to

249 ICTR, Prosecutor v Jean-Paul Akayesu, Judgment, 2 September 1998, ICTR-96-4-T (Akayesu 1998), paras 507–508. See also ICTR, Prosecutor v Clément Kayishema and Obed Ruzindana, Judgment, 21 May 1999, ICTR-95-1-T, para 117; ICTR, Prosecutor v Georges Anderson Nderubumwe Rutaganda, Judgment, 6 December 1999, ICTR-96-3-T, para 53, concurring with the Chamber’s explanations in Akayesu. 250 Grey 2017, p 917. 251 Akayesu 1998, above n 249, paras 121, 159, 428. 252 Ibid., para 437. 253 See Grey 2017, pp 916–918. 254 See this chapter, Sect. 3.2.1.5. 255 See generally Verrall 2016, pp 328–329. See also De Vos 2016.

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do so and that camp commanders and officers had been informed thereof and participated therein.256 [footnotes omitted]

With regard to establishing genocidal intent, namely the intent to destroy the group of the Bosnian Muslims, the Trial Chamber also stated that “[t]he systematic rape of women […] is in some cases intended to transmit a new ethnic identity to the child.”257 Still, for unknown reasons, this specific conduct did not form part of the charges in the ensuing trials against either Karadži´c or Mladi´c.258 In two other decisions, trial chambers of the ICTY mentioned evidence of an intent to forcibly impregnate rape victims, although this crime was not specifically charged. In the case against Kunarac, leader of a reconnaissance group of the Bosnian Serb Army, the judges referred to witness statements alleging that the perpetrator told a rape victim “that she would carry a Serb baby”.259 Similarly, the Trial Chamber in the case against Brdanin, a Bosnian Serb politician, stated that one of the direct perpetrators “made no secret that he wanted a Bosnian Muslim woman to ‘give birth to a little Serb’”.260 [footnote omitted]

3.3.4.3

The Special Court for Sierra Leone

Although its Statute explicitly covers the crime against humanity of forced pregnancy, the Special Court for Sierra Leone only cursorily addressed reproductive violence in its practice. Like the ICTY and the ICTR, it did not enter into specific convictions. In the case against Alex Tamba Brima and other members of the military junta “Armed Forces Revolutionary Council”, which briefly governed Sierra Leone in a coalition with the Revolutionary United Front in 1998, forced impregnations and pregnancies found some attention in the judgment. These acts served as evidence for other crimes, namely the war crime of outrages upon personal dignity (in the form of sexual slavery) and the crime against humanity of other inhumane acts (in the form of forced marriage). The Trial Chamber referred to witness statements concerning pregnancies resulting from rapes within forced marriages to establish the elements of the crime of sexual slavery.261 256 ICTY, Prosecutor v Radovan Karadži´ c and Ratko Mladi´c, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, IT-95-5-R61 and IT-95-18-R61 (Karadži´c and Mladi´c Review of Indictments 1996), para 64. 257 Ibid., para 94. 258 Verrall 2016, p 329. 259 ICTY, Prosecutor v Dragoljub Kunarac, Radomir Kovaˇ c and Zoran Vukovi´c, Judgment, 22 February 2001, IT-96-23-T and IT-96-23/1-T, para 342, see also paras 583, 654. 260 ICTY, Prosecutor v Radoslav Brdanin, Judgment, 1 September 2004, IT-99-36-T, para 1011. 261 Special Court for Sierra Leone, Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Judgment, 20 June 2007, SCSL-04-16-T, paras 1080–1081, 1091, 1097, 1113–1114, 1184. See also Dissenting Opinion by Judge Teresa Doherty, paras 30, 42–43, 49, citing evidence of forced impregnations and pregnancies as evidence for forced marriage, which in her view constituted a separate crime against humanity. See particularly para 49: “On the evidence I find that the intention of the ‘husband’ was to obligate the victim to work and care for him and

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The Appeals Chamber later distinguished between sexual slavery and forced marriage and recognized the latter as a separate crime against humanity of other inhumane acts.262 With regard to the nature of forced marriages in Sierra Leone, the Appeals Chamber stated: [Women and girls] were often abducted in circumstances of extreme violence, compelled to move along with the fighting forces from place to place, and coerced to perform a variety of conjugal duties including regular sexual intercourse, forced domestic labour such as cleaning and cooking for the ‘husband,’ endure forced pregnancy, and to care for and bring up children of the ‘marriage.’263 [footnotes omitted]

Thus, the SCSL Appeals Chamber viewed the reproductive aspect, namely impregnating victims and forcing them to bear and raise children, as one of the defining aspects of the forced conjugal relationship.

3.3.4.4

The Extraordinary Chambers in the Courts of Cambodia

Even though the Statute does not explicitly criminalize reproductive violence, the Extraordinary Chambers in the Courts of Cambodia have addressed reproductive violence in two cases. Still, no convictions have been based such conduct. Case 002/2 against two former Khmer Rouge leaders, Nuon Chea and Khieu Samphan, dealt with the crimes against humanity of rape and forced marriage (as another inhumane act), among other crimes including genocide. The case originally included charges against two other accused, Ieng Thirith and Ieng Sary, who died in the course of the proceedings. The charges of rape264 and forced marriage were added to the scope of the case after the conclusion of the judicial investigations on the initiative of the Office of the Co-Prosecutors as well as the Co-Lawyers for Civil Parties, who requested investigative action.265 In the Closing Order of 15 September 2010, the Co-Investigating Judges elaborated on the policy of “regulation of marriage”, which included the acts of forced marriage, rape, and enforced procreation.266 Reproductive crimes were thus implicitly charged and part of the trial. The court issued its judgment in 2018, convicting both accused of a multitude of offenses including the crime against humanity of other inhumane acts through forced marriage and rape in the context of forced marriage. The Chamber broadly discussed the issue of “regulation his property, to fulfil his sexual needs, remain faithful and loyal to him and to bear children if the ‘wife’ became pregnant.” 262 Brima et al. 2008, above n 143, para 195. See Chap. 2, Sect. 2.4.6.1. 263 Ibid., para 190. 264 Rape was only charged in the context of forced marriages, which Oosterveld and Sellers identified as a grave shortcoming of the proceedings, see Oosterveld and Sellers 2016, p 343. 265 Extraordinary Chambers in the Courts of Cambodia, Prosecutor v Nuon Chea, Ieng Sary, Khieu Samphan, Ieng Thirith and Kaing Guek Eav, Order on Request for Investigative Action Concerning Forced Marriages and Forced Sexual Relations, 18 December 2009, 002/19-09-2007-ECCC-OCIJ, paras 1–3; see also Oosterveld and Sellers 2016, pp 326–327. 266 Nuon et al. Closing Order 2010, above n 50, paras 842–860, 1442–1447. “Enforced procreation” is referred to at para 1445.

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of marriages” in its judgment, detailing the background of the regime’s policy and its impact on direct victims as well as communities.267 It is particularly noteworthy that the judgment painted the crime of forced marriage in a gender-neutral manner, meaning that there are both male and female victims.268 Further, though the judgment emphasized the aspect of forcible consummation of marriage, it implicitly followed the approach developed by the Special Court for Sierra Leone and adopted by the ICC,269 considering forced marriage not predominantly as a sexual crime. However, the judgment failed to adequately refer to violations of reproductive autonomy of the forcibly married couples. Although the Trial Chamber recognized the objective to increase the Cambodian population, it did not refer to issues of pregnancy under the coercive circumstances. Whereas in the Closing Order, the charges had been framed as “sexual relations aimed at enforced procreation”,270 the judgment did not elaborate on the aspect of enforced procreation apart from a description of the policy’s overall objective.271 In Case 004 against Ao An, Im Chaem, and Yim Tith, the Civil Party Lawyers and the International Co-Prosecutor requested investigative actions specifically concerning forced pregnancy and forced impregnation as the crime against humanity of other inhumane acts.272 The International Co-Investigating Judge denied these requests based on three reasons. First, he held that there had been no settled definition of forced impregnation and/or forced pregnancy at the time of the commission of the alleged crimes between 1975 and 1979; second, there was no evidence for a policy of forced impregnation and/or forced pregnancy; and third, the requests were filed too late.273

3.3.4.5

The International Criminal Court

With a specific criminalization of forced pregnancy and enforced sterilization as both crimes against humanity and war crimes, the ICC Statute is the most comprehensive 267 Nuon

and Samphan 2018, above n 48, paras 3522–3701. It is noteworthy, however, that the ECCC’s definition of rape does not capture rape committed against men in the context of forced marriages, see para 731. Although the Chamber went on to consider whether inhumane acts were committed against men in the form of (other) sexual violence, it briefly stated that it was unable to reach a finding on the seriousness of this conduct and its impact on male victims, see para 3701. The underlying assumption that men would suffer less from forced sexual intercourse than women is deeply problematic. See generally on the definition of rape for the purposes of the ECCC Oosterveld and Sellers 2016, pp 334–347. 268 Nuon and Samphan 2018, above n 48, para 3690; see also Elander 2016, p 170; Grey 2018. 269 See Chap. 2, Sect. 2.4.6.1. 270 Nuon et al. Closing Order 2010, above n 50, para 1445. 271 Grey forthcoming, p 3. 272 Extraordinary Chambers in the Courts of Cambodia, Prosecutor v Ao An and Yim Tith, Consolidated Decision on the Requests for Investigative Action Concerning the Crime of Forced Pregnancy and Forced Impregnation, 13 June 2016, 004/07-09-2009-ECCC-OCIJ (Ao An and Yim Tith Decision on Investigative Requests 2016), paras 8, 11. 273 Ibid., para 31.

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instrument in this regard. Nevertheless, only a single case has involved a charge of a reproductive crime thus far, namely the case against former LRA commander Dominic Ongwen. He was convicted for the crime of forced pregnancy.274 The crime of enforced sterilization has never been charged at the ICC. The potentials of the ICC Statute to address various forms of reproductive violence will be analysed in more detail in Chaps. 4, 5, and 6.

3.3.5 Reproductive Violence in Legal Scholarship In legal scholarship, only few authors have written about reproductive violence in macro-criminal contexts and explicitly labelled it as such. Notably, most scholars discussing conflict-related reproductive violence have focused exclusively on crimes related to ethnic conflicts, i.e. in the context of genocide or “ethnic cleansing”policies.275

3.3.5.1

Group/Ethnicity-Related Reproductive Crimes

In her seminal 1997 work on “War Crimes Against Women”, Kelly Askin documented various forms of reproductive violence in conflict-related situations. In particular, she referred to reproductive violence committed by the Nazis during World War II, namely forced sterilizations but also forced abortions, infanticide and “being forbidden to reproduce”.276 She also referenced forced sterilizations committed in Asia against “comfort women” in the form of frequent rapes resulting in an inability to reproduce.277 In this regard, Askin stated: [N]ot only do these sexual abuses against women destroy women physically, emotionally, and spiritually, they also frequently destroy a woman reproductively. While protecting women’s reproductive health has been a low or non-existent priority for governments, if courts fail to recognize the dangers self-evident in destroying reproductive capabilities, intentionally or unintentionally, not only will women continue to endure irreparable harm, but all of society will suffer the consequences, and the extraordinary harms and dangers its manipulations present.278 [footnotes omitted]

Notably, Askin did not seem to differentiate between crimes committed with an intent to affect reproductive capabilities on the one hand,279 and crimes (such as

274 Ongwen

2021, above n 111. Grey 2017, p 908. 276 Askin 1997, pp 88–91. 277 Ibid., pp 91–93. 278 Ibid., pp 92–93. 279 She also did not differentiate between direct intent (dolus directus) and indirect intent (dolus eventualis). 275 See

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frequent rapes or gang rapes) which unintentionally lead to reproductive harm on the other hand. Pertaining to crimes committed during the Yugoslav conflicts, Askin referred to forced impregnation and forced maternity, and specifically labelled these crimes as reproductive abuse.280 She also called attention to the intersecting factors of gender and ethnicity apparent in the targeting of women from a certain ethnic group.281 In a contribution on the topic of the ICTR, Askin further discussed reproductive crimes committed during the Rwandan genocide. She referred to forced abortion and killings of pregnant Hutu women, in cases where a Tutsi man had fathered the embryo.282 Conversely, Askin also cited evidence of Tutsi women married to Hutu men being spared from persecution, because they were considered to produce Hutu children in Rwanda’s patrilineal society.283 In a poignant analysis of the evidence from Rwanda and Yugoslavia, Askin stated that gender-based or sex-based crimes are sometimes committed against women and girls because of their reproductive capacity. Women may be killed, sexually mutilated, forcibly sterilized, subjected to forced abortion, or prevented from sexual activity precisely in order to prevent them from reproducing, while sometimes women are raped, sexually enslaved, or forcibly impregnated in an attempt to cause them to bear a child of the rapist.284

In referring to “a child of the rapist”, the quotation illustrates that Askin seemed to consider the concept of patrilineality as the root of the reproductive crimes committed in both conflicts. In Rwanda, where the aim was the complete destruction of an ethnic group, reproduction was obstructed in such cases where the father was a member of the Tutsi group. In Yugoslavia, where the aim was not necessarily destruction, but rather “ethnic cleansing”, reproduction served as a tool to enhance the number of births considered to be of the “desired” ethnicity, as well as to impede reproduction within the “undesired” group. In all these analyses of reproductive violence, committed during World War II in Europe and Asia as well as during the 1990s in Yugoslavia and Rwanda, Askin addressed reproductive violence solely in contexts related to a particular group, defined by ethnicity or nationality. Her following statement serves as an example: Reproductive crimes – ranging from sexual mutilation and forced sterilization to forcible pregnancy or abortion – are also remarkably pervasive during wartime, when women’s bodies and their reproductive capacities serve as a battleground for injuring or eliminating outright an opposition group.285

Thus, while Askin acknowledged the distinction between sexual and reproductive crimes and called for “additional treatment and charges”286 for reproductive crimes, 280 Askin

1997, p 273. pp 274–275. 282 Askin 2004, p 54. 283 Askin 2004, p 55. 284 Askin 2004, pp 53–54. 285 Askin 2003, p 512. 286 Askin 1999, p 120, footnote 107. 281 Ibid.,

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she did so only in the context of ethnicity- or group-related mass criminality. She appeared to draw the conclusion that reproductive violence is to be condemned— and should be punishable under international law as well as addressed by transitional justice mechanisms287 —because of “its inherently destructive nature”.288 She did not focus on the individual victim’s reproductive autonomy, but instead on the dangers for specific groups. This focus on the ethnic dimensions of gender-based violence is not limited to reproductive violence; it is also visible in the discourse on sexualized and genderbased violence generally and has been criticized in this context.289 For example, framing wartime rape solely as an attack against an ethnic group conceals the violation of the individual victim’s sexual autonomy. As Hilary Charlesworth put it, under this notion, “the violation of a woman’s body is secondary to the humiliation of the group.”290 The same pattern existed in the debate on “genocidal rape” and the calls for the criminalization of forced impregnation, which emerged after reports on mass rape had surfaced during the Yugoslav wars.291 Catharine MacKinnon, for example, asserted that Serb forces were committing “rape as ethnic expansion through forced reproduction”.292 Similarly, most scholars did not refer to the victim’s individual (reproductive) autonomy in order to justify calls for prosecution and punishment of these acts. Instead, the crimes’ potential impact on the respective group was considered as the main reason for the conceptualization of “genocidal rape” committed with an intent to impregnate or the separate criminalization of forced impregnation.

3.3.5.2

Non-group/Ethnicity-Related Reproductive Crimes

At the same time, however, some scholars pointed out that the practices referred to as genocidal rape and forced impregnation involve violations of individual women’s reproductive autonomy. Anne Tierney Goldstein, for example, stated: International law must recognize the entire range of war crimes against women, including those involving sexual abuse and impregnation. It must reflect an appreciation for the severity of the trauma and degradation imposed on women when they are robbed of reproductive and sexual autonomy in an act of war.293

In the same vein, Rhonda Copelon sharply criticized her fellow scholars’ focus on ethnicity, or race: Forced pregnancy has drawn condemnation only when it reflects an intent to harm the victimized race. […] When examined through a feminist lens, forced pregnancy appears as 287 Askin

2003, pp 512–513. 2004, p 55. 289 See Dowds 2020, pp 126–129. 290 Charlesworth 1999, p 387. 291 See Chap. 4, Sect. 4.2.2 and 4.2.3. 292 MacKinnon 1994, p 13. 293 Goldstein 1993, p 28. 288 Askin

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an assault on the reproductive self-determination of women; it expresses the desire to mark the rape and rapist upon the woman’s body and upon the woman’s life.294

Copelon advanced the same argument in a proposal published in 1994 with several colleagues in the framework of the International Women’s Human Rights Clinic at the City University of New York. The proposal, which was submitted to the judges of the International Criminal Tribunal for the Former Yugoslavia, contained detailed policies aimed at ensuring the prosecution of sexualized violence.295 The authors asserted that forced pregnancy (as well as rape and forced prostitution) should “be viewed as crimes against humanity and grave breaches of the laws of war whether or not they are associated with the abominable practice of ‘ethnic cleansing’.”296 While acknowledging that these acts may constitute genocidal crimes, the authors proposed that they must also be charged as crimes against humanity and war crimes. Further, they asserted that forced pregnancy should be investigated and condemned “both as a crime of gender and a crime of genocide”.297 In all these accounts, the injury of reproductive violence is identified as a violation of reproductive autonomy, as opposed to endangering the existence and reproduction of a particular group. Thus, they acknowledged that reproductive crimes can be committed outside of genocidal or ethnic-cleansing-related contexts, and thus be conceptualized as crimes against humanity or war crimes. After the adoption of the ICC Statute, a number of scholars focused on the provision of forced pregnancy.298 Kristen Boon, for example, discussed the nature and definition of the crime and its relation to the protection of reproductive autonomy.299 In her in-depth discussion of the Ongwen trial and the crime of forced pregnancy in a historical perspective, Rosemary Grey identified “gaps and silences around reproductive violence in international criminal law”.300 She criticized that reproductive violence had rarely been addressed in international law at all, and if so, only in connection with attacks on national, ethnic, racial, or religious groups.301 She argued that reproductive violence is a violation of the victim’s reproductive autonomy, which should be regarded as a value protected by international criminal law.302 Grey also asserted that reproductive violence should be punished as an international crime independently from a connection to the protection of a specific group.303 294 Copelon

1994, p 263. et al. 1994. 296 Ibid., p 236. 297 Ibid., p 237. 298 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (ICC Statute), Article 7(1)(g); Article 8(2)(b)(xxii) and Article 8(2)(e)(vi). 299 Boon 2000, pp 656–657. See also Drake 2012; Markovic 2007; Soh 2006. 300 Grey 2017, p 929. More recently, see also Grey forthcoming, on reproductive crimes more broadly. 301 Grey 2017, p 930. 302 Ibid., p 918. 303 Ibid. 295 Green

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Furthermore, some authors cited specific reports of reproductive violence and examined avenues for prosecutions. In reaction to reports on ISIS’ enforcement of birth control on captured Yazidi women and girls,304 Dieneke de Vos discussed how the ICC could potentially prosecute this crime, given that it would have jurisdiction over the situation. She concluded that it is possible to charge forced contraception as the crime against humanity of other inhumane acts,305 and potentially as another form of sexual violence of comparable gravity306 or as measures intended to prevent births307 if genocidal intent is present.308 Similarly, Alyssa C. Scott examined a chemical attack by Iraqi forces in the Halabja region in 1988 and how the Iraqi High Tribunal could prosecute the reproductive aspect of this attack. She explained that as a result of the chemical attack, many victims suffered from infertility and miscarriages, and many children were born with birth defects.309 Scott found that the Iraqi High Tribunal could address these acts as various forms of crimes against humanity, war crimes, and genocide, as well as violations of several human rights treaties and customary international law.310

3.3.5.3

Kelly Askin’s List of Reproductive Crimes

One of the most profound contributions to the analysis of conflict-related reproductive violence is Kelly Askin’s list of reproductive crimes published in 1997. Askin provided definitions for a number of “sex crimes against the person” which were intended to contribute to an ongoing discussion regarding the elaboration of universal workable definitions for such crimes.311 In Section V of this list, Askin identified ten “reproductive crimes”, namely (1) sexual assault, including rape and forced prostitution; (2) forced impregnation; (3) attempted forced impregnation; (4) forced loss of pregnancy: forced abortion or miscarriage; (5) attempted loss of pregnancy; (6) forced sterilization; (7) genocidal rape; (8) forced maternity; (9) attempted forced maternity; and (10) mutilation (sexual).312 Interestingly, Askin did not add these crimes to the Sections on war crimes (Sections I and II),313 genocide (Section III),314 or crimes against humanity (Section IV),315 but created an additional category of crimes. She

304 See

this chapter, Sect. 3.2.1.10. Statute, above n 298, Article 7(1)(k). 306 Ibid., Article 7(1)(g). 307 Ibid., Article 6(d). 308 De Vos 2016. 309 Scott 2010, pp 17–18. 310 Ibid. 311 Askin 1997, p 380. 312 Ibid., pp 397–403. 313 Ibid., pp 380–391. 314 Ibid., pp 392–393. 315 Ibid., pp 393–397. 305 ICC

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acknowledged that this category of crimes did not exist at that point but argued that a distinction from other crimes was necessary due to their pervasiveness in wars.316 With a view to the consolidation of international criminal law and the four core crimes, which took place as a result of the adoption of the ICC Statute in 1998, Askin’s argument that reproductive crimes are a separate category of crimes under international law—of equal rank to crimes against humanity, war crimes, and genocide—is not persuasive. Nevertheless, the definitions provide helpful insights for the further development of the criminalization of individual acts of reproductive violence within the scope of the three pertinent core crimes. One may categorize Askin’s suggestions as follows: (a) pregnancy- or sterilization-related crimes, (b) genocidal rape, and (c) assaults on the person resulting in harm to the reproductive capacity (other reproductive crimes). Interestingly, Askin separated reproductive crimes from attacks on groups, except with regard to genocidal rape. This is somewhat in contrast with her above-mentioned documentations of reproductive violence in past conflicts, in which she referred to collective harm suffered by the group as such and not the interests of the individual victims. Relating to pregnancy and sterilization, Askin named the crimes of forced impregnation (including attempts), forced loss of pregnancy (including attempts), forced sterilization, and forced maternity (including attempts). As forced impregnation, Askin defined any acts intended to result and resulting in pregnancy, including rape and forced insemination.317 She stated that the general knowledge that an act of rape may result in an impregnation would not be sufficient to fulfil the offence.318 In contrast, the victim of Askin’s proposed crime of forced maternity would already have to be pregnant. The actus reus of this crime would consist of unlawfully forcing the person to remain pregnant against her will.319 Although this would be similar to the crime of forced pregnancy as it is now included in the ICC Statute,320 there are three noteworthy differences. First, Askin did not seem to require that the victim of forced maternity be forcibly impregnated; a consensual impregnation would appear to suffice. Secondly, the offense would only be fulfilled when the woman gives birth, which is not an explicit requirement of forced pregnancy in the ICC Statute. Third, Askin did not set out a special intent requirement. Regarding forced loss of pregnancy, Askin mentioned both forced abortion and forced miscarriage, meaning any acts committed against a pregnant person intended to result in, and actually resulting in, a loss of the pregnancy.321 Askin defined forced sterilization as acts of a medical or non-medical nature resulting in the loss of the ability to reproduce.322 It is somewhat unclear whether she required that the perpetrator intended to cause the sterilization: She did not 316 Ibid.,

p 397. pp 398–399. 318 Ibid., p 399. 319 Ibid., p 402. 320 ICC Statute, above n 298, Article 7(2)(f). See Chap. 5, Sect. 5.5. 321 Askin 1997, pp 399–400. 322 Ibid., p 401. 317 Ibid.,

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include an intent requirement in the proposed crime’s elements, but added in the comments with regard to the nature of the offense that “these acts are ones in which the intended result is the person’s loss of the ability to reproduce.”323 However, the fact that she did not include attempted forced sterilization in her list of crimes seems to suggest that intent is not required. This would contrast with the crime of enforced sterilization as included in the ICC Statute, which requires intent and knowledge in relation to the consequence of loss of reproductive capacity.324 Pertaining to the proposed crime of genocidal rape,325 Askin based her definition on the elements of the crime of genocide as defined in the Genocide Convention but deviated from this model in some crucial aspects. First, her definition would protect not only the four groups included in the Genocide Convention, defined by nationality, ethnicity, race, or religion, but also referred to the destruction of a particular gender.326 In view of the necessary stability of the protected groups, it has been questioned whether gender as a group-defining characteristic is comparable to national, ethnic, racial, or religious groups. However, under current international criminal law, it would also be possible to conceptualize Askin’s approach in this regard as the crime against humanity of gender-based persecution.327 Second, Askin added two requirements to the definition of genocide, namely that the individual act—one of the five enumerated acts in the Genocide Convention328 —is of a sexual nature, and that the act or omission affected the person’s reproductive capacity. However, while the explicit labelling of the harm suffered by a victim is generally important, it appears ineffective to simply add requirements to an existing crime. The acts described by Askin are already punishable as genocide. Instead of establishing an entirely new crime with stricter requirements, international prosecutors and judges could choose to expressly identify sexualized and reproductive aspects of genocidal acts in indictments and decisions. Furthermore, Askin identified as reproductive crimes the offenses of sexual mutilations resulting in harm to the reproductive organs or capacity329 as well as sexual assault, rape, and forced prostitution affecting reproduction, including in the form of causing pregnancy or causing loss of ability to reproduce.330 She did not require an intent to cause these consequences. Similar to the objections given above with regard to “genocidal rape”, it must also be questioned whether the acts listed here should be considered as separate offenses. The underlying conduct would already be punishable as, for example, rape and forced prostitution without requiring the additional element of an effect on the reproductive system. Rather than establishing

323 Ibid. 324 ICC

Statute, above n 298, Article 30(2)(b), (3). See Chap. 6, Sect. 6.2. 1997, pp 401–402. 326 Ibid., p 402. 327 The crime against humanity of gender-based persecution is an innovation of the ICC Statute, above n 298, Article 7(1)(h), and as such did not exist at the time of Askin’s writing. 328 Genocide Convention, above n 235, Article II. 329 Askin 1997, p 403. 330 Ibid., p 398. 325 Askin

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new offenses, it would also be possible to draw attention to the reproductive aspects of the crimes in indictments and judgments.

3.3.6 Summary This section addressed the ways in which international criminal law has responded to conflict-related reproductive violence in theory and practice. It showed that although reproductive violence has received some attention in international legal practice, particularly in response to crimes committed by the Nazis, it was rarely a focus of the trials and specific convictions were rare. Instead, reproductive violence has mainly been treated as a by-product of sexualized violence, mentioned as an added harm in conjunction with other crimes. Furthermore, redress for conflict-related reproductive violence has largely been linked to the intended destruction of certain groups, and thus to genocidal aims. Until the Ongwen judgment in 2021, no judicial decision has referred to a violation of the victims’ individual human rights or their reproductive autonomy.331 Similarly, while some scholars have specifically addressed conflict-related reproductive violence, it has received far less attention than sexualized violence thus far. Furthermore, most scholars dealing with reproductive violence have addressed it in connection with a group’s right to exist and to reproduce, not as a violation of reproductive autonomy.332

3.4 International Human Rights Law Since the 1990s, much attention has been devoted to the protection of reproductive rights within the international human rights discourse. In view of the interplay between human rights and international criminal law,333 an analysis of reproductive international crimes necessitates a consideration of reproductive human rights. This section elaborates on the scope of the protection of reproductive rights and the prohibition of reproductive violence under international human rights law.

331 Ongwen

2021, above n 111, para 2717. See also Grey 2017, pp 913, 918. also Grey 2017, pp 913, 918. 333 See Chap. 1, Sect. 1.4.1.2. 332 See

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3.4.1 Reproductive Rights as Internationally Recognized Human Rights In human rights instruments, both universal and regional, as well as in the practice of international human rights courts and institutions, several forms of reproductive rights are recognized and protected as human rights.

3.4.1.1

Historical Development: Cairo and Beijing Conferences

At the level of the United Nations, a basic and widely accepted definition of “reproductive rights” was developed at the International Conference on Population and Development held in Cairo in 1994: [R]eproductive rights embrace certain human rights that are already recognized in national laws, international human rights documents and other consensus documents. These rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health. It also includes their right to make decisions concerning reproduction free of discrimination, coercion and violence, as expressed in human rights documents.334

Prior to the 1994 Cairo Conference, the international community had already addressed reproductive rights at the International Conference on Human Rights in Teheran in 1968: In a resolution on “human rights aspects of family planning”, it was asserted that “couples have a basic human right to decide freely and responsibly on the number and spacing of their children and a right to adequate education and information in this respect.”335 However, this issue was not dealt with from a human rights perspective but predominantly from a perspective of population control in the face of the (perceived) danger of population growth,336 particularly with regard to “third world” countries.337 A shift in this paradigm can be identified in the deliberations at the Cairo Conference and in the foregoing definition, which critically linked the issue of population control and the concept of “reproductive health and

334 International

Conference on Population and Development Programme of Action, 13 September 1994, para 7.3, reinforced by Beijing Declaration and Platform for Action, 15 September 1995 (Beijing Declaration), Declaration para 29, Platform for Action para 95. 335 Final Act of the International Conference on Human Rights, Teheran, 22 April to 13 May 1968, Resolution XVIII, para 3. 336 See Berro Pizzarossa 2018, pp 2–5; Grey forthcoming, p 9. 337 See Wersig 2012, p 211. On the neo-colonial aspects of the population control policy and coercive birth control programs, see Kuumba 1993.

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rights” to already existing human rights.338 In Cairo, 179 states recognized sexual and reproductive health as enshrined within the right to health.339 The definition illustrates that there is no specific catalogue of reproductive rights, but that the protection of these rights is enshrined within existing human rights law, which—when the gender dimensions are surfaced340 —extends to the reproductive sphere.341 The term “reproductive rights”, in this sense, entails all human rights guarantees relating to reproduction.342 At the 1995 Beijing World Conference on Women, there was a strong focus on reproductive health and reproductive rights. Although several states opposed,343 the Beijing Declaration states that “the explicit recognition and reaffirmation of the right of all women to control all aspects of their health, in particular their own fertility, is basic to their empowerment.”344 The accompanying Beijing Platform for Action goes into detail and further develops the ideas of the Teheran resolution. It recognizes the right of couples and individuals to decide freely and responsibly the number, spacing and timing of their children, as well as the right to access to the information and means to do so and the right to attain the highest standard of sexual and reproductive health.345 The Platform for Action clearly links women’s full enjoyment of human rights to reproductive health, recognizing the right to make decisions concerning reproduction free of discrimination, coercion, and violence.346 Despite this clear focus on reproductive health as a human rights issue, the existence and extent of specific reproductive rights remain disputed. In general terms, reproductive rights concern the protection of autonomy relating to the reproductive sphere, guaranteeing the freedom to choose whether and under which conditions to reproduce. In other words, reproductive rights protect reproductive autonomy.347

338 See

Berro Pizzarossa 2018, p 6; Büchler 2017, p 11. See also Wapler 2018, p 186. On the negotiations during the conference, see Zulficar 1994–1995, pp 1025–1029. On the emergence of the concept of reproductive health under international human rights law, see generally Eriksson 2001, pp 6–10. 339 See Klein and Wapler 2019, p 20. 340 See Oja and Yamin 2016, p 66. 341 See Berro Pizzarossa 2018, pp 8–9. See generally Cook 1994–1995. 342 See Wapler 2018, p 186. 343 Grey forthcoming, p 11. 344 Beijing Declaration, above n 334, Declaration para 17. 345 Ibid., Platform for Action para 95. 346 Ibid., Platform for Action paras 95–96: “The human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence” (at para 96). 347 See Wapler 2018, p 187.

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Specific Guarantees on Reproductive Health and Rights in Human Rights Treaties

Only few human rights instrument explicitly refer to reproductive rights. Two United Nations Conventions are particularly noteworthy in this regard: First, the Convention on the Elimination of Discrimination against Women (CEDAW) of 1979 plays an important role in the protection of women’s reproductive rights.348 While reproductive violations are not limited to women, women’s reproductive capacity—particularly their ability to experience pregnancy and childbirth—entails a particular vulnerability. Neglect for women’s reproductive autonomy not only involves health risks, but also limits their opportunities to full participation and enjoyment of human rights in all areas of private, social, and public life.349 Second, the Convention on the Rights of Persons with Disabilities (CRPD) of 2006350 includes distinct references to reproductive rights. One of the most important reproductive guarantees in these Conventions is the right to freely decide the number and spacing of children, which is listed in Article 16(1)(e) CEDAW351 and Article 23(1)(b) CRPD. The right to decide the number and spacing of children was already included in the Final Act of the 1968 Teheran Conference as well as in the World Population Plan of Action adopted at the 1974 Bucharest World Conference on Population.352 Further guarantees specifically relating to the reproductive sphere are the right to information and advice regarding family planning353 and the right to access to health care services including those related to family planning.354 A further important instrument in this context is the African Union’s Maputo Protocol on the Rights of Women of 2003. This Protocol not only guarantees the rights mentioned above, but includes a detailed enumeration of reproductive rights in its Article 14: 1. States Parties shall ensure that the right to health of women, including sexual and reproductive health is respected and promoted. This includes: 348 See

Klein and Wapler 2019, p 21. ibid.; see also Beijing Declaration, above n 334, Platform for Action para 95. 350 Convention on the Rights of Persons With Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) (CRPD). 351 See also United Nations Committee on the Elimination of Discrimination Against Women 1994, para 21: “The responsibilities that women have to bear and raise children affect their right of access to education, employment and other activities related to their personal development. They also impose inequitable burdens of work on women. The number and spacing of their children have a similar impact on women’s lives and also affect their physical and mental health, as well as that of their children. For these reasons, women are entitled to decide on the number and spacing of their children.” 352 World Population Plan of Action, 19–30 August 1974, paras 14(f), 29(a), see also Berro Pizzarossa 2018, pp 3–4; Grey forthcoming, pp 9–10. 353 Convention on the Elimination of all Forms of Violence Against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981) (CEDAW Convention), Articles 10(h), 14(2)(b); CRPD, above n 350, Article 23(1)(b). 354 CEDAW Convention, above n 353, Articles 12, 14(2)(b); CRPD, above n 350, Article 25(a). 349 See

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a) the right to control their fertility; b) the right to decide whether to have children, the number of children and the spacing of children; c) the right to choose any method of contraception; d) the right to self-protection and to be protected against sexually transmitted infections, including HIV/AIDS; e) the right to be informed on one’s health status and on the health status of one’s partner, particularly if affected with sexually transmitted infections, including HIV/AIDS, in accordance with internationally recognised standards and best practices; g) the right to have family planning education. 2. States Parties shall take all appropriate measures to: a) provide adequate, affordable and accessible health services, including information, education and communication programmes to women especially those in rural areas; b) establish and strengthen existing pre-natal, delivery and post-natal health and nutritional services for women during pregnancy and while they are breast-feeding; c) protect the reproductive rights of women by authorizing medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus.355

With this list, the Maputo Protocol explicitly recognizes a wide range of reproductive rights, making it the most progressive instrument in this context.356 It is also the only legally binding human rights instrument that explicitly guarantees access to abortion (in certain cases) as a human right.357

3.4.1.3

Reproductive Health and Rights Within General Human Rights Guarantees

Beyond these explicit guarantees, reproductive rights are also enshrined within more general human rights, because existing human rights law also includes the reproductive sphere.358 The most relevant guarantees in this regard are the right to life,359

355 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa,

opened for signature 11 July 2003 (entered into force 25 November 2005), Article 14. also Klimke 2019, pp 101–102. 357 See Zampas and Gher 2008, p 250. 358 See generally Klein and Wapler 2019, pp 20–22; United Nations Population Fund et al. 2014. 359 International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR), Article 6(1); Universal Declaration of Human Rights, General Assembly Resolution 217A(III), UN Doc. A/RES/217(III), 10 December 1948 (Universal Declaration of Human Rights), Article 3. 356 See

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the right to health,360 the right to liberty and security of the person,361 the right not to be subjected to torture or to cruel, inhuman, or degrading treatment,362 the right to privacy,363 and the right to equality and non-discrimination.364 In interpreting these rights, and in surfacing aspects relating to reproduction, valuable guidance is provided in the General Comments and Recommendations issued by human rights treaty bodies, which monitor the state parties’ compliance with the respective treaty. Pertaining to the right to health, the Committee on Economic, Social and Cultural Rights adopted General Comment No. 22 on sexual and reproductive health, which is directed at the state parties of the International Covenant on Economic, Social and Cultural Rights in order to assist them to fulfil their obligations under the treaty.365 General Comment No. 22, which according to one of the Committee’s members has been the most difficult comment to adopt so far,366 states that the rights to sexual and reproductive health are integral parts of the right to health under Article 12 of the Convention,367 and that these rights are indivisible from and interdependent with other human rights.368 According to the Committee, states must provide for the availability, accessibility, acceptability, and quality of sexual and reproductive health care services,369 including for example providing access to contraceptives and abortion services.370 The Committee also clarifies that states are obligated to reform laws that impede the exercise of reproductive rights, such as laws criminalizing abortion.371 360 CEDAW

Convention, above n 353, Articles 12, 14(2); International Covenant on Economic, Social and Cultural Rights, opened for signature 19 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (ICESCR), Article 12; Universal Declaration of Human Rights, above n 359, Article 25. 361 ICCPR, above n 359, Article 9(1); Universal Declaration of Human Rights, above n 359, Article 3. 362 ICCPR, above n 359, Article 7; Universal Declaration of Human Rights, above n 359, Article 5. 363 European Convention on Human Rights, opened for signature 4 November 1950, ETS no. 005 (entered into force 3 September 1953), Article 8(1); ICCPR, above n 359, Article 17. According to the European Court of Human Rights, the right to privacy under the ECHR extends to the decision to become and not to become a parent, see European Court of Human Rights, Evans v The United Kingdom, Grand Chamber Judgment, 10 April 2007, no. 6339/05, para 71. For an analysis of the Court’s jurisdiction on reproductive issues, see generally Oja and Yamin 2016. 364 CEDAW Convention, above n 353, Articles 1–3; ICCPR, above n 359, Articles 2(1), 3, 26; ICESCR, above n 360, Articles 2(2), 3; Universal Declaration of Human Rights, above n 359, Article 2. 365 United Nations Committee on Economic, Social and Cultural Rights 2016, para 3, building upon General Comment No. 14 (2000). 366 Statement by Michael Windfuhr at a panel discussion on Women’s Rights in UN Human Rights Treaties at Humboldt-Universität zu Berlin, 22 May 2019. 367 United Nations Committee on Economic, Social and Cultural Rights 2016, para 1. 368 Ibid., para 10. See also Berro Pizzarossa 2018, p 11. 369 United Nations Committee on Economic, Social and Cultural Rights 2016, paras 11–21. See also United Nations Committee on Economic, Social and Cultural Rights 2000, paras 14, 21. 370 United Nations Committee on Economic, Social and Cultural Rights 2016, paras 28, 45. 371 Ibid., paras 28, 34, 40.

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The Committee on the Elimination of Discrimination against Women (CEDAW Committee) elaborates on the issue of reproductive health as encompassed within the right to health (Article 12 of CEDAW) in its General Recommendation No. 24. It calls upon states to ensure “women’s access to health services, education and information, including in the area of sexual and reproductive health”.372 Concerning family planning, the CEDAW Committee recommends to amend any legislation criminalizing abortion and to “prioritize the prevention of unwanted pregnancy through family planning and sex education”.373 In even more explicit terms, the CEDAW Committee calls upon states to repeal provisions criminalizing abortions in its General Recommendation No. 35 issued in 2017.374 In a joint statement, the Committee on the Rights of Persons with Disabilities and the CEDAW Committee also affirm that states are under the obligation to ensure women’s full and indiscriminate enjoyment of sexual and reproductive health and rights, including access to safe and legal abortion.375 The two Committees further refer to structural and intersectional discrimination of women and persons with disabilities as well as the need to repeal discriminatory laws and policies that undermine women’s reproductive autonomy and choice. Regarding the right to life, the Human Rights Committee, which monitors the implementation of the International Covenant on Civil and Political Rights, adopted its General Comment No. 36 on Article 6, in which it also focuses on abortion access. It states that [s]tates parties must provide safe, legal and effective access to abortion where the life and health of the pregnant woman or girl is at risk, or where carrying a pregnancy to term would cause the pregnant woman or girl substantial pain or suffering, most notably where the pregnancy is the result of rape or incest or is not viable.376

In this context, the Human Rights Committee also calls upon state parties to ensure access to information and education about sexual and reproductive health and to affordable contraceptive methods.377 Other institutions have also addressed reproductive rights. For example, the Parliamentary Assembly of the Council of Europe explicitly recognizes women’s right to safe and legal abortion and invites its member states to ensure access.378 The Commissioner for Human Rights of the Council of Europe compiled an Issue Paper on Women’s Sexual and Reproductive Health and Rights in Europe in 2017, calling upon states to reaffirm commitments to the protection of these rights and, among other 372 United

Nations Committee on the Elimination of Discrimination Against Women 1999, para 31(b). 373 Ibid., para 31(c). 374 United Nations Committee on the Elimination of Discrimination Against Women 2017, para 29(c)(i). 375 United Nations Committee on the Rights of Persons With Disabilities and United Nations Committee on the Elimination of Discrimination Against Women 2018. 376 United Nations Human Rights Committee 2018, para 8. 377 Ibid. 378 Parliamentary Assembly of the Council of Europe 2008.

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aspects, to “ensure all women’s access to safe and legal abortion care”.379 Ensuring universal access to reproductive health-care services, including family planning, is also part of the United Nations’ 2030 Agenda for Sustainable Development.380

3.4.1.4

Reproductive Rights in the Current Human Rights Discourse: The Danger of “Rollback”?

Despite this clear and indisputable recognition of reproductive health and rights as a human rights issue on the international level, reproductive rights remain controversial. In fact, there appears to be an increasing rollback concerning issues of sexual and reproductive health and rights.381 This rollback is illustrated, for example, by the adoption of Security Council Resolution 2467 of 2019, which addresses conflictrelated sexual violence.382 The resolution contains important new policies such as the recognition of a “survivor-centered approach”383 and of the specific needs of women who have become pregnant as a result of conflict-related sexual violence as well as those of the children born as a consequence.384 However, it fails to mention the importance of providing for sexual and reproductive health during and after conflicts. The resolution’s original draft included a section on promoting access to sexual and reproductive health services for survivors of conflict-related violence, but the United States reportedly demanded the elimination of all language relating to “reproductive health”, which in their view refers to abortion, and threatened to veto the resolution altogether.385 Since a resolution cannot be adopted if a permanent member of the Security Council—like the United States—vetoes it, the adopted version does not contain a reference to reproductive health. This is particularly noteworthy because promoting “sexual and reproductive health” has been a commonly used phrase in various international contexts and by international institutions for decades. The United States initiative, which also included eliminating all references to the International Criminal Court as well as a proposed United Nations monitoring body on conflict-related sexual violence, illustrates that the protection of reproductive rights remains a highly controversial and politically charged issue.

379 Council of Europe Commissioner for Human Rights 2017, pp 9–14 (see particularly recommen-

dation V at p 11). See also Klein and Wapler 2019, p 22. Nations General Assembly 2015, goals 3.7 and 5.6. 381 Council of Europe Commissioner for Human Rights 2017, p 18; United Nations Committee on the Rights of Persons With Disabilities and United Nations Committee on the Elimination of Discrimination Against Women 2018. 382 United Nations Security Council 2019b. 383 Ibid., para 16. 384 Ibid., para 18. 385 See Gramer and Lynch, How a U.N. Bid to Prevent Sexual Violence Turned Into a Spat Over Abortion, Foreign Policy, 23 April 2019, https://foreignpolicy.com/2019/04/23/united-nationsbid-end-sexual-violence-rape-support-survivors-spat-trump-administration-sexual-reproductivehealth-dispute-abortion-internal-state-department-cable/ (accessed 24 October 2020). 380 United

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3.4.2 Reproductive Violence as a Human Rights Violation Against the background of reproductive human rights, certain forms of reproductive violence constitute violations of international human rights law. An explicit prohibition can be found in the Vienna Declaration and Programme of Action, which was adopted at the United Nations World Conference on Human Rights in Vienna in June 1993.386 It names forced pregnancy as a violation of the human rights of women in situations of armed conflict and a violation of international human rights and humanitarian law.387 Similarly, the Beijing Declaration and Platform for Action, which was adopted in 1995 at the Fourth World Conference on Women, also states that forced pregnancy is a grave violation of women’s human rights,388 and further lists the act of forced abortion389 as well as forced sterilization and coercive or forced use of contraceptives390 . Forced pregnancy was also explicitly mentioned as a violation of women’s human rights in the yearly resolutions, beginning in 1995, adopted by the United Nations Commission on Human Rights on the elimination of violence against women391 as well as in the corresponding resolutions on children’s rights in 1997 and 1998.392 Article 39 of the Council of Europe’s Istanbul Convention explicitly obligates states to criminalize practices of abortion and sterilization when undertaken without prior and informed consent.393 Similarly, the CEDAW Committee’s General Recommendation No. 19 states that compulsory sterilization and abortion are violations of women’s right to decide on the number and spacing of their children under Article 16(1)(e) of CEDAW394 and recommends that state parties take measures to prevent coercion in regard to fertility and reproduction.395 Relating to Article 16(1)(e) and in the context of reports on “coercive practices which have serious consequences for women, such as forced pregnancies, abortions or sterilization”, the CEDAW 386 See

also Chap. 2, Sect. 2.5.2. Declaration and Programme of Action, 25 June 1993, II para 38. 388 Beijing Declaration, above n 334, Platform for Action paras 11, 114. 389 Ibid., Platform for Action paras 11, 115. 390 Ibid., Platform for Action para 115. See also Eriksson 2000, pp 252–259. 391 United Nations Commission on Human Rights 1995, para 5; United Nations Commission on Human Rights 1996, para 5; United Nations Commission on Human Rights 1997a, para 4; United Nations Commission on Human Rights 1998a, para 4; United Nations Commission on Human Rights 1999, paras 5–6; United Nations Commission on Human Rights 2001, para 11; United Nations Commission on Human Rights 2002, para 15; United Nations Commission on Human Rights 2003, para 15; United Nations Commission on Human Rights 2004, para 16; United Nations Commission on Human Rights 2005, para 18. 392 United Nations Commission on Human Rights 1997b, para 13(a); United Nations Commission on Human Rights 1998b, para 13(a). 393 Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, opened for signature 11 May 2011, CETS no. 210 (entered into force 1 August 2014), Article 39. 394 United Nations Committee on the Elimination of Discrimination Against Women 1993, para 22. 395 Ibid., para 24(m). See also Eriksson 2000, pp 252–253. 387 Vienna

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Committee also states in General Recommendation No. 21 that “decisions to have children or not […] must not […] be limited by spouse, parent, partner or Government”.396 In General Recommendation No. 30, it lists the acts of forced impregnation, forced termination of pregnancy, and forced sterilization as forms of conflict-related gender-based violence against women, which amount to discrimination prohibited under the Convention and a violation of human rights.397 Furthermore, in General Recommendation No. 35, the Committee elaborates on certain forms of reproductive violence and acknowledges that they may amount to torture: Violations of women’s sexual and reproductive health and rights, such as forced sterilization, forced abortion, forced pregnancy, criminalization of abortion, denial or delay of safe abortion and/or post-abortion care, forced continuation of pregnancy, and abuse and mistreatment of women and girls seeking sexual and reproductive health information, goods and services, are forms of gender-based violence that, depending on the circumstances, may amount to torture or cruel, inhuman or degrading treatment.398

This link between acts such as forced abortion or sterilization and torture had already been addressed by the UN Human Rights Committee in its General Comment No. 28 of 2000 on the Equality of Rights between Men and Women; in this regard, the Committee also mentioned access to safe abortion when the pregnancy is the result of rape.399 In the literature, it has further been argued that practices such as the forced use of contraceptives, forced pregnancy, forced impregnation, forced sterilization, and forced abortion violate the right to establish a family guaranteed under Article 10(1) of the International Covenant on Economic, Social and Cultural Rights.400 Generally, gender-based violence, including reproductive violence, must be understood as a form of discrimination, which impairs women’s ability to fully enjoy their human rights.401 Accordingly, reproductive violence, such as forced sterilization, forced abortion, forced pregnancy, and forced contraception, constitutes a human rights violation.402 In summary, international human rights law prohibits conflict-related reproductive violence. Evidently, the precise scope of the protection of reproductive rights under the international human rights framework remains subject to debate. Nevertheless, as shown above, the prohibition of specific forms of reproductive violence has been recognized in several conventions, instruments, and treaty-monitoring bodies’ statements. 396 United Nations Committee on the Elimination of Discrimination Against Women 1994, para 22. 397 United Nations Committee on the Elimination of Discrimination Against Women 2013, para 34. 398 United Nations Committee on the Elimination of Discrimination Against Women 2017, para 18. 399 United

Nations Human Rights Committee 2000, para 11. Eriksson 2002, p 131 (see also footnote 69). 401 United Nations Committee on the Elimination of Discrimination Against Women 1993, para 1, repeated and expanded in United Nations Committee on the Elimination of Discrimination Against Women 2017. See also Gardam and Jarvis 2001, p 146; McQuigg 2018, pp 307–308; United Nations General Assembly 2019, para 21. 402 See Eriksson 2000, pp 324–329. 400 See

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3.5 Conclusion In recent decades, the human rights framework on reproductive rights and reproductive violence has shown immense progress, despite the recent rollback effect which is clearly visible in the discourse. In the context of international criminal law, however, conflict-related reproductive violence has largely remained in the shadows. For one thing, it is generally not conceptualized as a distinct form of gender-based violence, but only dealt with as a by-product or side effect of sexualized violence. While extensive documentations of conflict-related reproductive violence exist, the focus has mostly been on the simultaneous commission of sexualized violence. If at all, reproductive violence was only addressed in ethnicity- or group-related contexts, namely as genocidal acts or elements of an “ethnic cleansing” policy. The criminal trials dealing with forced sterilization after World War II constitute the most important precedent in this regard. Despite the progressive development of the human rights framework, however, the focus on the collective dimension of reproductive violence in international criminal law has thus far concealed its distinctive characteristic: the violation of an individual’s reproductive autonomy.

References Adams A (2013) Der Tatbestand der Vergewaltigung im Völkerstrafrecht. Duncker & Humblot, Berlin Allen B (1996) Rape Warfare: The Hidden Genocide in Bosnia-Herzegovina and Croatia. University of Minnesota Press, Minneapolis/London Amnesty International (2004) Peru: The Truth and Reconciliation Commission: A First Step Towards a Country Without Injustice, AMR 46/003/2004. https://www.amnesty.org/en/docume nts/AMR46/003/2004/en/. Accessed 24 October 2020 Apio E (2007) Uganda’s Forgotten Children of War. In: Carpenter RC (ed) Born of War: Protecting Children of Sexual Violence Survivors in Conflict Zones. Kumarian Press, Bloomfield, pp 94–109 Arendt H (2006, originally published 1963) Eichmann in Jerusalem: A Report on the Banality of Evil. Penguin Books, New York Askin KD (1997) War Crimes Against Women: Prosecution in International War Crimes Tribunals. Martinus Nijhoff, The Hague Askin KD (1999) Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status. The American Journal of International Law 93:97–123 Askin KD (2003) The Quest for Post-Conflict Gender Justice. Columbia Journal of Transnational Law 41:509–521 Askin KD (2004) The International Criminal Tribunal for Rwanda and its Treatment of Crimes Against Women. In: Carey J, Dunlap W, Pritchard RJ (eds) International Humanitarian Law, vol 2: Challenges. Brill, Leiden, pp 33–88 Askin KD (2013) Treatment of Sexual Violence in Armed Conflicts: A Historical Perspective and the Way Forward. In: De Brouwer A-MLM, Ku C, Römkens R, van den Herik L (eds) Sexual Violence as an International Crime: Interdisciplinary Approaches. Intersentia, Cambridge, pp 19–55 Baldi G, MacKenzie M (2007) Silent Identities: Children Born of War in Sierra Leone. In: Carpenter RC (ed) Born of War: Protecting Children of Sexual Violence Survivors in Conflict Zones. Kumarian Press, Bloomfield, pp 78–93

130

3 Historical Perspectives on Reproductive Violence …

Barrett JQ (2010) Raphael Lemkin and “Genocide” at Nuremberg, 1945–1946. In: Safferling C, Conze E (eds) The Genocide Convention Sixty Years After its Adoption. T.M.C. Asser Press, The Hague, pp 35–54 Becker E (1986) When the War Was Over: Cambodia and the Khmer Rouge Revolution. Simon & Schuster, New York Bedont B, Hall-Martinez K (1999) Ending Impunity for Gender Crimes Under the International Criminal Court. The Brown Journal of World Affairs 6(1):65–85 Benedict S, Georges JM (2006) Nurses and the Sterilization Experiments of Auschwitz: A Postmodernist Perspective. Nursing Inquiry 13:277–288 Berro Pizzarossa L (2018) Here to Stay: The Evolution of Sexual and Reproductive Health and Rights in International Human Rights Law. Laws 7:29 Bock G (1986) Zwangssterilisation im Nationalsozialismus: Studien zur Rassenpolitik und Frauenpolitik. Westdeutscher Verlag, Opladen Boon K (2000) Rape and Forced Pregnancy Under the ICC Statute: Human Dignity, Autonomy, and Consent. Columbia Human Rights Law Review 32:625–675 Bridgewater PD (2001) Un/Re/Dis Covering Slave Breeding in Thirteenth Amendment Jurisprudence. Washington and Lee Journal of Civil Rights and Social Justice 7:11–43 Brownmiller S (1975) Against Our Will: Men, Women and Rape. Simon & Schuster, New York Büchler A (2017) Reproduktive Autonomie und Selbstbestimmung: Dimensionen, Umfang und Grenzen an den Anfängen menschlichen Lebens. Helbing Lichtenhahn Verlag, Basel Carpenter RC (2000) Forced Maternity, Children’s Rights and the Genocide Convention: A Theoretical Analysis. Journal of Genocide Research 2:213–244 Carpenter RC (ed) (2007) Born of War: Protecting Children of Sexual Violence Survivors in Conflict Zones. Kumarian Press, Bloomfield Carpenter RC (2010) Forgetting Children Born of War: Setting the Human Rights Agenda in Bosnia and Beyond. Columbia University Press, New York Charlesworth H (1999) Feminist Methods in International Law. The American Journal of International Law 93:379–394 Chinkin C, Yoshida K (2019) Reproductive Violence and Forced Recruitment: Colombia’s Landmark Ruling for Ex-Combatant Women and Girls. LSE Centre for Women, Peace and Security. https://blogs.lse.ac.uk/wps/2019/12/18/reproductive-violence-and-forced-recruitmentcolombias-landmark-ruling-for-ex-combatant-women-and-girls/. Accessed 24 October 2020 Commission of Experts (1994) Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), Annex to UN Doc. S/1994/674 Cook RJ (1994–1995) Human Rights and Reproductive Self-Determination. American University Law Review 44:975–1016 Copelon R (1994) Surfacing Gender: Re-Engraving Crimes Against Women in Humanitarian Law. Hastings Women’s Law Journal 5:243–266 Copelon R (2000) Gender Crimes as War Crimes: Integrating Crimes Against Women Into International Criminal Law. McGill Law Journal 46:217–240 Coulter C (2009) Bush Wives and Girl Soldiers: Women’s Lives Through War and Peace in Sierra Leone. Cornell University Press, Ithaca, N.Y. Council of Europe Commissioner for Human Rights (2017) Women’s Sexual and Reproductive Health and Rights in Europe: Issue Paper. https://rm.coe.int/women-s-sexual-and-reproductivehealth-and-rights-in-europe-issue-pape/168076dead. Accessed 24 October 2020 D’Costa B, Hossain S (2010) Redress for Sexual Violence Before the International Crimes Tribunal in Bangladesh: Lessons From History, and Hopes for the Future. Criminal Law Forum 21:331–359 Daniel-Wrabetz J (2007) Children Born of War Rape in Bosnia-Herzegovina and the Convention on the Rights of the Child. In: Carpenter RC (ed) Born of War: Protecting Children of Sexual Violence Survivors in Conflict Zones. Kumarian Press, Bloomfield, pp 21–39 Davis AY (2019, originally published 1981) Women, Race & Class. Penguin Books, London De Brouwer A-MLM (2005) Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR. Intersentia, Antwerp/Tilburg

References

131

De Langis T, Strasser J, Kim T, Taing S (2014) Like Ghost Changes Body: A Study on the Impact of Forced Marriage Under the Khmer Rouge Regime. Transcultural Psychosocial Organization, Phnom Penh De Vos D (2016) Can the ICC Prosecute Forced Contraception? https://me.eui.eu/dieneke-de-vos/ blog/can-the-icc-prosecute-forced-contraception/. Accessed 24 October 2020 De Vos D (2020) Colombia’s Constitutional Court Issues Landmark Decision Recognising Victims of Reproductive Violence in Conflict. IntLawGrrls. https://ilg2.org/2020/01/11/colombias-consti tutional-court-issues-landmark-decision-recognising-victims-of-reproductive-violence-in-con flict/. Accessed 24 October 2020 DeLaet D (2007) Theorizing Justice for War Babies. In: Carpenter RC (ed) Born of War: Protecting Children of Sexual Violence Survivors in Conflict Zones. Kumarian Press, Bloomfield, pp 128– 148 Dowds E (2020) Feminist Engagement With International Criminal Law: Norm Transfer, Complementarity, Rape and Consent. Hart Publishing, Oxford Drake AM (2012) Aimed at Protecting Ethnic Groups or Women? A Look at Forced Pregnancy Under the Rome Statute. William & Mary Journal of Women and the Law 18:595–623 EC Investigative Mission Into the Treatment of Treatment of Muslim Women in the Former Yugoslavia (1993) Report to EC Foreign Ministers (Warburton Mission II Report). www.womenaid.org/press/info/humanrights/warburtonfull.htm. Accessed 24 October 2020 Elander M (2016) Prosecuting the Khmer Rouge Marriages. Australian Feminist Law Journal 42:163–175 Epik A (2018) Die Verbrechen des “Islamischen Staates” gegen die Jesid*innen. Kritische Justiz 51:33–44 Eriksson MK (2000) Reproductive Freedom: In the Context of International Human Rights and Humanitarian Law. Martinus Nijhoff, The Hague/London Eriksson MK (2001) Abortion and Reproductive Health: Making International Law More Responsive to Women’s Needs. In: Askin KD, Koenig DM (eds) Women and International Human Rights Law, vol 3. Transnational Publishers, New York, pp 3–71 Eriksson MK (2002) Family Rights and the United Nations Covenant on Economic, Social and Cultural Rights: Article 10(1). In: Chapman A, Russel S (eds) Core Obligations: Building a Framework for Economic, Social and Cultural Rights. Intersentia, Antwerp, pp 115–146 Gardam JG, Jarvis MJ (2001) Women, Armed Conflict and International Law. Kluwer Law International, The Hague/London Getgen JE (2009) Untold Truths: The Exclusion of Enforced Sterilizations From the Peruvian Truth Commission’s Final Report. Boston College Third World Law Journal 29:1–34 Global Justice Center (2016) Daesh’s Gender-Based Crimes Against Yazidi Women and Girls Include Genocide. https://globaljusticecenter.net/files/CounterTerrorismTalkingPoints.4.7.2016. pdf. Accessed 24 October 2020 Goldstein AT (1993) Recognizing Forced Impregnation as a War Crime Under International Law: A Special Report of the International Program. The Center for Reproductive Law & Policy, New York Green J, Copelon R, Cotter P, Stephens B (1994) Affecting the Rules for the Prosecution of Rape and Other Gender-Based Violence Before the International Criminal Tribunal for the Former Yugoslavia: A Feminist Proposal and Critique. Hastings Women’s Law Journal 5:171–241 Greve K (2008) Vergewaltigung als Völkermord: Aufklärung sexueller Gewalt gegen Frauen vor Internationalen Strafgerichten. Nomos, Baden-Baden Grey R (2017) The ICC’s First “Forced Pregnancy” Case in Historical Perspective. Journal of International Criminal Justice 15:905–930 Grey R (2018) Gendering the Khmer Rouge Period: Last Friday’s Judgment. IntLawGrrls. https:// ilg2.org/2018/11/19/gendering-the-khmer-rouge-period-last-fridays-judgment/. Accessed 24 October 2020

132

3 Historical Perspectives on Reproductive Violence …

Grey R (forthcoming) Reproductive Crimes in International Criminal Law. In: Rosenthal I, Oosterveld V, SáCouto S (eds) Gender and International Criminal Law. Oxford University Press, Oxford Harbour G (2016) International Concern Regarding Conflict-Related Sexual Violence in the LeadUp to the ICTY’s Establishment. In: Brammertz S, Jarvis MJ (eds) Prosecuting Conflict-Related Sexual Violence at the ICTY. Oxford University Press, Oxford, pp 19–32 Hausner G (1962) Text of the Indictment Against Eichmann: Indictment Presented by Attorney General. The American Jewish Year Book 63:120–131 Helsinki Watch (1993) War Crimes in Bosnia-Hercegovina, vol II. Human Rights Watch, New York/London International Center for Transitional Justice (2015) From Rejection to Redress: Overcoming Legacies of Conflict-Related Sexual Violence in Northern Uganda. https://www.ictj.org/sites/default/ files/ICTJ-Report-Uganda-Children-2015.pdf. Accessed 24 October 2020 Irvin-Erickson D (2018) Sixty Years of Failing to Prosecute Sexual Crimes: From Raphaël Lemkin at Nuremberg to Lubanga at the International Criminal Court. In: Connellan MM, Fröhlich C (eds) A Gendered Lens for Genocide Prevention. Palgrave Macmillan UK, London, pp 83–109 Jeßberger F (2009) The Definition and the Elements of the Crime of Genocide. In: Gaeta P (ed) The UN Genocide Convention: A Commentary. Oxford University Press, Oxford, pp 87–111 Klein L, Wapler F (2019) Reproduktive Gesundheit und Rechte. Aus Politik und Zeitgeschichte 69(20):20–26 Klimke R (2019) Mama Africa und ihre Töchter – Der Beitrag des afrikanischen Menschenrechtssystems zur Förderung der Rechte der Frau. In: Kappler K, Vogt V (eds) Gender im Völkerrecht: Konfliktlagen und Errungenschaften. Nomos, Baden-Baden, pp 89–112 Kotsadam A, Østby G (2019) Armed Conflict and Maternal Mortality: A Micro-Level Analysis of Sub-Saharan Africa, 1989–2013. Social Science & Medicine 239:112526 Krause P (2002) Der Eichmann-Prozess in der Deutschen Presse. Campus, Frankfurt am Main/New York Kreß C (2018) § 6 Völkerstrafgesetzbuch. In: Joecks W, Miebach K (eds) Münchener Kommentar zum Strafgesetzbuch: Band 8: Nebenstrafrecht III, Völkerstrafgesetzbuch, 3rd edn. C.H. Beck, Munich Kuschnik B (2009) Der Gesamttatbestand des Verbrechens gegen die Menschlichkeit: Herleitungen, Ausprägungen, Entwicklungen. Duncker & Humblot, Berlin Kuumba MB (1993) Perpetuating Neo-Colonialism Through Population Control: South Africa and the United States. Africa Today 40(3):79–85 Laverty C, De Vos D (2020) “Ntaganda” in Colombia: Intra-Party Reproductive Violence at the Colombian Constitutional Court. Opinio Juris. https://opiniojuris.org/2020/02/25/ntagandain-colombia-intra-party-reproductive-violence-at-the-colombian-constitutional-court/. Accessed 24 October 2020 Lawrence J (2000) The Indian Health Service and the Sterilization of Native American Women. American Indian Quarterly 24:400–419 Leatherman JL (2011) Sexual Violence and Armed Conflict. Polity, Cambridge Lemkin R (1944) Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress. Publications of the Carnegie Endowment for International Peace, Division of International Law, Washington D.C. Ley A (2004) Zwangssterilisation und Ärzteschaft: Hintergründe und Ziele ärztlichen Handelns 1934–1945. Campus, Frankfurt am Main Lifton RJ (1988) Ärzte im Dritten Reich. Klett-Cotta, Stuttgart Livy (1905) The History of Rome. J. M. Dent & Sons, Ltd., London Lobato M (2016) Forced Pregnancy During the Khmer Rouge Regime: Acknowledging Forced Pregnancy as a Distinct Crime in the ECCC Proceedings. Cambodian Human Rights Action Coalition, Phnom Penh MacKinnon CA (1994) Rape, Genocide, and Women’s Human Rights. Harvard Women’s Law Journal 17:5–16

References

133

Marczak N (2018) A Century Apart: The Genocidal Enslavement of Armenian and Yazidi Women. In: Connellan MM, Fröhlich C (eds) A Gendered Lens for Genocide Prevention. Palgrave Macmillan UK, London, pp 133–162 Markovic M (2007) Vessels of Reproduction: Forced Pregnancy and the ICC. Michigan State Journal of International Law 16:439–458 McQuigg RJA (2018) Is it Time for a UN Treaty on Violence Against Women? The International Journal of Human Rights 22:305–324 Montoya C (2019) Race. In: Shepherd LJ (ed) Handbook on Gender and Violence. Edward Elgar, Cheltenham/Northampton, pp 29–42 Mueller U (2004) Die Nationalsozialistische Haltung zur Reproduktionsmedizin und die Bioethische Debatte Seither. In: Mackensen R (ed) Bevölkerungslehre und Bevölkerungspolitik im “Dritten Reich”. Leske + Budrich, Wiesbaden, pp 241–275 Mukangendo MC (2007) Caring for Children Born of Rape in Rwanda. In: Carpenter RC (ed) Born of War: Protecting Children of Sexual Violence Survivors in Conflict Zones. Kumarian Press, Bloomfield, pp 40–52 Neenan J (2018) The Role of the ICC in Protecting the Rights of Children Born of Rape in War. EJIL:Talk! https://www.ejiltalk.org/the-role-of-the-icc-in-protecting-the-rights-of-chi ldren-born-of-rape-in-war/. Accessed 24 October 2020 Nowrojee B (1996) Shattered Lives: Sexual Violence During the Rwandan Genocide and its Aftermath. Human Rights Watch, New York/London Office of the High Commissioner for Human Rights, United Nations Entity for Gender Equality and the Empowerment of Women, Joint United Nations Programme on HIV and AIDS, United Nations Development Programme, United Nations Population Fund, United Nations Children’s Fund and World Health Organization (2014) Eliminating Forced, Coercive and Otherwise Involuntary Sterilization: An Interagency Statement. https://www.unwomen.org/-/media/headquarters/attachments/sections/news%20and%20e vents/stories/forced%20sterilization%20document%20pdf.pdf?la=en. Accessed 24 October 2020 Oja L, Yamin AE (2016) “Woman” in the European Human Rights System: How is the Reproductive Rights Jurisprudence of the European Court of Human Rights Constructing Narratives of Women’s Citizenship? Columbia Journal of Gender and Law 32:62–95 Oosterveld V, Sellers PV (2016) Issues of Sexual and Gender-Based Violence at the ECCC. In: Meisenberg SM, Stegmiller I (eds) The Extraordinary Chambers in the Courts of Cambodia: Assessing Their Contribution to International Criminal Law. T.M.C. Asser Press, The Hague, pp 321–351 Parliamentary Assembly of the Council of Europe (2008) Access to Safe and Legal Abortion in Europe, Resolution 1607 (2008) Paul A (2008) Kritische Analyse und Reformvorschlag zu Art. II Genozidkonvention. Springer, Berlin/Heidelberg/New York Pegoraro L (2015) Second-Rate Victims: The Forced Sterilization of Indigenous Peoples in the USA and Canada. Settler Colonial Studies 5:161–173 Perper JA, Cina SJ (2010) When Doctors Kill: Who, Why, and How. Springer, New York Project South Institute for the Elimination of Poverty & Genocide (2020) Lack of Medical Care, Unsafe Work Practices, and Absence of Adequate Protection Against COVID-19 for Detained Immigrants and Employees Alike at the Irwin County Detention Center. https://projectsouth.org/ wp-content/uploads/2020/09/OIG-ICDC-Complaint-1.pdf. Accessed 24 October 2020 Reinsberg L (2020) China’s Forced Sterilization of Uyghur Women Violates Clear International Law. Just Security. https://www.justsecurity.org/71615/chinas-forced-sterilization-of-uyg hur-women-violates-clear-international-law/. Accessed 24 October 2020 Reinsberg L, Paoletti S (2020) The U.S. Bears International Responsibility for Forced Sterilization of Women in ICE Detention. Just Security. https://www.justsecurity.org/72587/the-u-s-bears-intern ational-responsibility-for-forced-sterilization-of-women-in-ice-detention/. Accessed 24 October 2020

134

3 Historical Perspectives on Reproductive Violence …

Rimmer SH (2010) Gender and Transitional Justice: The Women of East Timor. Routledge, London Rothmaler C (1991) Sterilisationen nach dem “Gesetz zur Verhütung erbkranken Nachwuchses” vom 14. Juli 1933: Eine Untersuchung zur Tätigkeit des Erbgesundheitsgerichtes und zur Durchführung des Gesetzes in Hamburg in der Zeit zwischen 1934 und 1944. Matthiesen, Husum Schabas W (2009) Genocide in International Law: The Crime of Crimes, 2nd edn. Cambridge University Press, Cambridge Schwarz A (2019) Das völkerrechtliche Sexualstrafrecht: Sexualisierte und geschlechtsbezogene Gewalt vor dem Internationalen Strafgerichtshof. Duncker & Humblot, Berlin Scott AC (2010) Prosecution of Reproductive Crimes Committed During the Halabja Attack in the Iraqi High Tribunal. Berkeley Journal of International Law Publicist 6:11–27 Seto D (2013) No Place for a War Baby: The Global Politics of Children Born of Wartime Sexual Violence. Ashgate, Farnham/Burlington Sifris R (2016) The Involuntary Sterilisation of Marginalised Women: Power, Discrimination, and Intersectionality. Griffith Law Review 25:45–70 Simon J (2001) Kriminalbiologie und Zwangssterilisation: Eugenischer Rassismus 1920–1945. Waxmann, Münster Soh SEJ (2006) Forced Pregnancy: Codification in the Rome Statute and its Prospect as Implicit Genocide. New Zealand Journal of Public and International Law 4:311–337 Special Rapporteur of the Commission on Human Rights (1993) Report on the Situation of Human Rights in the Territory of the Former Yugoslavia, Pursuant to Commission Resolution 1992/S-1/1 of 14 August 1992, UN Doc. E/CN.4/1993/50 Spitz V (2005) Doctors From Hell: The Horrific Account of Nazi Experiments on Humans. Sentient Publications, Boulder Stiglmayer A (1993) Vergewaltigungen in Bosnien-Herzegowina. In: Stiglmayer A (ed) Massenvergewaltigung: Krieg gegen die Frauen. Kore, Freiburg, pp 109–217 The Office of the Prosecutor of the International Criminal Court (2012) Situation in Colombia: Interim Report. https://www.icc-cpi.int/NR/rdonlyres/3D3055BD-16E2-4C83-BA85-35B CFD2A7922/285102/OTPCOLOMBIAPublicInterimReportNovember2012.pdf. Accessed 24 October 2020 The Office of the Prosecutor of the International Criminal Court (2014) Policy Paper on Sexual and Gender-Based Crimes. https://www.icc-cpi.int/iccdocs/otp/OTP-Policy-Paper-on-Sexualand-Gender-Based-Crimes--June-2014.pdf. Accessed 24 October 2020 The Women’s International War Crimes Tribunal for the Trial of Japan’s Military Sexual Slavery (2001) The Prosecutors and the Peoples of the Asia-Pacific Region v Hirohito Emperor Showa et al. www.internationalcrimesdatabase.org/Case/981/The-Prosecutors-and-the-Peoples-of-theAsia-Pacific-Region/. Accessed 24 October 2020 Toy-Cronin BA (2010) What is Forced Marriage? Towards a Definition of Forced Marriage as a Crime Against Humanity. Columbia Journal of Gender and Law 19:539–590 United Nations Commission for the Investigation of War Crimes (1943) Notes of Unofficial Preliminary Meeting Held at 2.30 p.m. on the 26th October, 1943, at the Royal Courts of Justice, London. https://www.legal-tools.org/en/doc/ad8990/. Accessed 24 October 2020 United Nations Commission on Human Rights (1995) Resolution 1995/85 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/1995/85 United Nations Commission on Human Rights (1996) Resolution 1996/49 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/1996/49 United Nations Commission on Human Rights (1997a) Resolution 1997/44 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/1997/44 United Nations Commission on Human Rights (1997b) Resolution 1997/78 on Rights of the Child, UN Doc. E/CN.4/RES/1997/78 United Nations Commission on Human Rights (1998a) Resolution 1998/52 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/1998/52 United Nations Commission on Human Rights (1998b) Resolution 1998/76 on Rights of the Child, UN Doc. E/CN.4/RES/1998/76

References

135

United Nations Commission on Human Rights (1999) Resolution 1999/42 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/1999/42 United Nations Commission on Human Rights (2001) Resolution 2001/49 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/2001/49 United Nations Commission on Human Rights (2002) Resolution 2002/52 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/2002/52 United Nations Commission on Human Rights (2003) Resolution 2003/45 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/2003/45 United Nations Commission on Human Rights (2004) Resolution 2004/46 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/2004/46 United Nations Commission on Human Rights (2005) Resolution 2005/41 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/2005/41 United Nations Committee on Economic, Social and Cultural Rights (2000) General Comment no. 14 (2000): The Right to the Highest Attainable Standard of Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), UN Doc. E/C.12/2000/4 United Nations Committee on Economic, Social and Cultural Rights (2016) General Comment no. 22 (2016) on the Right to Sexual and Reproductive Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), UN Doc. E/C.12/GC/22 United Nations Committee on the Elimination of Discrimination Against Women (1993) General Recommendation no. 19: Violence Against Women, General Assembly Official Records, FortySeventh Session, Supplement no. 38 (A/47/38) United Nations Committee on the Elimination of Discrimination Against Women (1994) General Recommendation no. 21: Equality in Marriage and Family Relations, General Assembly Official Records, Forty-Ninth Session, Supplement no. 38 (A/49/38) United Nations Committee on the Elimination of Discrimination Against Women (1999) General Recommendation no. 24: Article 12 of the Convention (Women and Health), General Assembly Official Records, Fifty-Fourth Session, Supplement no. 38 (A/54/38/Rev.1) United Nations Committee on the Elimination of Discrimination Against Women (2013) General Recommendation no. 30 on Women in Conflict Prevention, Conflict and Post-Conflict Situations, UN Doc. CEDAW/C/GC/30 United Nations Committee on the Elimination of Discrimination Against Women (2017) General Recommendation no. 35 on Gender-Based Violence Against Women, Updating General Recommendation no. 19, UN Doc. CEDAW/C/GC/35 United Nations Committee on the Rights of Persons With Disabilities and United Nations Committee on the Elimination of Discrimination Against Women (2018) Guaranteeing Sexual and Reproductive Health and Rights for all Women, in Particular Women With Disabilities: Joint Statement by the Committee on the Rights of Persons With Disabilities and the Committee on the Elimination of All Forms of Discrimination Against Women. https://www.ohchr.org/EN/HRBodies/CRPD/ Pages/CRPDStatements.aspx. Accessed 24 October 2020 United Nations Economic and Social Council (1947) Draft Convention on the Crime of Genocide, UN Doc. E/447 United Nations General Assembly (2015) Transforming our World: The 2030 Agenda for Sustainable Development, UN Doc. A/RES/70/1 United Nations General Assembly (2019) Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences on a Human Rights-Based Approach to Mistreatment and Violence Against Women in Reproductive Health Services With a Focus on Childbirth and Obstetric Violence, UN Doc. A/74/137 United Nations Human Rights Committee (2000) General Comment no. 28: Article 3 (The Equality of Rights Between Men and Women), UN Doc. CCPR/C/21/Rev.1/Add.10 United Nations Human Rights Committee (2018) General Comment no. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, UN Doc. CCPR/C/GC/36

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United Nations Human Rights Council (2016) “They Came to Destroy”: ISIS Crimes Against the Yazidis, UN Doc. A/HRC/32/CRP.2 United Nations Human Rights Council (2018) “I Lost my Dignity”: Sexual and Gender-Based Violence in the Syrian Arab Republic: Conference Room Paper of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/37/CRP.3 United Nations Population Fund, Danish Institute for Human Rights and Office of the High Commissioner for Human Rights (2014) Reproductive Rights Are Human Rights: A Handbook for National Human Rights Institutions, New York/Copenhagen/Geneva. https://www.unfpa.org/ sites/default/files/pub-pdf/NHRIHandbook.pdf. Accessed 24 October 2020 United Nations Security Council (2017) Statement by the President of the Security Council, UN Doc. S/PRST/2017/13 United Nations Security Council (2018) Report of the Secretary-General on Conflict-Related Sexual Violence, UN Doc. S/2018/250 United Nations Security Council (2019a) Conflict-Related Sexual Violence: Report of the SecretaryGeneral, UN Doc. S/2019/280 United Nations Security Council (2019b) Resolution 2467 (2019), UN Doc. S/RES/2467 United Nations War Crimes Commission (1947–1949) Law Reports of Trials of War Criminals. His Majesty’s Stationery Office, London Urdal H, Che CP (2013) War and Gender Inequalities in Health: The Impact of Armed Conflict on Fertility and Maternal Mortality. International Interactions 39:489–510 Verrall S (2016) The Picture of Sexual Violence in the Former Yugoslavia as Reflected in ICTY Judgments. In: Brammertz S, Jarvis MJ (eds) Prosecuting Conflict-Related Sexual Violence at the ICTY. Oxford University Press, Oxford, pp 299–334 Vikman E (2005) Ancient Origins: Sexual Violence in Warfare, Part I. Anthropology & Medicine 12:21–31 Wapler F (2018) Reproduktive Autonomie: Rechtliche und Rechtsethische Überlegungen. In: Baer S, Sacksofsky U (eds) Autonomie im Recht – Geschlechtertheoretisch Vermessen. Nomos, BadenBaden, pp 185–213 Weiss P (2014) Die Ermittlung: Oratorium in 11 Gesängen, 16th edn. Suhrkamp, Frankfurt am Main Werle G (1989) Justiz-Strafrecht und polizeiliche Verbrechensbekämpfung im Dritten Reich. De Gruyter, Berlin Werle G, Vormbaum M (2018) Transitional Justice: Vergangenheitsbewältigung durch Recht. Springer, Berlin Wersig M (2012) Reproduktion zwischen “Lebensschutz”, Selbstbestimmung und Technologie. In: Foljanty L, Lembke U (eds) Feministische Rechtswissenschaft: Ein Studienbuch, 2nd edn. Nomos, Baden-Baden, pp 197–212 World Health Organization, United Nations Children’s Fund, United Nations Population Fund, World Bank Group and United Nations Population Division (2015) Trends in Maternal Mortality: 1990 to 2015. https://www.unfpa.org/sites/default/files/pub-pdf/9789241565141_eng. pdf. Accessed 24 October 2020 Zampas C, Gher JM (2008) Abortion as a Human Right: International and Regional Standards. Human Rights Law Review 8:249–294 Zenz A (2020) Sterilizations, IUDs, and Mandatory Birth Control: The CCP’s Campaign to Suppress Uyghur Birthrates in Xinjiang. https://jamestown.org/wp-content/uploads/2020/06/ Zenz-Internment-Sterilizations-and-IUDs-UPDATED-July-21-Rev2.pdf?x59415. Accessed 24 October 2020 Zulficar M (1994–1995) From Human Rights to Program Reality: Vienna, Cairo, and Beijing in Perspective. American University Law Review 44:1017–1036

Chapter 4

Reproductive Violence and Genocide

Contents 4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Pregnancy-Related Crimes as Genocide: Historical and Conceptual Background . . . . . 4.2.1 The Impetus: Reports from the Former Yugoslavia . . . . . . . . . . . . . . . . . . . . . . . . 4.2.2 Rape as an Act of Genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.3 The Genocidal Nature of Pregnancy-Related Crimes: A “Logical Glitch”? . . . . . 4.2.4 Genocide and Children Born of Rape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.5 Summary and Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 The Prosecution of Pregnancy-Related Crimes as Genocide . . . . . . . . . . . . . . . . . . . . . . . 4.3.1 Preliminary Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.2 Causing Serious Bodily or Mental Harm to Members of the Group . . . . . . . . . . . 4.3.3 Deliberately Inflicting on the Group Conditions of Life Calculated to Bring About Its Physical Destruction in Whole or in Part . . . . . . . . . . . . . . . . . . . . . . . . 4.3.4 Imposing Measures Intended to Prevent Births Within the Group . . . . . . . . . . . . 4.3.5 Forcibly Transferring Children of the Group to Another Group . . . . . . . . . . . . . . 4.3.6 The Intent to Destroy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.7 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Other Forms of Reproductive Violence as Genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.1 Forced Sterilization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.2 Forced Abortion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.3 Forced Contraception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

138 138 139 148 150 152 155 156 157 161 162 164 170 173 176 176 177 180 181 182 183 183

Abstract This chapter discusses the potentials to prosecute different manifestations of reproductive violence as the crime of genocide under Article II of the Genocide Convention. In the light of the historical background, most notably the “genocidal rape” debate of the 1990s, it explores the somewhat paradoxical conceptualization of pregnancy-related crimes, namely the forcible impregnation or continuation of a pregnancy, as genocide. The implications of this debate for the children born as a result are also addressed, most importantly the danger of marginalization. In this context, it is argued that an assessment of the perpetrator’s criminal responsibility should be conducted with a view to the violation of the individual’s reproductive autonomy, meaning an interference with the right to reproduce in a self-determined manner, and not on the basis of exclusionary conceptualizations of ethnicity. The chapter further examines the elements of the reproductive crime of © t.m.c. asser press and the author 2021 T. Altunjan, Reproductive Violence and International Criminal Law, International Criminal Justice Series 29, https://doi.org/10.1007/978-94-6265-451-8_4

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“imposing measures intended to prevent births” under Article II(d) of the Genocide Convention and argues that acts of reproductive violence such as forced impregnation, forced pregnancy, forced sterilization, forced abortion, and forced contraception may be prosecuted as genocide. Keywords Genocide · Yugoslavia · Children born of rape · Genocidal rape · Genocide Convention · Forced pregnancy · Forced impregnation · Forced sterilization · Forced abortion · Forced contraception

4.1 Introduction In interfering with a group’s ability to procreate, reproductive violence may serve as an effective tool of destruction. As outlined in the previous chapter, reproductive violence has been documented in conflicts around the world. In many of these incidences, it was connected to discriminatory policies and a marginalization of individuals based on their presumed belonging to a certain group. The connection between reproductive violence and the crime of genocide becomes most obvious in Article II(d) of the Genocide Convention,1 which criminalizes the genocidal act of “imposing measures intended to prevent births within the group”. This is a clear example of a reproductive offense and the earliest explicit reproductive crime in international criminal law. This chapter discusses the prosecution of various manifestations of reproductive violence as acts of genocide. Sections 4.2 and 4.3 focus on pregnancy-related crimes in the form of forced impregnation and forced pregnancy. Section 4.4 deals with other forms of reproductive violence, namely forced sterilization, forced abortion, and forced contraception.

4.2 Pregnancy-Related Crimes as Genocide: Historical and Conceptual Background At first glance, the prosecution of forced impregnation and forced pregnancy as genocide may appear contradictory, because these acts may in fact lead to the creation of new life instead of its destruction. This section explores the historical background which shaped the legal and sociological debates in this regard and develops a conceptualization of pregnancy-related genocidal crimes which centers on the value of reproductive autonomy.

1 Convention

on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 278 (entered into force 12 January 1951) (Genocide Convention).

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4.2.1 The Impetus: Reports from the Former Yugoslavia As explained above,2 the events that took place during the conflicts in Yugoslavia in the 1990s had a lasting impact on the development of international criminal law pertaining to the prosecution and punishment of sexualized and gender-based violence. When the large-scale commission of this type of violence was brought to light, the ensuing international concern influenced the establishment of the International Criminal Tribunal for the Former Yugoslavia.3 In particular, the conflict drew attention to the commission of pregnancy-related crimes in the context of “ethnic cleansing”. Reports indicated that there was a deliberate strategy of impregnating women and detaining them until they were unable to terminate the pregnancy, forcing them to give birth to children presumed to be of the perpetrators’ ethnicity.4 This will be explored in more detail in the following subsections.

4.2.1.1

United Nations Reports

During the Yugoslav wars, two expert reports conducted by United Nations institutions documented the commission of sexualized and gender-based violence, including pregnancy-related acts. In 1993, Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights released a report on the situation of human rights in the territory of the former Yugoslavia, which had by then split into Croatia, Slovenia, Macedonia, Bosnia and Herzegovina, and the Federal Republic of Yugoslavia (Serbia and Montenegro). The Special Rapporteur had conducted three missions on the territory of the former Yugoslavia.5 Additionally, a mission had been undertaken specifically in order to investigate allegations of rape in January 1993. Four medical and psychiatric experts as well as the Director of the UN Division for the Advancement of Women had collected and analysed victim and witness testimony as well as statistical data and medical records in Croatia, Bosnia, and the Federal Republic of Yugoslavia.6 The team had visited and requested statistical data from six hospitals in Zagreb, Sarajevo, Zenica, and Belgrade. Through interviews with physicians and a review of medical records from the hospitals, they were able to confirm 119 cases of pregnancy resulting from rape during 1992.7 Since the occurrence of rape is likely under-reported, the experts stated that this should be viewed as the minimum number.8 In the majority of these cases, abortions had been performed.9 The report also found that the number 2 See

Chap. 2, Sect. 2.4.4.1. generally Harbour 2016. 4 See Chap. 3, Sect. 3.2.1.5. 5 Special Rapporteur of the Commission on Human Rights 1993, para 3. 6 Ibid., para 7, Annex II paras 1–3. 7 Ibid., Annex II, para 9. 8 Ibid., Annex II, para 29. 9 Ibid., Annex II, paras 10–14. 3 See

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of abortions and miscarriages in the Sarajevo hospital had significantly increased in 1992.10 Taking into consideration the likelihood of under-reporting and estimates of how often rapes result in pregnancies, the experts deduced from their findings that rape occurred on a widespread basis in the former Yugoslavia.11 The report documented cases of pregnancies resulting from rape of both Croatian and Muslim women12 as well as Serb women.13 With regard to forced pregnancies, it documented the following account: Another ethnic Croat woman was detained in a ‘special house’ where she was raped by several men every night for approximately two months. Every night she could hear screams and cries of other women. She reported that, while raping her, the men were shouting: ‘you will have a Serbian child’. She also reported being told that, if she were pregnant, she would be ‘forced to stay there until six months of pregnancy’.14

A second report was issued by the Commission of Experts chaired by Cherif Bassiouni, which the United Nations Security Council had established in 1992. The Commission’s mandate was to review evidence and provide conclusions as to grave breaches of international humanitarian law committed on the territory of the former Yugoslavia. Between November 1992 and April 1994, the Commission conducted several sessions and investigations, presenting its findings in a final report.15 Overall, the Commission found that grave breaches of the Geneva Conventions and other violations of international humanitarian law had been committed on a large scale. Particularly, it referred to “ethnic cleansing”16 as well as rape and sexual assault, which had been carried out systematically.17 With regard to rape and sexual assault, the Commission identified five patterns. These consisted of sexual assault in conjunction with looting and intimidation of an ethnic group (first pattern) or with fighting in an area (second pattern), sexual assault of people in detention (third pattern), and sexual assault with the purpose of entertaining soldiers (fifth pattern). Most notably in the present context, the Commission identified a pattern of sexual assault for the purpose of terrorization and humiliation as part of an “ethnic cleansing” policy (fourth pattern).18 The fourth pattern included forced impregnation and forced pregnancy. In this regard, the Bassiouni report gave the following account: The fourth pattern of rape involves individuals or groups committing sexual assaults against women for the purpose of terrorizing and humiliating them often as part of the policy of ‘ethnic cleansing’. Survivors of some camps report that they believe they were detained for the purpose of rape. In those camps, all of the women are raped quite frequently, often in front of other internees, and usually accompanied by beatings and torture. Some captors also 10 Ibid.,

Annex II, paras 16, 27. Annex II, para 31. 12 Ibid., Annex II, para 43. 13 Ibid., Annex II, para 45. 14 Ibid., Annex II, para 41. 15 Commission of Experts 1994. 16 Ibid., paras 129–150. 17 Ibid., paras 232–253. 18 Ibid., paras 244–249. 11 Ibid.,

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state that they are trying to impregnate the women. Pregnant women are detained until it is too late for them to obtain an abortion. One woman was detained by her neighbour (who was a soldier) near her village for six months. She was raped almost daily by three or four soldiers. She was told that she would give birth to a chetnik boy who would kill Muslims when he grew up. They repeatedly said their President had ordered them to do this. […]19

Identifying common threads between the various patterns of rape, the Commission found: Many reports state that perpetrators […] tell female victims that they will bear children of the perpetrator’s ethnicity, that they must become pregnant, and then hold them in custody until it is too late for the victims to get an abortion.20

The two reports, issued more than one year apart during the ongoing conflict, thus came to the same conclusions. They found that camps were established in which women were systematically raped; many of them got pregnant as a result. Both reports also include evidence as to the perpetrators’ express intent to impregnate women and to detain them until it would be too late to terminate the pregnancy. Consequently, these women would give birth to children who were presumed to be of the perpetrators’ ethnicity. This illustrates that the pregnancies were not merely by-products of the commission of rape.

4.2.1.2

Other Expert Reports

Many institutions and non-governmental organizations published reports on the commission of sexualized and gender-based violence in the former Yugoslavia.21 Some of the reports referred specifically to the practice of forced impregnation and subsequent detainment. For example, the European Council established an investigative mission (“Warburton Mission”) focusing on the treatment of Muslim women in the former Yugoslavia. With respect to forced impregnation, the investigators stated the following: The enormity of the suffering being inflicted on the civilian population in this conflict defies expression. Indications are that at least some of the rapes have been committed in particularly sadistic ways, so as to inflict maximum humiliation on the victims, on their family, and on the whole community. In many cases there seems little doubt that the intention is deliberately to make women pregnant and then to detain them until pregnancy is far enough advanced to make termination impossible, as an additional form of humiliation and constant reminder of the abuse done to them.22

The non-governmental organization Helsinki Watch, which would later merge with other organizations into Human Rights Watch, documented war crimes in Bosnia 19 Ibid.,

para 248. para 250. 21 See generally Harbour 2016. 22 EC Investigative Mission Into the Treatment of Treatment of Muslim Women in the Former Yugoslavia 1993, para 15. 20 Ibid.,

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and Herzegovina since the beginning of the war. It issued two reports on “War Crimes in Bosnia-Hercegovina” in 1992 and 1993. Pertaining to rape and forced pregnancy, Helsinki Watch stated in its second report: Women interviewed […] described how they were gang raped, taunted with ethnic slurs and cursed by rapists who stated their intention forcibly to impregnate women as a haunting reminder of the rape and an intensification of the trauma it inflicts.23

In this regard, the Helsinki Watch report included testimony of a woman detained in a school in Doboj, who was forced to undergo gynaecological exams. She stated: Only the younger women would see the doctor. I think they were checking to see if we were pregnant because he would say, ‘You’re not pregnant.’ The Serbs said to us, ‘Why aren’t you pregnant? See how nicely we treat women who are pregnant?’ Once they brought girls not older than seventeen into the hall. They were clean and dressed nicely. They said, ‘See how well we treat them? They are pregnant.’ The [pregnant girls] were from outside, and I didn’t know them. I don’t know if they were pregnant, but they were wearing maternity dresses. I think they were lying, but I didn’t pay too much attention. I think they wanted to know who was pregnant in case anyone was hiding it. They wanted women to have children to stigmatize us forever. The child is a reminder of what happened.24

The report also referred to the difficulties in ascertaining the number of pregnancies, births, and abortions, largely due to under-reporting by victims and inadequate reporting mechanisms.25

4.2.1.3

Journalistic Coverage

The events in Yugoslavia also attracted general media attention. Various articles focused specifically on sexualized and gender-based violence and the practice of forced impregnation and subsequent detention. In the Canadian newspaper The Nation, Croatian author and journalist Slavenka Drakuli´c published an article on “Mass Rape in Bosnia” in March 1993. She stated: The eyewitness accounts and reports state that women are raped everywhere and at all times, and victims are of all ages, from 6 to 80. They are also deliberately impregnated in great numbers (the Bosnian government estimates that some 35,000 of them have been impregnated, unbelievable as it may sound), held captive and released only after abortion becomes impossible. This is so they will ‘give birth to little Chetniks,’ the women are told.26

23 Helsinki

Watch 1993, p 21. pp 218–219. 25 Ibid., pp 21–23. 26 Drakuli´ c, Women Hide Behind a Wall of Silence, The Nation, 1 March 1993, p 271. 24 Ibid.,

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Providing even more detailed witness statements, Robert Fisk published an article in the British newspaper Independent in February 1993. One witness named Emira stated the following: The Chetniks shouted at us: ‘Look at how many children you can have. Now you are going to have our children. You are going to have our little Chetniks.’ They said they weren’t interested in women who were expecting babies because they couldn’t make them pregnant.27

Further evidence gathered by Fisk shows that Serb perpetrators took women claiming to be pregnant to a hospital in order to conduct pregnancy tests; they would then be spared from further violations in case the test was positive.28 As early as 1993, journalist Alexandra Stiglmayer published an edited volume on mass rape in the Yugoslav conflict.29 Besides recounting the historical background and documenting sexualized abuses committed on the territory of the former Yugoslavia, the book also offered early analyses on the psychosocial and societal implications of the atrocities as well as potential judicial consequences. Stiglmayer spoke to victims of rape and other forms of sexual abuse. Some of these women gave evidence specifically on the issue of forced impregnation and detainment during pregnancy. A woman reported that she heard Serb soldiers in the Foˇca region of Bosnia and Herzegovina singing songs about “how Muslim women would give birth to Serbian children”.30 Several women detained in various “rape camps” reported that the perpetrators intended to impregnate them. A woman who had been detained in Doboj stated: “And while they were [raping me] they said I was going to have a baby by them and that it’d be an honor for a Muslim woman to give birth to a Serbian kid.”31 Another woman interned in this camp gave the following account: They just came in and humiliated us, raped us, and later they told you, ‘Come on now, if you could have Ustasha babies, then you can have a Chetnik baby, too.’ […] Women who got pregnant, they had to stay there for seven or eight months so they could give birth to a Serbian kid. They had their gynecologists there to examine the women. The pregnant ones were separated off from us and had special privileges; they got meals, they were better off, they were protected. Only when a woman’s in her seventh month, when she can’t do anything about it anymore, then she’s released. Then they usually take these women to Serbia. […] They beat the women who didn’t get pregnant, especially the younger women; they were supposed to confess what contraceptives they were using.32

A woman detained in a hotel in Višegrad reported: They [the Chetniks] said they were bringing the women there to bear Chetnik kids. This was the only hotel they were taking them to, they said, nowhere else. That was the story the guy 27 Fisk, Bosnia War Crimes: “The Rapes Went on Day and Night”, Independent, 8 February 1993, https://www.independent.co.uk/news/world/europe/bosnia-war-crimes-the-rapes-went-on-dayand-night-robert-fisk-in-mostar-gathers-detailed-evidence-of-1471656.html (accessed 24 October 2020). 28 Ibid. 29 Stiglmayer 1993, also published one year later in English, Stiglmayer 1994a. 30 Stiglmayer 1994b, p 104. 31 Stiglmayer 1994b, p 118. 32 Stiglmayer 1994b, p 119.

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from Foca told me. He said, ‘Look, the only people in this hotel are girls and women who’ll carry our babies, babies for the Chetniks.’33

Finally, a woman from the village of Sokolac near Sarajevo reported that she had been detained in a school building between May and September 1992, where she had been frequently raped and told she was going to bear a Serbian child.34 She said: “They told us how much they’d like to see us raise their kids, they sang rhymes with words like, ‘A mother raises a baby, he’s half a Muslim, half a Serb.’”35 When she got pregnant, the perpetrators reportedly reacted positively, but never provided a medical examination.36 Eventually, the woman was released, stating later that “[t]hey let us go because we were pregnant. They thought it was too late for us to do anything about it.”37 The accounts collected by Stiglmayer thus paint a clear picture of the treatment of women in various “rape camps”. The women were frequently raped, and the perpetrators would often state that they meant to impregnate them so that they would bear “Chetnik”, or Serb, children. Some accounts also referred to the mistreatment of women who did not get pregnant as well as special treatment of pregnant women and release during the late stages of pregnancy. A further influential book was released by author Beverly Allen in 1996 on “Rape Warfare”. Documenting the commission of sexualized violence in the former Yugoslavia, Allen analysed several ways in which rapes are committed as part of a genocidal strategy. Besides rape used as an instrument of “ethnic cleansing” and as a form of torture, Allen identified systematic rape in what she called “rape/death camps” leading to forced pregnancy as “genocidal rape”.38 In this regard, she stated the following: Serb, Bosnian Serb, and Croatian Serb soldiers and the militias and irregular forces known as Chetniks arrest Bosnian-Herzegovinian and Croatian women, imprison them in a rape/death camp, and rape them systematically for extended periods of time. Such rapes are either part of torture preceding death or part of torture leading to forced pregnancy. Victims who do not become pregnant are often murdered. Victims who do become pregnant are raped consistently and subjected to severe psychological abuse and other forms of torture until such time as their pregnancies have progressed beyond the stage when a safe abortion would be possible, at which point they are released.39

Determining the number of children born as a result is impossible due to a lack of statistical data; however, according to estimates based on the reported number of rapes as well as common pregnancy and birth rates, there could have been up to 1800 forced pregnancies and 500 births during the war in Bosnia and Herzegovina.40 33 Stiglmayer

1994b, p 130. 1994b, pp 131–133. 35 Stiglmayer 1994b, p 132. 36 Ibid. 37 Stiglmayer 1994b, p 133. 38 Allen 1996, pp 62–63. 39 Ibid., p 63. 40 See Carpenter 2010, pp 22–23. 34 Stiglmayer

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These various reports allow the conclusion that there existed some form of strategy to impregnate women and ensure the birth of a child through detainment. The motivation behind these acts was to create children presumed to be of Serb origin, and/or to humiliate and stigmatize the women even beyond the sexual assaults. Some witnesses stated that pregnant women were detained, sometimes with special privileges, and that they were released at a late stage of the pregnancy, when terminations were deemed no longer possible.

4.2.1.4

Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia

The incidents described in the previous subsections have come to the attention of the International Criminal Tribunal for the Former Yugoslavia in three of its cases, though they were never specifically charged.41 Most explicitly, in reviewing the indictment against Karadži´c and Mladi´c, the Trial Chamber stated that orders had been given to soldiers to commit rape with the aim of impregnating the victim.42 Furthermore, in both the Kunarac and the Brdanin judgments, the respective trial chambers of the ICTY referred to evidence that perpetrators told victims of rape that they wanted them to get pregnant and give birth to a Serb child.43

4.2.1.5

The International Court of Justice Judgment of 2007

The International Court of Justice dealt with evidence of forced pregnancy in its 2007 judgment on the application of the Genocide Convention brought by Bosnia and Herzegovina against Serbia and Montenegro.44 In the application, Bosnia and Herzegovina claimed that rape was committed in the form of “procreative rape”, meaning “as a way of affecting the demographic balance by impregnating Muslim women with the sperm of Serb males”.45 This, according to the Applicant, constituted genocide in the form of forcibly transferring children of the protected group to another group, namely the group of Bosnian Serbs, pursuant to Article II(e) of the Genocide

41 See

Chap. 3, Sect. 3.3.4.2. Prosecutor v Radovan Karadži´c and Ratko Mladi´c, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, IT-95-5-R61 and IT-95-18-R61 (Karadži´c and Mladi´c Review of Indictments 1996), para 64. 43 ICTY, Prosecutor v Dragoljub Kunarac, Radomir Kovaˇ c and Zoran Vukovi´c, Judgment, 22 February 2001, IT-96-23-T and IT-96-23/1-T, para 342, see also paras 583, 654; ICTY, Prosecutor v Radoslav Brdanin, Judgment, 1 September 2004, IT-99-36-T (Brdanin 2004), para 1011. 44 The application was originally brought in 1993 against the Federal Republic of Yugoslavia. 45 International Court of Justice, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, 2007 I.C.J. Reports 43 (Bosnia and Herzegovina v Serbia and Montenegro 2007), para 362. 42 ICTY,

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Convention.46 As evidence for such a policy, the Applicant referred to the report issued by the Commission of Experts as well as several indictments and judgments by the ICTY.47 However, the Court found that the evidence did not establish that there was a policy of forced pregnancy, or that the aim was to transfer children from one group to another.48 Notably, the evidence brought in this specific case was limited. It did not include any direct witness testimony and only referred to one report as well as some indictments and judgments, which had not laid a focus on forced pregnancy. The fact that the International Court of Justice was not convinced based on this evidence that there had been a deliberate policy of forced pregnancy thus does not mean that these acts did not occur.49

4.2.1.6

Impact on International Law

The above subsections demonstrate that the reports of rape and forced impregnation followed by detainment gathered considerable international attention, as the events were deemed wholly unprecedented. Kelly Askin put it as follows: The widespread prevalence of rape during war is, regrettably, nothing new. That it is committed opportunistically, sadistically, brutally, and viciously is not new. That rape is used as a weapon of war to terrify, humiliate, degrade, destroy, and subordinate is not even new. But what is new, and extraordinarily horrifying, is that many of the rapes committed in the territory of the former Yugoslavia are also committed with the intent to impregnate, in an effort to destroy a particular ethnicity. In essence, some women are sexually assaulted with the specific intent to commit ethnic genocide either by impregnating females with a different ethnic gene or by destroying the community group through such ethnic cleansing practices.50 [footnotes omitted]

Askin’s assertion that the rapes committed with an intent to impregnate were “new” is not entirely correct—as she herself acknowledged in a footnote.51 In fact, there had been reports of the same type of conduct occurring on the territory of Bangladesh in the 1970s during the war between the former East and West Pakistan, which led to Bangladesh’s independence in 1971.52 According to reports, at least 200,000 persons experienced sexualized violence and 25,000 Bangladeshi women became pregnant as a result.53 Some authors claimed that this was due to a deliberate policy to impregnate these women in order to “create a new race” and “to dilute Bengali 46 Ibid. 47 Ibid.,

paras 363–365. para 367. 49 See also Drake 2012, pp 603–604, pointing out that the International Court of Justice dealt with evidence of forced pregnancy exclusively in the—rather limited—context of Article II(e) of the Genocide Convention, above n 1. 50 Askin 1997, pp 273–274. 51 Ibid., p 274, footnote 902. See also Carpenter 2000a, p 223. 52 Brownmiller 1975, p 84; Greve 2008, pp 31–32. 53 See Chap. 3, Sect. 3.2.2. 48 Ibid.,

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nationalism”.54 Some sources further suggested that president Yahya Khan gave an order to high-ranking generals to impregnate women in East Pakistan with the goal of building a “pure Pakistan”,55 by way of turning Bengalis into “true Muslims”.56 From these accounts, Bina D’Costa and Sara Hossain inferred that “[w]omen were targeted because of their reproductive capabilities, and to forcibly impregnate them with different genes, to change the ethnic make-up of their children”.57 They also claimed that some soldiers expressly intended to bring about pregnancies, and that women who had been forcibly impregnated were then detained in order to ensure they would carry the pregnancy to term.58 However, the validity of these assertions cannot be ascertained. Most accounts, particularly the number of 25,000 pregnancies, trace back to Brownmiller’s original observations published in 1975. Due to a lack of independent reports by organizations such as the United Nations, no official records or statistics exist. In any case, while there were reports on sexualized violence in the war between East and West Pakistan, these did not gather much international attention. Due to an overall standstill of the development of international criminal law during the period of the Cold War, no calls for international prosecution and punishment seem to have followed. The situation was entirely different in the 1990s. It was not the occurrence of pregnancy-related violence as such that was unprecedented, but the attention devoted to it by the international community.59 At a time of renaissance60 of international criminal law, epitomized by the establishment of the ad hoc tribunals and the negotiations for a permanent international criminal court, the reports of rapes and forced impregnations were fresh on the minds of stakeholders, which guaranteed a lasting impact on international criminal law. For example, reports on forced pregnancy in Bosnian “rape camps” were considered during the negotiations for the Rome Statute of the International Criminal Court.61 As noted above, reports on the commission of forced impregnation recently emerged from both Sudan and Burundi. In the case of Burundi, the United Nations repeatedly condemned the calls to impregnate women.62 In the Darfur case,

54 Brownmiller

1975, p 85, quoting Indian novelist Mulk Raj Anand. Birth of Bangladesh: When Raped Women and War Babies Paid the Price of a New Nation, Indian Express, 19 December 2016, https://indianexpress.com/article/research/birthof-bangladesh-when-raped-women-and-war-babies-paid-the-price-of-a-new-nation-victory-day4430420/ (accessed 24 October 2020). 56 D’Costa and Hossain 2010, p 343, quoting scholar and activist Salma Sobhan. See also Seto 2013, pp 29–30. 57 D’Costa and Hossain 2010, p 343. 58 Ibid., p 343. 59 See also Carpenter 2000a, p 223 (“the genocide that brought ‘forced impregnation’ to the world’s attention”). 60 Werle and Jeßberger 2020, marginal no 45. 61 See generally Chap. 5, Sect. 5.3. 62 See Chap. 3, Sect. 3.2.1.8. 55 Roychowdhury,

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some reports indicated that the motive for the commission of rape was to create “light-skinned babies”.63 These reports have received little international attention.

4.2.2 Rape as an Act of Genocide At a time when international law did not specifically list rape and other forms of sexualized and gender-based violence as specific war crimes and crimes against humanity, the debate on whether rape may amount to a crime under international law largely focused on genocide. This is because the two most visible conflicts that shaped the legal discourse in the 1990s, Yugoslavia and Rwanda, were (at least partly) considered as genocidal.

4.2.2.1

The “Genocidal Rape” Debate

In the feminist legal discourse, there was little doubt that rape can be employed as an instrument of genocide. The debate instead focused on whether the conceptualization of “genocidal rape” as a particularly horrific, “unparalleled”64 form of rape was correct.65 Feminist legal scholar Catharine MacKinnon was at the forefront of conceptualizing the atrocities committed against Bosnian and Croatian women as “genocidal rape”. In 1994, she asserted, in a controversial analogy to the Holocaust, that “[t]hese rapes are to everyday rape what the Holocaust was to everyday anti-Semitism.”66 In her view, differentiating “genocidal rape” from “everyday rape” was necessary in order to understand the mass rapes committed by Serb forces as a deliberate strategy of genocide, as an attack on a culture and on women at once, not on either one or the other.67 When committed in such a way, MacKinnon intimated that there is a particular necessity for an international response and for holding perpetrators accountable. In her own words, this was not “business as usual”, not even when it comes to war: If men do this all the time, especially in war, how can one pick a side in this one? And since all men do this all the time, war or no war, why do anything special about this now? This war becomes just a form of business as usual. But genocide is not business as usual – not even for men.68 63 Wax, “We Want to Make a Light Baby”: Arab Militiamen in Sudan Said to Use Rape as a Weapon of Ethnic Cleansing, Washington Post, 30 June 2004, https://www.washingtonpost.com/wp-dyn/art icles/A16001-2004Jun29.html (accessed 24 October 2020). See also Chap. 3, Sect. 3.2.2. 64 Copelon 1994, p 246. 65 See generally Engle 2005, pp 785–788; MacKinnon 1994b; Russell-Brown 2003, pp 362–365; Zawati 2014, pp 96–103. 66 MacKinnon 1994a, p 8. 67 Ibid., pp 9–10. 68 Ibid., p 11.

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In contrast, Rhonda Copelon called attention to the danger of focusing on rape as genocide and emphasizing the particular horror of the rapes in Bosnia, asserting that this approach frames “genocidal rape” as an exceptional case and thus “risks rendering rape [that is not genocidal] invisible once again”.69 She underlined that rape can be characterized as a “weapon of war” irrespective of the intent to dilute ethnic identity70 and refused to accept a hierarchy between what MacKinnon labelled “everyday rape” and genocidal rape.71 Copelon understood rape and genocide as separate concepts72 and proposed to “surface gender in the midst of genocide”.73 In the same vein, Susan Brownmiller observed that “Balkan women, whatever their ethnic and religious background, and in whatever fighting zone they happen to find themselves, have been thrust against their will into another identity. They are victims of rape in war.”74 MacKinnon considered this view as a way of “whitewashing”75 and “covering up”76 the atrocities. But to call attention to a possible overemphasis on genocidal rape does not mean to deny that women of a certain ethnicity were targeted. In fact, both MacKinnon and Copelon underlined the intersectional77 nature of the violence committed in Bosnia:78 Persons of a certain gender and a certain ethnicity were targeted. While acknowledging the ethnic component, Copelon’s line of reasoning highlighted the victimized woman’s individuality and agency. The commission of an individual act as part of an attack against an ethnic group must not obscure the fact that a violation of an individual’s sexual or reproductive autonomy (or both) occurred. There is a resemblance between this conceptualization of “genocidal rape” as an unparalleled atrocity requiring urgent international intervention and the focus on ethnicity-related reproductive crimes, as opposed to those committed without a nexus to ethnicity.79 While the ethnic dimensions of conflict-related sexualized and reproductive crimes certainly deserve attention, crimes that do not have a nexus to ethnicity or other collective identity factors must also be addressed as serious international crimes when they are committed as part of a widespread or systematic attack against a civilian population or in the context of an armed conflict.

69 Copelon

1994, p 246. pp 246, 259–260. 71 Ibid., p 259. 72 Ibid., p 246. 73 Ibid., p 247. 74 Brownmiller 1994, p 180. 75 MacKinnon 1994a, p 9. 76 Ibid., p 11. 77 On the concept of intersectionality, see Crenshaw 1989. See also Chap. 2, Sect. 2.2.1.2. 78 Copelon 1994, p 261; MacKinnon 1994a, p 10. 79 See Chap. 3, Sect. 3.3.5. 70 Ibid.,

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International Jurisprudence

Rape as a potential act of genocide also came to the attention of the ad hoc tribunals for Rwanda and the former Yugoslavia. In the judgment against Jean-Paul Akayesu, the International Criminal Tribunal for Rwanda decided for the first time that rape as well as other forms of gender-based violence could constitute instruments of genocide, specifically as a measure to prevent births (Article II(d) of the Genocide Convention). According to the Chamber, this may be the case either when a woman in a patrilineal society is “deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother’s group”,80 or when the victim “refuses subsequently to procreate”.81 Further, the Chamber stated that rape and sexual violence, as any other act of violence, could constitute a crime of genocide by way of causing serious bodily or mental harm (Article II(b) of the Genocide Convention).82 Other international courts83 as well as legal scholarship84 accepted this approach. Rape and other forms of sexualized violence may also constitute “conditions of life calculated to bring about its physical destruction in whole or in part” (Article II(c) of the Genocide Convention) in certain circumstances.85 In summary, customary international law today clearly recognizes that rape and other forms of sexualized violence can be acts of genocide.

4.2.3 The Genocidal Nature of Pregnancy-Related Crimes: A “Logical Glitch”86 ? Although the existence of an intent to impregnate is not a necessary component of genocidal rape,87 in the context of the Yugoslav wars many authors specifically 80 ICTR,

Prosecutor v Jean-Paul Akayesu, Judgment, 2 September 1998, ICTR-96-4-T (Akayesu 1998), para 507; Karadži´c and Mladi´c Review of Indictments 1996, above n 42, para 94. 81 Akayesu 1998, above n 80, para 508. See also International Court of Justice, Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Judgment, 3 February 2015, 2015 I.C.J. Reports 3 (Croatia v Serbia 2015), para 166. 82 Akayesu 1998, above n 80, para 731. 83 See e.g. ICTY, Prosecutor v Milomir Staki´ c, Judgment, 31 July 2003, IT-97-24-T (Staki´c 2003), para 516; Bosnia and Herzegovina v Serbia and Montenegro 2007, above n 45, para 300; Croatia v Serbia 2015, above n 81, para 158. See also ICC Elements of Crimes, Article 6(b), no. 1, footnote 3: “This conduct may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment.” 84 See Bassiouni and Manikas 1996, p 587; De Brouwer 2005, pp 51–56; Schabas 2009, pp 185–188; Schwarz 2019, pp 144–151; Werle and Jeßberger 2020, marginal no 895. 85 See Chap. 2, Sect. 2.4.3.2. 86 Allen 1996, pp 92, 96. 87 See Askin 1997, p 276. See also Allen 1996, pp 62–63, identifying three main forms of genocidal rape against Bosnian and Croatian women, namely: public rape in order to drive communities to

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referred to forced impregnation as evidence for the commission of genocide. The supporting arguments were twofold:88 Some pointed out that forced impregnation exacerbated the harm of rape, essentially arguing that rape may function as an act of genocide.89 Others, most notably Copelon, Fisher, and Goldstein, insisted that forced impregnation (or forced pregnancy) was a separate offense.90 They also claimed that while forced impregnation may be a form of genocide, it could also be prosecuted as a war crime and a crime against humanity.91 Before analysing whether forced impregnation and/or forced pregnancy can indeed constitute genocidal acts under the Genocide Convention,92 it must be noted that at first glance, the intent of impregnating a woman or forcing her to bear a child appears fundamentally at odds with the intent to destroy her group, which is the crucial element of the crime of genocide. As Siobhán Fisher put it, “it may seem counterintuitive that impregnation, the creation of new life, can in fact be an instrument of genocide.”93 On a similar note, Beverly Allen posed the crucial question: “[H]ow can rape, forced pregnancy, and resultant childbirths, the production of new persons, be genocide, the annihilation of a people?”94 In Fisher’s view, there were three general possibilities: (1) Forced impregnation may be a means to psychologically traumatize women so that they will be unable to bear children with members of their group; (2) women may be deemed “unmarriageable” as a result of forced impregnation and thus unable to bear children; and (3) during the time of the forced pregnancy, women are unable to conceive and bear children with members of their own group because their “wombs are ‘occupied’”.95 Allen apparently disagreed, at least in respect of the specific case of Yugoslavia. She asserted that “[t]he genocidal logic of rape for impregnation is not only that it threatens the targeted people’s reproductive potential.”96 Instead, she observed that the decisive element of the Serb policy lay specifically in its “logical glitch”, namely in the belief that the children born as a result of raping Bosnian or Croatian women will be Serbs.97 Allen even argued that “genocidal rape aimed at enforced pregnancy” should be considered a form of biological warfare, using sperm to attack leave their homes, random rapes in “concentration camps”, rape in “rape/death camps” either as torture preceding death or in the form of forced pregnancy. 88 See Carpenter 2000b, p 432. 89 Allen 1996, pp 62–86; Campanaro 2001, p 2571; Card 2008; MacKinnon 1994a, p 13. On the relation between sexual violence, reproduction and genocide, see generally Fein 1999. 90 See Copelon 1994, pp 256, 261; Fisher 1996, p 93; Goldstein 1993, pp 22–24; Green et al. 1994, p 237; Helsinki Watch 1993, pp 21–22. 91 See Copelon 1994, p 256; Fisher 1996, pp 95–105; Goldstein 1993, pp 16–28; Green et al. 1994, pp 236–237. See Chap. 5. 92 See this chapter, Sect. 4.3. 93 Fisher 1996, p 93. 94 Allen 1996, p 92. 95 Fisher 1996, p 93. See also Short 2003, p 511. Similarly Card 2008, pp 183–185. 96 Allen 1996, p 96. 97 Ibid. See also Card 2008, pp 183–185.

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the reproductive system.98 With a similar focus on the birth of children, MacKinnon stated: The babies made with Muslim and Croatian women are regarded as Serbian babies. The idea seems to be to create a fifth column within Muslim and Croatian society of children – all sons? – who will rise up and join their fathers. Much Serbian fascist ideology simply adopts and adapts Nazi views. This one is the ultimate achievement of the Nazi ideology that culture is genetic.99

The difference between the views put forward by Fisher and by Allen and MacKinnon is their focus on either the women who are the immediate victims of the act of forced impregnation on the one hand or on the children born as a result on the other hand. While Fisher focused primarily on the women who have been forcibly impregnated, Allen and MacKinnon emphasized the result of children being born who supposedly would not belong to the targeted group. This differentiation will be of relevance to the legal analysis of whether forced impregnation and forced pregnancy are genocidal acts under the five categories listed in Article II of the Genocide Convention. Beforehand, the following subsection briefly explores narratives and conceptualizations of “children born of rape” in the context of conflict-related sexualized and reproductive violence.

4.2.4 Genocide and Children Born of Rape The conceptualization that children born of forcible impregnation are not members of the mother’s group is very common in the literature on genocidal rape and forced impregnation. It is also the underlying idea of the ICTR Trial Chamber’s statement in the Akayesu judgment that rape may function as a measure to prevent births when the intent is to force the woman to “give birth to a child who will consequently not belong to its mother’s group.”100

4.2.4.1

Social Constructions of Children’s Group Membership

Evidently, the assumption that a child will not belong to his or her mother’s group is flawed when assessed from a purely genetic perspective. Each child inherits an equal share of genetic material from both parents.101 To this effect, Markovic pointed out that the purpose of affecting the ethnic composition of a group through forcible impregnation cannot actually succeed “because the child will still in part belong to 98 Allen

1996, pp 130–131. 1994a, p 13. 100 Akayesu 1998, above n 80, para 507. 101 See also Allen 1996, p 87 (“Enforced pregnancy as a method of genocide makes sense only if you are ignorant about genetics. No baby born from such a crime will be only Serb. It will receive half its genetic material from its mother.”); Seto 2013, p 123. 99 MacKinnon

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the mother’s group [and] receive in equal parts genetic material from mother and father.”102 However, genetics do not determine ethnicity. The concept of ethnicity is culturally and socially constructed, describing the state of belonging to a social group with a common national or cultural tradition.103 Accordingly, the concept of ethnic identity is also a social and cultural construct, which must be understood in its respective political, social, and historical context.104 The determination of whether genocidal acts have been committed thus depends on the particular cultural understanding and construction of group membership rather than on genetics. The Akayesu Trial Chamber accordingly limited its statement to “patriarchal societies, where membership of a group is determined by the identity of the father”.105 In this regard, Allen objected that children born of wartime rape are most likely to be raised by their mothers and as part of their group. She asserted that the children “will be assimilated to the cultural, ethnic, religious, national identity of the mother.”106 Accordingly, she suggested that the children would factually become part of the mother’s group if she raised them. However, this understanding is an oversimplification of the cultural construction of ethnic identity.107 Even if women affected by conflict-related rape are most likely to raise the children born as a result, this does not mean that the children (as well as their mothers) will automatically be accepted as a part of the group. Instead, the dynamics of group membership in cases of large-scale conflict-related sexualized and gender-based violence are highly dependent on the individual circumstances of the conflict, the cultural characteristics of the group, and even governmental policies and initiatives. After the war in Bangladesh, for example, the government made efforts to welcome survivors of sexualized violence back into societies, labelling them as “birangona” (“war heroines”), though these measures were reportedly futile and rape victims continued to face ostracization.108 After some confusion resulting from earlier statements, the Supreme Yazidi Spiritual Council in Iraq made it very clear that women raped by ISIS fighters were to be welcomed back into the Yazidi community—but not the children born as a result of the rapes.109 This is in accordance with the religious traditions of the Yazidi community, which do not allow marriages outside of the group and do not accept conversions; membership in the group is established exclusively by birth 102 Markovic

2007, p 453. Oxford Dictionary, Ethnicity, https://www.lexico.com/en/definition/ethnicity (accessed 24 October 2020). 104 See generally Weitsman 2007. 105 Akayesu 1998, above n 80, para 507. The more precise term to describe societies in which certain characteristics are passed down through the male line is patrilineality, see also Schwarz 2019, p 157; Short 2003, pp 513–514. 106 Allen 1996, p 97. 107 See also Salzmann 1998, pp 364–365. 108 See Sharlach 2000, p 95; Takai 2011, p 396. 109 See Kajjo, Yazidis Divided Over Children Born of IS Rape, VOA, 29 April 2019, https://www.voa news.com/a/yazidis-divided-over-children-born-of-islamic-state-rape/4896530.html (accessed 24 October 2020). See also Chap. 2, Sect. 2.2.2 and Chap. 3, Sect. 3.2.1.10. 103 Lexico

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from two Yazidi parents.110 As these examples illustrate, it is not possible to make a clear-cut assessment whether children born as a result of sexualized violence will become part of a particular group or not. With respect to the conflict in Yugoslavia, Allen asserted that the supposed creation of Serb babies is based on the idea that when women are forcibly impregnated, their identities are erased entirely; in her own words, they are treated merely as “sexual containers”.111 This statement is problematic for several reasons: Pertaining to terminology, the more appropriate term would perhaps be “reproductive container”, as Allen did not actually refer to sexualized violence per se, but to the fact that women were targeted in order to induce pregnancy and childbirth, and thus to violations of reproductive autonomy. Furthermore, her statement neglected the fact that the women were targeted precisely because of their identity as members of the Bosnian Muslim or Croatian groups. Most importantly, however, Allen misconstrued the crucial element of the genocidal, and thus destructive, strategy behind forced impregnation: It is not decisive whether the children would in fact be considered members of the Serb group, but whether they would not be considered members of the Bosnian Muslim/Croatian group.112 In other words, in order to establish whether genocide has been committed, it is necessary to determine whether the children will not be considered members of the targeted group (negative determination), and not which group, if any, they will consequently belong to (positive determination).

4.2.4.2

Marginalization of Children Born of Rape

Against this conceptual background, the common assertion that a child born from forced impregnation committed by a member of a different ethnic group would be ethnically different from his or her mother is problematic. It not only reiterates and thus reinforces a “genetic and cultural patriarchal myth”,113 but also validates the concept of “ethnic purity” as well as its desirability.114 In fact, labelling the children as members of the perpetrators’ group (or denying their membership in the mothers’ group) would imply a certain acceptance and validation of the perpetrators’ possible genocidal policy.115 It creates or reinforces a “normative stigma” to the effect that the children’s identity is defined exclusively by their fathers’ ethnicity.116 Some have tried to overcome this dilemma by explicitly relying on the subjective logic and intention of the perpetrators, while pointing out that it is objectively false.117 However, it has been argued, most prominently by Charli Carpenter, that 110 See

Epik 2018, p 34. 1996, pp 87, 97. 112 See Carpenter 2000b, pp 443–444. See also Card 2008, p 188. 113 Salzmann 1998, p 364. See also Seto 2013, pp 123–125; Weitsman 2007, pp 111–112. 114 Markovic 2007, pp 454–455; Salzmann 1998, p 364. 115 See also Weitsman 2007, p 118. 116 Neenan 2018. 117 Allen 1996, pp 87–101; Card 2008, pp 184–185; Cudd 2008, p 192; Short 2003, pp 512–514. 111 Allen

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this approach also ignores the impact that pregnancy-related crimes have on children who are born as a result.118 They are not addressed as victims and their agency is denied by stigmatizing them as ethnically different, as “children of the enemy”.119 This “othering” of children may result in severe limitations of their human rights, as Carpenter pointed out.120 In her analysis of “birth-by-forced-maternity” as a crime of genocide against the children born of rape, Carpenter distinguished between three conceptualizations:121 First, she explored the perpetrators’ perspective on the children’s identity, concluding that this perspective is to be rejected because it would require careful analysis in each individual case, leading to disparate results. In addition, it would further reinforce the genocidal logic and negate the child’s self-determination. Second, she analysed the perspective of the target group, holding that this would generally lead to a rejection of the children from the group. According to Carpenter, this perspective is problematic because it would highlight the conflict between the group’s self-determination and the children’s rights. She preferred the third approach, which avoids a clear attribution to one group or the other. Instead, this approach explores different concepts developed by critical race studies relating to mixed-race individuals, classifying the children as part of either none of the groups, both groups, or a separate “mixed-race” group. Carpenter’s arguments illustrate that questions of ethnicity and impact on children cannot be answered in the abstract. They arise within various aspects of the legal analysis as to whether the elements of the crime of genocide are fulfilled. Some of these issues, for example relating to the social and cultural impact of the different conceptualizations on the children, are not strictly of a legal nature. However, since the legal analysis cannot be conducted independently of its social implications, they serve as an important backdrop for the following sections.

4.2.5 Summary and Evaluation The differing views on the possible genocidal effects of forced impregnation and forced pregnancy illustrate that a clear conceptualization is necessary in order to analyse whether and under which circumstances these acts fall within the scope of the crime of genocide. The previous section has shown that a large part of the multidisciplinary discourse on pregnancy-related crimes as genocide has focused on the birth of children, though predominantly without addressing these children as agents. It is suggested here that an evaluation of the objective elements of the crime of genocide should instead focus on the violation of the rights of the directly affected person. While the criminalization of genocide primarily protects a certain group’s 118 Carpenter

2000a. See also Seto 2013, pp 119–125. Carpenter 2000b, pp 454–455; Markovic 2007, p 455. 120 Carpenter 2010, p 18. 121 Carpenter 2000a, pp 230–239. 119 See

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right to exist as a collective interest, the genocidal acts encompassed under Article II of the Genocide Convention target individual group members. Although the specific acts rise to the level of genocide only because the individuals are attacked in their identity as group members, this does not mean that the crime exclusively protects collective interests. Rather, it is precisely the perpetrator’s reduction of the targeted individuals to their group membership, and thus their depersonalization and objectification, which justifies the protection of their individual interests under the crime of genocide.122 In the light of this protection of the individual victim’s interests, the focus of the analysis of the genocidal nature of forced impregnation and forced pregnancy should be on the violation of the victim’s autonomy to make reproductive choices, i.e. whether, how and under what circumstances to reproduce. Conversely, the questions whether a child is born and to which ethnicity this child would belong must be considered as subordinate. This approach to determining the genocidal nature of pregnancy-related crimes will be further analysed with a view to the legal characterization under the Genocide Convention in the following section.

4.3 The Prosecution of Pregnancy-Related Crimes as Genocide Guided by the analysis above, this section explores the prosecution of forced impregnation and forced pregnancy under the crime of genocide pursuant to Article II of the Genocide Convention.123 Although the question whether forced impregnation and forced pregnancy amount to genocide has lost some of its urgency due to the incorporation of forced pregnancy as a crime against humanity and a war crime into the ICC Statute, it remains controversial.124 The following subsections evaluate whether the individual acts enumerated in the Genocide Convention encompass forced impregnation and forced pregnancy, and whether these forms of positive reproductive violence can be committed with an intent to destroy.

122 See

Ambos 2018, § 7 marginal no 125; Kreß 2018, marginal no 2; Werle and Jeßberger 2020, marginal nos 868, 871–872. 123 Genocide Convention, above n 1. 124 See e.g. Card 2008; Drake 2012; Engle 2005; Markovic 2007; Short 2003; Takai 2011.

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4.3.1 Preliminary Remarks 4.3.1.1

Legal Basis

Article II of the Genocide Convention serves as the legal basis for the following analysis. It reads as follows: In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

The acts listed in Article II of the Genocide Convention have been reproduced verbatim in the statutes of all international and hybrid courts that have dealt with the crime of genocide until today.125

4.3.1.2

The Relevant Act

The discourse on pregnancy-related crimes as genocide has so far lacked sufficient differentiation between forced impregnation and forced pregnancy. Especially before the adoption of the ICC Statute in 1998 with its explicit definition of “forced pregnancy” (Article 7(2)(f) of the ICC Statute), the terms were often used interchangeably.126 Nevertheless, it is important to distinguish between them in order to evaluate their criminalization as acts of genocide. “Forced impregnation” means the act of impregnating a person. It is immaterial whether the impregnation was caused by an act of rape or by artificial insemination. 125 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS

3 (entered into force 1 July 2002) (ICC Statute), Article 6; Statute of the International Criminal Tribunal for the Former Yugoslavia, adopted 25 May 1993 by United Nations Security Council Resolution 827 (ICTY Statute), Article 4; Statute for the International Criminal Tribunal for Rwanda, adopted 8 November 1994 by United Nations Security Council Resolution 955 (ICTR Statute), Article 2(2); Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, 10 August 2001, with inclusion of amendments as promulgated on 27 October 2004, NS/RKM/1004/006, Article 4(2); Statute of the Special Panels for Serious Crimes in the Courts of Dili, Regulation no. 2000/15 on the Establishment of Panels With Exclusive Jurisdiction Over Serious Criminal Offences, UN Doc. UNTAET/REG/2000/15, 6 June 2000, Article 4; Statute of the Extraordinary African Chambers, Annex to Accord Entre le Gouvernement de la République du Sénégal et l’Union Africaine sur la Création de Chambres Africaines Extraordinaires au Sein des Juridictions Sénégalaises, 22 August 2012, Article 5. 126 See Chap. 1, Sect. 1.3.3.1.

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It is necessary, however, that the perpetrator acted with intent to impregnate the woman. This is because it is precisely this element which links the conduct to a violation of the victim’s reproductive autonomy, thus distinguishing it from the act of rape. If the woman does not get pregnant even though the perpetrator intended to bring about this result, the act may be considered as an attempt. In cases of artificial insemination, the intent to impregnate is an innate component of the criminal conduct. In cases of rape, however, intent to impregnate may not always be present, even if a pregnancy does occur as a result. One may differentiate between two situations: First, the intent requirement is fulfilled in cases where the purpose of the rape was to impregnate the woman (dolus directus to the first degree). Conversely, knowledge of the result of impregnation (dolus directus to the second degree) is not plausible, because a perpetrator can never be (virtually) certain that an act of rape results in impregnation. Second, the perpetrator acted with the necessary intent to impregnate when he was aware of the possibility of inducing a pregnancy and reconciled himself with it (dolus eventualis).127 This scenario will apply to most cases of rape when the victim is assumed to be of a fertile age, unless the perpetrator undertook measures to prevent impregnation. The requirement of an intent to impregnate thus only excludes cases in which an impregnation occurred even though the perpetrator was not aware of this possibility, for example when contraception was used or when the perpetrator mistakenly assumed that the victim was infertile. “Forced pregnancy” refers to the detainment of a person who was forcibly impregnated. It is not necessary that the perpetrator responsible for the detainment is the same person who impregnated the woman; knowledge of the circumstance of forcible impregnation is sufficient. It is also important to highlight that for the purpose of evaluating whether forced pregnancy constitutes genocidal conduct, there are no special intent requirements. Particularly, the special intent required under Article 7(2)(f) of the ICC Statute for prosecuting forced pregnancy as a war crime or a crime against humanity does not apply to forced pregnancy as underlying conduct for the crime of genocide.

4.3.1.3

Determination of Group Membership Under the Crime of Genocide

The crime of genocide protects national, ethnic, racial, and religious groups.128 The question whether a person belongs to a particular group can be answered from different perspectives. Accordingly, different approaches to understanding group membership have been explored by the courts and in the literature in order to define whether the victim of an attack is a member of a certain group. In general, it would 127 The debate on whether dolus eventualis may fulfil the intent requirement of Article 30 of the ICC

Statute (see e.g. Werle and Jeßberger 2020, marginal nos 547–550, 561) is irrelevant at this stage, because the intent threshold is used only to conceptually differentiate the act of forced impregnation from an act of rape without a reproductive component. 128 Genocide Convention, above n 1, Article II.

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be possible to approach the determination of group membership from an objective or a subjective perspective. An objective perspective would take into account common traditions, language, or external features. In contrast, a subjective perspective would be based on social constructions of group membership either from an internal or from an external point of view.129 In the judgment against Akayesu, Trial Chamber I of the International Criminal Tribunal for Rwanda took a primarily objective approach.130 However, the Chamber encountered difficulties in identifying the Tutsis as an objectively distinct group, as they shared many characteristics with the group of the Hutus. Thus, the Chamber also referred to the social ascription of group identity within the Rwandan society.131 In the judgment against Kayishema and Ruzindana, Trial Chamber II applied a revised version of this approach, at least with regard to ethnicity, stating that [a]n ethnic group is one whose members share a common language and culture; or, a group which distinguishes itself, as such (self identification); or, a group identified as such by others, including perpetrators of the crimes (identification by others).132

In adopting this approach, the Chamber stipulated that objective and subjective approaches to identifying a group were to be applied alternatively; in other words, it would suffice for the constitution of a group if it could be identified as such either from an objective or from a subjective perspective.133 Endorsing and adapting this view, the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia applied an exclusively subjective approach in the judgment against Jelisi´c. While holding that a purely objective determination of religious group membership would be possible, the Chamber stipulated that only the identification by others captures the specific danger for the other three group types protected by the crime of genocide. It stated: [T]o attempt to define a national, ethnical or racial group today using objective and scientifically irreproachable criteria would be a perilous exercise whose result would not necessarily correspond to the perception of the persons concerned by such categorisation. Therefore, it is more appropriate to evaluate the status of a national, ethnical or racial group from the point of view of those persons who wish to single that group out from the rest of the community. The Trial Chamber consequently elects to evaluate membership in a national, ethnical or racial group using a subjective criterion. It is the stigmatisation of a group as a distinct national, ethnical or racial unit by the community which allows it to be determined whether

129 See

Werle and Jeßberger 2020, marginal no 875. 1998, above n 80, paras 510–516; see also De Brouwer 2005, pp 73–74; Paul 2008, p 87; Werle and Jeßberger 2020, marginal nos 876–877. 131 See e.g. Akayesu 1998, above n 80, para 171 (“[T]he Tutsi were conceived of as an ethnic group by those who targeted them for killing.”), para 702 (“[A]ll the Rwandan witnesses who appeared before it invariably answered spontaneously and without hesitation the questions of the Prosecutor regarding their ethnic identity.”). See also Martin 2009, p 123; Werle and Jeßberger 2020, marginal no 877. 132 ICTR, Prosecutor v Clément Kayishema and Obed Ruzindana, Judgment, 21 May 1999, ICTR95-1-T (Kayishema and Ruzindana 1999), para 98. 133 Martin 2009, p 123; Quigley 2013, p 153. 130 Akayesu

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a targeted population constitutes a national, ethnical or racial group in the eyes of the alleged perpetrators.134 [footnote omitted]

This approach of classifying groups exclusively on subjective grounds elicited criticism in legal scholarship.135 It was not adopted in other judgments of the ICTY and the ICTR. In fact, in a judgment issued just days before the ICTY’s Jelisi´c decision, Trial Chamber I of the ICTR held that while “membership of a group is, in essence, a subjective rather than an objective concept”,136 “subjective identification alone is not enough to determine victim groups”.137 Similarly, later ICTY decisions explicitly clarified that the determination cannot be conducted solely based on subjective grounds.138 Instead, most of the ad hoc tribunals’ decisions opted for a case-by-case determination of group membership, taking into account both objective and subjective criteria.139 This mixed subjective-objective approach generally found support in legal scholarship.140 According to the International Commission of Inquiry on Darfur, this mixed approach to classification of groups has become part of customary international law.141 In any case, considering that the identity factors included in the definition of the crime of genocide are social constructs and, as such, the identification of a group rests upon social perceptions, a clear distinction between objective and subjective characteristics is not possible.142 Against this background, the mixed approach deserves preference. The following subsections examine whether the acts of forced impregnation and forced pregnancy may amount to genocidal acts under Article II(b), (c), (d), or (e) of the Genocide Convention.

134 ICTY,

Prosecutor v Goran Jelisi´c, Judgment, 14 December 1999, IT-95-10-T, para 70. See also ICTY, Prosecutor v Radislav Krsti´c, Judgment, 2 August 2001, IT-98-33-T (Krsti´c 2001), para 557. 135 See Kreß 2018, marginal no 33; Schabas 2009, pp 127–128; Zahar and Sluiter 2008, p 162. 136 ICTR, Prosecutor v Georges Anderson Nderubumwe Rutaganda, Judgment, 6 December 1999, ICTR-96-3-T (Rutaganda 1999), para 56. 137 Ibid., para 57. See also ICTR, Prosecutor v Alfred Musema, Judgment, 27 January 2000, ICTR96-13-A (Musema 2000), paras 161–162. 138 Staki´ c 2003, above n 83, para 25; Brdanin 2004, above n 43, para 684. See also Martin 2009, p 125. 139 See e.g. Musema 2000, above n 137, para 163. See also Werle and Jeßberger 2020, marginal nos 880–881 with further references. 140 See Ambos 2013, pp 8–9; Ambos 2018, § 7 marginal no 128; Schabas 2009, p 128 (though leaning more towards subjective criteria); Werle and Jeßberger 2020, marginal no 882 with further references. However, some authors propose an exclusively objective or exclusively subjective approach: for an objective approach see Kreß 2018, marginal no 33, albeit with certain concessions towards a subjective corrective (marginal nos 38, 46); for a subjective approach from the perpetrator’s perspective see Paul 2008, pp 160–167. 141 International Commission of Inquiry on Darfur 2005, para 501. 142 See similarly Quigley 2013, p 156.

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4.3.2 Causing Serious Bodily or Mental Harm to Members of the Group Article II(b) of the Genocide Convention requires “causing serious bodily or mental harm to members of the group”. While the inclusion of physical harm not rising to the level of actual death was undisputed during the negotiations for the Genocide Convention, there was some controversy surrounding the concept and interpretation of mental harm.143 Seeing as the provision now encompasses bodily harm and mental harm as alternatives, the mental harm need not be connected to a physical attack or result in physically visible damage.144 It is not necessary that the harm suffered by the victim or victims actually resulted in or contributed to the destruction of the group; instead, for the purposes of the actus reus, it is sufficient to prove that one or more victims suffered serious harm of a physical or mental nature.145 The harm must be serious, but need not be permanent or irreversible.146 In the words of the ICTY Trial Chamber in Kristi´c, it must result “in a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life.”147 Whether the relevant acts meet the level of seriousness required for mental harm must be evaluated on a case-by-case basis.148 Regardless of whether the pregnancy was induced through an act of rape or through artificial insemination, by impregnating a person or by detaining a forcibly impregnated person, a perpetrator subjects her to a severe physical risk, which may amount to serious bodily harm under Article II(b) of the Genocide Convention.149 Particularly in cases where the perpetrator withholds access to adequate reproductive health services, or where such access is limited due to the overall conflict situation, pregnancy and childbirth pose the risk of serious pain, injury, and death.150 A form of bodily harm can also be seen in the impregnation and/or detainment of a forcibly impregnated woman in cases where there is a particular risk associated with the pregnancy. This may include cases of young girls “not biologically mature enough to support a healthy pregnancy”151 as well as women nearing the end of their reproductive age. Furthermore, a forcible impregnation may cause serious bodily harm 143 See

Lüders 2004, pp 173–176; Schabas 2009, p 181.

144 See Jeßberger 2009, p 98; Lüders 2004, pp 180–183; Schwarz 2019, p 134; Werle and Jeßberger

2020, marginal no 896. 145 See Ambos 2013, pp 12–13; Ambos 2018, § 7 marginal no 133; De Brouwer 2005, p 56; Jeßberger

2009, p 99; Lüders 2004, pp 185–186; Schabas 2009, p 188; Schabas 2016, marginal no 24; Schwarz 2019, p 143. 146 See Ambos 2013, p 12; Jeßberger 2009, pp 98–99; Lüders 2004, pp 186–187; Schwarz 2019, p 142; Werle and Jeßberger 2020, marginal no 897. 147 Krsti´ c 2001, above n 134, para 513. 148 Kayishema and Ruzindana 1999, above n 132, para 113. See also Lüders 2004, p 187. 149 See Fisher 1996, p 123; Goldstein 1993, pp 17, 23; Paul 2008, pp 190–191; Schwarz 2019, p 149. 150 See Chap. 3, Sect. 3.2.3. 151 Fisher 1996, p 123.

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by way of damaging a woman’s future capacity to conceive, carry a pregnancy, and bear a child.152 Forced impregnation and forced pregnancy may also cause serious mental harm.153 Being impregnated against one’s will and/or being detained after a forcible impregnation and thus prevented from choosing whether to continue the pregnancy may bring about severe psychological trauma.154 The visibility of pregnancy and childbirth may intensify the traumatization and stigmatization of the sexual assault.155 The social ostracization of a person who was forcibly impregnated may also induce psychological stress.156 As mentioned above, it must be evaluated on a case-bycase basis whether this consequence meets the degree of seriousness required under Article II(b) of the Genocide Convention. This may be indicated by the following aspects: The psychological trauma induced by forced impregnation and/or pregnancy may result in the person’s inability to enjoy a normal sexual and reproductive life in the future.157 Further, the stigma may be particularly severe in conflicts with ethnical or racial dimensions, when the perpetrator of the forced impregnation is not a member of the woman’s group, and the woman is deemed to be carrying a “child of the enemy”.158

4.3.3 Deliberately Inflicting on the Group Conditions of Life Calculated to Bring About Its Physical Destruction in Whole or in Part Article II(c) of the Genocide Convention enumerates “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” as a genocidal act. This provision aims at “slow-death measures”, meaning measures which do not immediately cause death, but which are suited and intended to bring about the physical destruction of the group in the long term.159 It was adopted specifically against the background of certain Nazi atrocities, namely forced labour and imprisonment in concentration and/or extermination camps as well as forced

152 See

ibid. Buehler 2002, p 165; Fisher 1996, p 122; Goldstein 1993, p 23; Green et al. 1994, p 194; Soh 2006, pp 335–336. 154 See Goldstein 1993, pp 17–18; Green et al. 1994, p 237; Paul 2008, pp 190–191; Schwarz 2019, p 149. 155 See Chap. 3, Sect. 3.2.3. 156 See Buehler 2002, p 165. 157 See Fisher 1996, p 122. 158 See Greve 2008, p 33; Grey 2017, p 907; Leatherman 2011, p 49; United Nations Security Council 2019, para 20. 159 See Adams 2013, p 180; Ambos 2013, p 13; Jeßberger 2009, p 100; Schabas 2009, p 191; Schwarz 2019, p 151; Werle and Jeßberger 2020, marginal no 898. 153 See

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deportations under life-threatening, inhumane circumstances.160 As examples for acts covered by the provision, the ICTR’s Akayesu Trial Chamber named “subjecting a group of people to a subsistence diet, systematic expulsion from homes and the reduction of essential medical services below minimum requirement.”161 Similarly, the ICC Elements of Crimes state in a footnote that conditions of life covered by the provision may include “deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion from homes.”162 As noted above, the provision also covers rape and other forms of sexualized violence.163 It is not necessary to prove that the conditions actually led to the group’s destruction or to the death of any group members.164 Instead, the provision covers such measures that cause a specific threat to the group’s physical existence.165 Pertaining to the term “calculated”, some authors require that the measures be objectively suitable to lead to the group’s physical destruction,166 while others view it as a subjective element, entailing that the perpetrator specifically intended to bring about the physical destruction.167 It has been asserted by some that pregnancy-related acts may fall under the ambit of Article II(c) of the Genocide Convention.168 Their reasoning is similar to how the assertion that rape may be a condition of life inflicted to bring about the group’s physical destruction has been justified.169 These authors referred to “Islamic law”170 or “traditional Islamic culture”171 in which, so they claimed, women who had been sexually assaulted would face rejection due to a prohibition of pre-marital or extra-marital sexual relations. One may argue, like Fisher and Goldstein, that these effects are exacerbated through the visibility of pregnancy and childbirth as well as the permanency of having born a child: Women who have been forcibly impregnated or forced to bear a child resulting from forcible impregnation may be deemed unmarriageable and be rejected by their husbands, families, and communities.172 160 See

Werle and Jeßberger 2020, marginal no 899. Another example for the latter category are the so-called deportations of the Armenian population under Ottoman rule in 1915, see Kreß 2018, marginal no 57; Schabas 2009, pp 192–193. 161 Akayesu 1998, above n 80, para 506. 162 ICC Elements of Crimes, Article 6(c), no. 4, footnote 4. 163 See Chap. 2, Sect. 2.4.3.2. 164 See Ambos 2013, p 13; De Brouwer 2005, p 56; Jeßberger 2009, pp 100–101; Lüders 2004, pp 187–188; Schabas 2009, p 192; Schwarz 2019, p 151. 165 See Ambos 2018, § 7 marginal no 135; Schwarz 2019, pp 151–152. 166 See Kreß 2018, marginal no 54; Lüders 2004, pp 189–192; Werle and Jeßberger 2020, marginal no 900. 167 See Ambos 2013, p 13; Ambos 2018, § 7 marginal no 134; Ambos and Wirth 2001, pp 784–786; Paul 2008, p 195; Schwarz 2019, p 152. 168 See Fisher 1996, pp 123–124; Goldstein 1993, p 23; Green et al. 1994, p 194. 169 See Adams 2013, pp 179–180; Bassiouni and Manikas 1996, p 587; Paul 2008, p 198. 170 Bassiouni and McCormick 1996, p 587. 171 Fisher 1996, p 123; see also Paul 2008, p 198. 172 See Fisher 1996, pp 123–124; Goldstein 1993, p 23.

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Regardless of whether these over-generalizations are factually accurate, and whether such effects are in fact limited to “Islamic culture”, the legal characterization under Article II(c) of the Genocide Convention is unconvincing. The provision requires that the measures be calculated to bring about a group’s physical destruction. It does not cover social consequences on the group, such as the ostracization of women who were forcibly impregnated or who have born a child resulting from forcible impregnation.173 This would only be the case under exceptional circumstances, namely when the acts are carried out on such a large and systematic scale that they pose a concrete threat for the group’s physical existence, which does not appear likely. The immediate psychological harm suffered due to the ostracization from families or communities is better encompassed under Article II(b) of the Genocide Convention. This also applies to the immediate physical harm of being forcibly impregnated and detained, as explained in the previous subsection. If the relevant acts are directed towards interfering with the group’s capability to reproduce, this would be consumed by Article II(d) of the Genocide Convention as the more specific provision.

4.3.4 Imposing Measures Intended to Prevent Births Within the Group Article II(d) of the Genocide Conventions prohibits, as a form of genocide, “imposing measures intended to prevent births within the group”.174 This provision targets the destruction of a protected group through removing its capability to reproduce.175 As a form of “biological genocide”,176 it is thus a clear example of a reproductive offense.177 The provision covers intended restrictions of births, whether physical, legal, or social.178 Particularly, it has been interpreted to include the acts of enforced sterilization, compulsory abortion, segregation of the sexes, and obstacles to marriage,179 all of which had been explicitly listed in a previous draft of the Genocide Convention.180

173 See

Schwarz 2019, p 154. See also Lüders 2004, pp 192–193, 219; Kreß 2018, marginal no 55, pointing out that including social destruction of a group would undermine the drafters’ intention not to include “cultural genocide”. 174 See also ICC Statute, above n 125, Article 6(d); ICTY Statute, above n 125, Article 4(2)(d); ICTR Statute, above n 125, Article 2(2)(d). 175 Jeßberger 2009, p 101; Kreß 2018, marginal no 58. 176 Adams 2013, p 128; De Brouwer 2005, pp 43–44; Jeßberger 2009, p 101; Schabas 2009, p 197; Schwarz 2019, p 155. 177 See Chap. 3, Sect. 3.3.3. 178 See United Nations Economic and Social Council 1947, p 26. 179 See De Brouwer 2005, pp 43–44. 180 United Nations Economic and Social Council 1947, pp 6, 26; see also Schabas 2009, p 197.

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It is not required that the measures imposed by the perpetrator actually succeeded, i.e. that they resulted in a prevention or restriction of births;181 instead, the structure of the provision entails that the imposition of measures in itself—and not the prevention of births—satisfies the actus reus.182 The perpetrator must (objectively) impose measures; these measures must (subjectively) follow the purpose of preventing births within the group. Nevertheless, some commentators further require that the measures imposed were objectively suitable to result in a prevention of births.183 This restrictive interpretation, which would in any case only exclude such measures which are absolutely unsuitable to prevent births from an objective perspective, may appear justified in the light of the objective impact necessary for the acts listed in the other four paragraphs of Article II of the Genocide Convention. However, it circumvents the clear wording of Article II(d), which does not suggest that the result of birth prevention must have been likely or possible to occur. It only requires that the perpetrator subjectively intended to cause such a result.184 The measures must have been imposed in a forcible manner.185 This excludes, for example, the legalization of abortions186 as well as granting access to birth control unless an element of coercion is involved.187 The intended result of birth prevention may be induced physically or mentally.188 In analysing the genocidal nature of forced impregnation and/or forced pregnancy, imposing measures intended to prevent births under Article II(d) of the Genocide Convention is most frequently referred to,189 but it has also proven to be the most controversial provision. Support for its applicability came from the ICTR’s Akayesu Trial Chamber. In an obiter dictum, it stated that the deliberate impregnation of a woman by a man from another group is a birth-preventing measure if it is carried out 181 See

Kreß 2018, marginal no 62. Adams 2013, p 128; De Brouwer 2005, p 59; Jeßberger 2009, p 102; Lüders 2004, p 197; Paul 2008, p 203; Schabas 2009, p 198; Schwarz 2019, p 155. During the negotiations of the ICC’s Elements of Crimes, the United States proposed to include an element requiring “[t]hat the measures imposed had the effect of preventing births within that group”, Preparatory Commission for the International Criminal Court 1999. This was not adopted. See also Schabas 2009, pp 197–198, on the different proposals during the negotiations for the Genocide Convention. 183 See Kreß 2018, marginal no 61; Paul 2008, p 203; Schwarz 2019, p 155. In this vein, see also Croatia v Serbia 2015, above n 81, para 166: “[I]t is necessary that the circumstances of the commission of those acts, and their consequences, are such that the capacity of members of the group to procreate is affected.” 184 See also Lüders 2004, p 197. 185 See Jeßberger 2009, p 102; Paul 2008, p 204; Schwarz 2019, p 159; Werle and Jeßberger 2020, marginal no 902. 186 See Lüders 2004, p 197; Paul 2008, p 204; Werle and Jeßberger 2020, marginal no 902. 187 See also International Law Commission 1996, p 46. 188 Akayesu 1998, above n 80, para 508; Rutaganda 1999, above n 136, para 53; ICTY, Prosecutor v Zdravko Tolimir, Judgment, 12 December 2012, IT-05-88/2-T (Tolimir 2012), para 743. See also Schwarz 2019, p 156. 189 See Bassiouni and Manikas 1996, p 588; Buehler 2002, p 165; Goldstein 1993, p 24; Green et al. 1994, p 194; Russell-Brown 2003, p 355; Schwarz 2019, pp 156–158; Soh 2006, p 336; Werle and Jeßberger 2020, marginal no 902; Wing and Merchán 1993, p 18. 182 See

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with the intent to have the woman give birth to a child who, especially in a patriarchal society, would not belong to the mother’s group.190 Arguments in support of the application of Article II(d) of the Genocide Convention to forced impregnation and/or forced pregnancy are multifold. In their essence, they can be categorized into two groups: (1) prevention of births due to long-term effects on the victim’s reproductive capacity, and (2) prevention of births due to the fact that the victim carries and/or bears a child who supposedly will not belong to the victimized group.

4.3.4.1

Birth Prevention Through Long-Term Effects on Reproductive Capacity

Damaging a person’s reproductive capacity can be a means of preventing births. A victim’s inability or unwillingness to reproduce may be the result of physical, psychological, or social factors. Physical inability to reproduce may occur due to blunt damage to the victim’s reproductive organs or infections stemming from the sexualized violence,191 but also due to complications in pregnancy192 . Accordingly, both the act of impregnation and the act of detainment of a forcibly impregnated woman may lead to a prevention of births within that woman’s group in the future. However, it must be noted in this regard that Article II(d) of the Genocide Convention requires that the measure be intended to prevent births. In other words, it is not sufficient that the act of impregnation or detainment during pregnancy factually resulted in the victim’s infertility; the perpetrator must have intended to cause this effect, meaning that he or she must at least have been aware of the risk of infertility and reconciled himself or herself with it. These considerations also apply to psychological trauma leading to unwillingness or inability to reproduce. While the trauma of being forcibly impregnated and/or detained during the pregnancy may certainly result in an inability to experience an autonomous sexual and reproductive life in the future,193 prosecution under Article II(d) of the Genocide Convention requires proof that the perpetrator impregnated and/or detained the woman with the intent to cause these psychologically induced consequences.194 190 Akayesu

1998, above n 80, para 507. See also Chap. 3, Sect. 3.3.4.1. Paul 2008, pp 204–205. 192 See Goldstein 1993, p 24. 193 See Fisher 1996, p 122. 194 In support of the application of Article II(d) of the Genocide Convention, above n 1, in cases of psychological trauma leading to inability or unwillingness to reproduce, see Buehler 2002, p 165 (“[…] psychological consequences for the woman that equally might prevent her from giving birth to children of her own group in the future.”); Paul 2008, p 205; Wing and Merchán 1993, p 19 (“[A]s a result of the rapes, these women are unlikely to want to have sex […], which will also lead to a prevention of births of Bosnian Muslim children.”). 191 See

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The most likely scenario appears to be an inability to reproduce for social reasons. Particularly with regard to the Bosnian Muslim group, many authors assumed that victims of forced impregnation and/or forced pregnancy would be deemed “unmarriageable” within their own social group, which would also entail their inability to reproduce.195 Indeed, the stigmatization of victims of gender-based violence, regardless of their gender, has been well documented. These effects are typically exacerbated in cases of pregnancy and childbirth, when the violations become more visible.196 However, sweeping assumptions to the effect of the victim’s “unmarriageability” are inappropriate. Instead, the perpetrator’s state of mind must be carefully analysed—taking into account the cultural and social context—in order to ascertain whether the relevant act was committed with the intent of inducing a stigmatization of the victim, which would result in her inability to reproduce.

4.3.4.2

Birth Prevention Through the Birth of a Child: The Akayesu Scenario

A further possibility that has been explored in the literature197 and taken up by the Akayesu Trial Chamber198 with respect to Article II(d) of the Genocide Convention applies exclusively to ethnic groups and relies on the intended result of childbirth. According to this view, impregnation or detainment during the pregnancy can be aimed at preventing births within the group because the child who may be born as a result of these acts would not be accepted as part of his or her mother’s ethnic group. Some scholars put forward an alternative line of this ethnicity-based argument under the catchphrase “occupation of the womb”. They asserted that during the time of the forcibly induced and/or maintained pregnancy, the person is unable to carry

195 See

Goldstein 1993, p 24 (“If […] as a result of her pregnancy she is rendered unmarriageable within her community, the enforced pregnancy may preclude her permanently from having a child of her own ethnicity or genetic heritage.”); Lüders 2004, p 219; Paul 2008, p 205; Russell-Brown 2003, p 355 (“[R]ape as an act of genocide as ‘practiced’ in Bosnia resulted, inter alia, in the prevention of births within the particular ethnic group of the victim, because […] the victim would no longer be a desirable candidate for having children of her own ethnicity.”); Soh 2006, p 336 (“The number of the ‘pure’ ethnic group is then decreased as victims are rejected as potential candidates for physical and cultural procreation.”); Wing and Merchán 1993, p 19 (“[A]s a result of the rapes, these women are unlikely […] to be accepted sexually by their spouses or potential spouses, which will also lead to a prevention of births of Bosnian Muslim children.”). See also Fisher 1996, p 93 (“[W]omen who are raped and bear the children of the aggressors may no longer be marriageable in their society.”), though not specifically in the context of Article II(d) of the Genocide Convention, above n 1. 196 See Chap. 3, Sect. 3.2.3. 197 See Bassiouni and Manikas 1996, p 588; Fisher 1996, p 124, footnote 205; Russell-Brown 2003, p 355; Schwarz 2019, pp 156–158; Soh 2006, p 336; Werle and Jeßberger 2020, marginal no 902; Wing and Merchán 1993, pp 18–19. 198 Akayesu 1998, above n 80, para 507.

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an embryo and bear a child that would become a member of her own group, thus preventing births within the group.199 Both lines of this argument assume that children born as a result of the forced impregnation will be ethnically different from their mothers. As discussed above, to determine whether births within a particular group have been prevented, it is not necessary to determine positively which group a child will belong to.200 Rather, the normative analysis must remain limited to the question whether the child will not belong to the victimized group. Still, this raises the question of how a child’s group membership is to be determined. The application of the mixed approach to group classification, which relies on a combination of objective and subjective criteria,201 to pregnancy-related crimes and children born of rape has not received any attention in the literature thus far. This is somewhat surprising, given that, in this context, conflicts between (objective) biological realities and (subjective) social conceptions of identity factors are bound to occur. The limitations of an exclusively objective approach to group classification become obvious when attempting to assess ethnic group membership of children born of rape. How can ethnicity, as a social and cultural construct, be objectively determined? This assessment can only be made with respect to the individual circumstances in the victimized group. Particularly, it must be considered how the identity factor of ethnicity is constructed and how membership in this group is typically established. The determination of whether a child will be rejected from his or her mother’s group cannot be conducted without considering the group’s (subjective) perception. When applying subjective criteria, one may distinguish between the perspective of the target group on the one hand and that of the perpetrators on the other hand. Regarding the victimized group, there is no generalized conception of how group membership is established. Whether children born of rape will be accepted as part of the group depends entirely upon the group’s attitude towards women who have suffered sexualized and reproductive violence as well as its attitude towards these children.202 Thus, in cases where the objective genetic reality and social perceptions fall apart, Schwarz favoured a subjective approach based on the perspective of the perpetrators, which he asserted would be in line with the subjective construction of the crime of genocide requiring specific intent to destroy.203 More precisely, it is the 199 Most notably, though not explicitly in regard of Article II(d) of the Genocide Convention, above

n 1, see Fisher 1996, p 93 (“[T]he women, simply because they are pregnant with the children of the aggressors, cannot bear their own children during this time – their wombs are ‘occupied’.”). See also Bassiouni and Manikas 1996, p 588 (“[D]uring the time of the pregnancy, women of the target group are unable to have children of the group.”); Buehler 2002, p 165 (“physical circumstance of the victim’s pregnancy with a foetus of the perpetrator’s ethnicity”); Goldstein 1993, p 24 (“For at least the nine months it takes to carry the rapist’s child to term, a woman is incapable of conceiving and bearing a child of her own ethnicity.”); MacKinnon 2005, p 327; Paul 2008, p 205. 200 See this chapter, Sect. 4.2.4. 201 This chapter, Sect. 4.3.1.3. 202 See this chapter, Sect. 4.2.4. 203 Schwarz 2019, pp 157–158.

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subjective nature of the requirement of intended birth prevention which suggests that the perpetrator’s perspective should be decisive. If the perpetrator intended that the woman carry and/or bear a child who will not be accepted into her group, this would suffice to fulfil the requirement of a measure intended to prevent births within the group. One could object that such an approach entirely depends on the perpetrator’s assumption that the target group will accept his perspective as its own and effectively self-destroy by way of ostracizing children born of rape.204 But a perpetrator’s expectation that a group will act in this manner does not appear entirely unrealistic, particularly in ethnically motivated conflicts. In fact, the rejection of children born of rape from their families or communities has been documented in various conflict scenarios, most prominently in Bosnia and in Sierra Leone.205 More importantly, Article II(d) of the Genocide Convention does not require that the measure be intended to prevent births directly; the necessity of an intermediate step does not mean that the element of intended birth prevention cannot be fulfilled. When an assessment of a potential child’s group membership is deemed necessary, it should be conducted with a view to the perpetrator’s state of mind. If the perpetrator intended to prevent births within the target group by creating a child who, in his view, would be ostracized from the mother’s group, that would fulfil the element of intended birth prevention under Article II(d) of the Genocide Convention. It is thus not necessary to evaluate whether the child who was born as a result of the imposed measures actually faced rejection from the target group after his or her birth. While this line of reasoning is legally sound with respect to the requirement of intended birth prevention, it still raises problems concerning the acceptance of problematic, and often patriarchal, notions of ethnic identity and group membership. Against this background, it is suggested that an assessment of the child’s group membership is not in fact decisive under Article II(d) of the Genocide Convention at all. Instead of the birth of a child, the restriction of the victimized woman’s freedom to choose whether, how, and under what circumstances to reproduce is at the heart of the imposed measures of genocidal forced impregnation or forced pregnancy. In respect of prevention of births within a group, this translates to an interference with the woman’s freedom to conceive and bear children in accordance with her own and her group’s social construction of (ethnic) identity. In other words, the decisive factor is the woman’s prevention, at least for the period during and shortly after the forcibly induced or maintained pregnancy, from conceiving and bearing a child under conditions that would conform to her group’s construction and understanding of group membership. Essentially, acts covered by Article II(d) of the Genocide Convention are violations of the group’s capability to reproduce on their own socially ascribed terms. Through attacking the individual victim’s reproductive autonomy, i.e. her choice whether to become pregnant and whether to bear a child, the perpetrator also attacks the group’s ability to reproduce autonomously. 204 See

Carpenter 2000a, p 232 in the context of Article II(e) of the Genocide Convention, above n 1. 205 See Chap. 3, Sect. 3.2.2.

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Summary

Forcible impregnation and forced pregnancy may fulfil the elements of the genocidal act of imposing measures intended to prevent births within the group under Article II(d) of the Genocide Convention. This is the case when the acts were aimed at hampering with the woman’s capacity to reproduce in the future, either through physical or psychological traumatization, or through imposing a stigma with the purpose of rendering her socially unable to reproduce. Further, the acts may fall under Article II(d) when the perpetrator aimed to cause the victim to bear a child who will not be accepted into her ethnic group. In this regard, it is suggested here that a more precise argument for the fulfilment of the elements of Article II(d) of the Genocide Convention is based on the nature of the provision as a reproductive offense, not on the actual birth of a child resulting from forcible impregnation. If the perpetrator, through imposing the measures, aimed to bring about a situation in which he expects the woman to be unable to make reproductive choices conforming to her group’s construction of ethnic identity and group membership, he intended to prevent births within the group.

4.3.5 Forcibly Transferring Children of the Group to Another Group Article II(e) of the Genocide Convention covers the genocidal act of “forcibly transferring children of the group to another group.” It is the only remaining element of the concept of “cultural genocide”, which entails an attack upon the group’s specific cultural characteristics and identity.206 All other forms of “cultural genocide” that had originally been proposed during the negotiations for the Genocide Convention, such as prohibitions of the use of language and destruction of books, were finally rejected by the drafters.207 The provision on forcible transfer of children was included at the last minute against the background of the abduction and transfer of Greek children into communist countries at the end of World War II.208 The prohibition of the forcible transfer of children aims at preventing the destruction of a group’s cultural identity by way of effectuating that the next generation will not be familiarized with the group’s culture, i.e. its language, traditions, and customs.209 However, it also encompasses elements of “biological genocide”. Similar to “imposing measures intended to prevent births within the group” (Article II(d) of the Genocide Convention), the forcible transfer of children in the long term

206 See

Ambos 2013, p 14; Kreß 2018, marginal no 65; Lüders 2004, p 198; Werle and Jeßberger 2020, marginal no 904. 207 See Schabas 2009, pp 207–221 with further references to the process of negotiations. 208 See Carpenter 2000a, p 225; Paul 2008, p 208. 209 See Jeßberger 2009, p 103; Lüders 2004, p 200; Werle and Jeßberger 2020, marginal no 905.

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deprives the group of its capability to reproduce.210 The International Law Commission also acknowledged this, stating that “[t]he forcible transfer of children would have particularly serious consequences for the future viability of a group as such.”211 The provision requires only that children be separated from their group or that the group be separated from them, not that they be actively integrated into another group.212 The element of forcible transfer does not imply that physical force is necessary; rather, it is to be understood broadly and may also include threat of force or coercion.213 It is not the forcible act as such, but the consequence of a transfer that is at the heart of the provision. Therefore, it is necessary to prove that the transfer of children actually occurred and succeeded.214 In accordance with the Convention on the Rights of the Child, “children” means all persons under 18 years of age.215 Some authors have argued that through forced impregnation or forced pregnancy, children are forcibly transferred from one (ethnic) group into another. With respect to the reports of “rape camps” in the former Yugoslavia, Salzman asserted that children were transferred from the group of the (Serb) perpetrators into the (“Muslim or Catholic”) victimized group.216 Pointing out that both perpetrators and victims believed the children would inherit the father’s genealogy (patrilineality), Salzman ostensibly assumed that they would be brought up within the mother’s group. He concluded that “[c]ultural genocide […] results because the presence of these children and the knowledge of the circumstances under which they were conceived causes strife and resentment within the community and serves as a constant reminder of Serbian oppression and violence.”217 However, regardless of the factual accuracy of his statements, Salzman misconstrued the genocidal act of forcibly transferring children of the group to another group under Article II(e) of the Genocide Convention. From the wording of the provision, it is evident that children must be transferred from the target group, not into the target group, as Salzman argued with regard to 210 See

Kreß 2018, marginal no 65; Lüders 2004, p 200; Paul 2008, p 207; Werle and Jeßberger 2020, marginal no 905. 211 International Law Commission 1996, p 46. 212 See Kreß 2018, marginal no 67; Paul 2008, p 209; Werle and Jeßberger 2020, marginal no 906. 213 See Kreß 2018, marginal no 68; Lüders 2004, pp 202–205; Paul 2008, pp 208–209; Werle and Jeßberger 2020, marginal no 907. In this regard, the German translation of forcibly, “gewaltsam”, in Section 6(1) no. 5 of the German Code of Crimes Against International Law appears too restricted. See also ICC Elements of Crimes, Article 6(e), no. 1, footnote 5: “The term ‘forcibly’ is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment.” 214 See Lüders 2004, p 201; Paul 2008, p 209. 215 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), Article 1. See Kreß 2018, marginal no 66; Lüders 2004, p 202; Paul 2008, p 210; Werle and Jeßberger 2020, marginal no 906. This approach was adopted in the ICC Elements of Crimes, Article 6(e), no. 5. However, see also Schabas 2009, p 203, pointing out that older children are less likely to be deprived of their group’s cultural identity. 216 Salzmann 1998, p 375. 217 Ibid., p 375.

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Yugoslavia. Thus, these arguments are not persuasive. In fact, the assertion that children born of forced impregnation/pregnancy would most likely be brought up within their mothers’ communities has often been used to dispute the claim that it could be considered a genocidal practice.218 Other arguments in favour of the application of Article II(e) of the Genocide Convention correctly focused on the transfer from the target group. De Brouwer stated that because children born as a result of rape in a patriarchal society would “belong to the group to which the man belongs”, a transfer takes place not “in the physical sense of the word, but because the perpetrator creates a new child” belonging to his group.219 In the case against Serbia and Montenegro before the International Court of Justice, Bosnia and Herzegovina also employed this argument to support the claim that genocide had been committed.220 Using the term “procreative rape” to describe the practice of “impregnating Muslim women with the sperm of Serb males”, it argued “that children born as a result of these ‘forced pregnancies’ would not be considered to be part of the protected group and […] that the intent of the perpetrators was to transfer the unborn children to the group of Bosnian Serbs”.221 On a similar note, Wing and Merchán also assumed that the child born to a Bosnian Muslim woman as a result of rape by a Serb perpetrator would be “non-Muslim”. In contrast to De Brouwer and the arguments used by Bosnia and Herzegovina in the case before the International Court of Justice, Wing and Merchán then argued that the child is transferred from its Muslim group “into an ethnic/religious limbo […], some unrecognized ‘mixed’ ethnicity that is not likely to be accepted among Muslims or Serbs.”222 In fact, as pointed out above, Article II(e) of the Genocide Convention does not require that children were actively integrated into another group, in this case the Serb ethnic group; it would be sufficient to prove that they were separated from their original group, in this case the Bosnian Muslims. However, the arguments laid out above are not convincing. If it is correct to assume, like those in support of the application of Article II(e) of the Genocide Convention do, that the children born as a result of forced impregnation/pregnancy belong to their father’s ethnic group due to the patrilineal nature of the relevant societies, this would apply from the moment of their birth. If they were never actually part of their mother’s group, it follows that a transfer from that group could not have taken place.223 Furthermore, taking into account that the drafters of the Genocide Convention chose not to include “cultural genocide”, a restrictive interpretation of Article II(e) of the Convention is appropriate. Hence, given the ordinary meaning of

218 See

Bosnia and Herzegovina v Serbia and Montenegro 2007, above n 45, para 366. Brouwer 2005, p 60. See also Green et al. 1994, p 194; Healey 1995–1996, p 371; Karagiannakis 1999, pp 488–489. 220 See also Marino 2009, pp 222–223. 221 Bosnia and Herzegovina v Serbia and Montenegro 2007, above n 45, para 362. 222 Wing and Merchán 1993, pp 19–20. 223 See also Carpenter 2000a, pp 225–227; Carpenter 2000b, pp 441–442. 219 De

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the word, “transfer” is to be understood to refer only to the physical act of transfer in the sense of a physical separation from the group of origin.224 To conclude, forced impregnation and forced pregnancy cannot be considered genocidal acts under Article II(e) of the Genocide Convention.

4.3.6 The Intent to Destroy Besides intent and knowledge pertaining to the material elements of the crime,225 the mens rea requires that the perpetrator act with intent to destroy a protected group as such in whole or in part (Article II of the Genocide Convention). This constitutes a specific intent requirement, which legitimizes the criminalization of genocide as an international crime, threatening the international community as a whole.226 Accordingly, the specific intent to destroy is the key element of the crime of genocide.227 The intent to destroy does not correspond with any objective element of the crime, meaning that the destruction of the group does not actually need to occur.228

4.3.6.1

Degree of Intent

There is some controversy as to the meaning of “specific” or “special” intent to destroy a group. Most commentators229 as well as the international courts230 follow a “purpose-based approach”. This approach emphasizes the voluntary element of intent, meaning that it was the perpetrator’s purpose, aim, or desire to destroy the group (dolus directus to the first degree). Conversely, some authors support what is known as the “knowledge-based approach”, which focuses on the cognitive element of intent.231 Following this approach, it would be sufficient for the perpetrator to know of the organized attempt to destroy the group. However, this runs counter to

224 See

also Lüders 2004, pp 201–202, 220–221. the purposes of the ICC, see ICC Statute, above n 125, Article 30. 226 See Werle and Jeßberger 2020, marginal nos 924–925. 227 See Jeßberger 2009, p 105. 228 See Ambos 2018, § 7 marginal no 146; Lüders 2004, p 102; Schwarz 2019, p 161; Vesper-Gräske 2016, pp 183–185 (“überschießende Innentendenz”); see also Jeßberger 2009, p 105; Werle and Jeßberger 2020, marginal no 930. 229 See e.g. Jeßberger 2009, pp 105–106. 230 See e.g. ICC, Prosecutor v Omar Hassan Ahmad Al Bashir, Decision on the Prosecution’s Application for a Warrant of Arrest Against Omar Hassan Ahmad Al Bashir, 4 March 2009, ICC02/05-01/09, para 139 (see particularly footnote 154); Krsti´c 2001, above n 134, para 571 (“goal of destroying all or part of a group”). For an overview of the ad hoc tribunals’ jurisprudence, see Lüders 2004, pp 103–105. 231 See Greenawalt 1999; Kreß 2018, marginal no 82; Vest 2014, marginal nos 205–243. 225 For

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the drafting history and the overall construction of the offense.232 Further, there is no danger of an impunity gap: A perpetrator who does not personally act with intent to destroy the group, but knows of an organized attempt to do so, may still be criminally responsible as a participator to the crime.233

4.3.6.2

Destruction of the Group

Pertaining to the destruction of the group, it is subject to discussion whether this refers only to the physical (i.e. biological) destruction of the group. Many commentators have argued that the requirement of intent to destroy is also fulfilled when the perpetrator intends to destroy the social existence of the group.234 This view has also been adopted by German courts,235 but it has been rejected in the international jurisprudence.236 The inclusion of the destruction of the group as a social entity under the specific intent finds support in the wording of the provision, requiring that the perpetrator intend to destroy the group “as such”. This suggests that the intent requirement is not limited to physical destruction, but also includes its effective dissolution. Furthermore, the categorization of “forcibly transferring children”, “imposing measures intended to prevent births”, and “causing mental harm” as genocidal acts indicates that the provision also protects the group’s social existence, because these acts are not directly aimed at physically destroying group members. The explicit limitation of Article II(c) of the Genocide Convention to conditions of life calculated to bring about the group’s physical destruction also supports this interpretation, since it would be superfluous if the provision as a whole only extended to physical destruction. Above all, the inclusion of destroying the social existence of a group under the scope of the offense is in accordance with the purpose of Article II of the Genocide Convention, which is to preserve the existence of protected groups as such for the international community. In view of this purpose, both physical elimination and social dissolution of a group may have the same consequence, i.e. the loss of the group. Thus, the requirement of intent to destroy is not limited to the physical elimination of members of the group, but also includes the dissolution of the group as a social entity.237 232 See

also Paul 2008, pp 253–254. Jeßberger 2009, p 106; Lüders 2004, pp 112–118; Vesper-Gräske 2016, pp 180–182; Werle and Jeßberger 2020, marginal no 926. 234 See Ambos 2013, pp 39–40; Ambos 2018, § 7 marginal no 257; Lüders 2004, pp 49–51; Schwarz 2019, pp 139–140; Werle and Jeßberger 2020, marginal no 931. See also Schabas 2009, pp 270–273. 235 Constitutional Court of Germany, Decision, 12 December 2000, 2 BvR 1290/99, para 22; Federal Court of Germany, Judgment, 30 April 1999, 3 StR 215/98, paras 29–30. See also Werle 2007. 236 See particularly Krsti´ c 2001, above n 134, paras 574–580. See also Jeßberger 2009, pp 107–108; Paul 2008, pp 289–298 with further references to the jurisprudence. See also Croatia v Serbia 2015, above n 81, para 136 (“[…]encompassing only acts carried out with the intent of achieving the physical or biological destruction of the group, in whole or in part.”) 237 See particularly Lüders 2004, pp 49–51; Werle 2007; Werle and Jeßberger 2020, marginal no 931. 233 See

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Pregnancy-Related Acts and Intent to Destroy

As elaborated on above,238 the acts of forced impregnation and forced pregnancy, which are essentially aimed at the creation of new life, at first sight appear to be at odds with an intended destruction of a group. However, the crime of genocide does not require that the perpetrator aim to complete the group’s destruction by committing the relevant act. Instead, it suffices when the perpetrator sees the relevant act as a step towards the group’s physical or social destruction, not by itself but as part of an overall campaign to this end.239 In other words, although it must be proven that the perpetrator committed the relevant act with intent to destroy the group, it is not necessary that he or she intended to bring about the destruction specifically and exclusively with this act. While the acts of forced impregnation and forced pregnancy as such may not be sufficient to destroy a group in whole or in part, they are typically incorporated into a campaign of destruction, which extends beyond these individual acts. Thus, the argument that “forced pregnancy would probably not be the weapon of choice”240 when aiming to destroy a group is not persuasive in the context of the intent requirement. It is not necessary that the relevant act would be the most effective method of destruction; it simply needs to be, in the perpetrator’s mind, one element within a broader strategy. In view of the forced pregnancy provisions in the ICC Statute241 and the definition in Article 7(2)(f), it has been asserted that the requirement of an intent to affect the ethnic composition of any population is incompatible with the intent to destroy as required for the crime of genocide under Article 6 of the ICC Statute.242 While it is correct that the two special intent requirements are not congruent, they are not mutually exclusive either. Indeed, nothing in the ICC Statute suggests that an act affecting the ethnic composition cannot also be a means of genocide. Affecting the ethnic composition of a group may ultimately lead to the dissolution of the group as such. Moreover, a certain type of conduct can be prosecuted as more than one criminal offense, with different requirements. The fact that prosecuting the unlawful confinement of a woman forcibly made pregnant under the umbrella of crimes against humanity or war crimes requires proof of the existence of a special intent does not mean that the same act cannot be covered by the crime of genocide, given that the perpetrator acted with intent to destroy a protected group. The act of killing, for example, may constitute relevant conduct for genocide (Article 6(a) of the ICC Statute), crimes against humanity (e.g. Article 7(1)(a) of the ICC Statute), and/or war crimes (e.g. Article 8(2)(a)(i) of the ICC Statute). Depending on the presence of all other necessary elements of the crimes, particularly the respective contextual element, the act can be prosecuted as one or more of these crimes. This also applies

238 See

this chapter, Sect. 4.2.3. also Lüders 2004, p 94; Werle and Jeßberger 2020, marginal no 925. 240 Markovic 2007, p 456. See also Drake 2012, pp 609–610. 241 ICC Statute, above n 125, Article 7(1)(g), Article 8(2)(b)(xxii) and Article 8(2)(e)(vi). 242 See Akhavan 2005, p 1005; Markovic 2007, p 455. 239 See

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to pregnancy-related acts as conduct underlying genocide, crimes against humanity, and war crimes.

4.3.7 Summary Forced impregnation and forced pregnancy can be prosecuted under the umbrella of the crime of genocide. Particularly, depending on the circumstances of the case, Article II(b) or Article II(d) of the Genocide Convention may be applicable. The legal analysis of forced impregnation and forced pregnancy as acts of genocide should focus not on the birth of children and their potential membership in the mother’s group, but on the violation of the victim’s reproductive autonomy. Under Article II(b) of the Genocide Convention, serious bodily and mental harm can stem directly from the denial of the choice of whether to become or stay pregnant, particularly in situations where there is no access to any reproductive health services. Under Article II(d) of the Genocide Convention, the intended result of birth prevention may be effectuated by way of damaging the victim’s ability to reproduce in the future, or by denying her the ability to reproduce autonomously and in accordance with her own conception of group membership during the period of the forcibly induced or maintained pregnancy.

4.4 Other Forms of Reproductive Violence as Genocide This section examines whether other forms of reproductive violence, namely forced sterilization, forced abortion, and forced contraception, could potentially be prosecuted as acts of genocide under Article II of the Genocide Convention, given that all other required elements of the offense, particularly the intent to destroy a protected group, are present. The following analysis is limited to the potentially relevant provisions of “causing serious bodily or mental harm to members of the group” (Article II(b) of the Genocide Convention) and “imposing measures intended to prevent births within the group” (Article II(d) of the Genocide Convention). Conversely, the genocidal acts of killing members of the group (Article II(a) of the Genocide Convention) and forcibly transferring children (Article II(e) of the Genocide Convention) clearly do not apply to these forms of reproductive violence. In line with the findings of the previous section, the deliberate infliction of conditions calculated to bring about the group’s physical destruction (Article II(c) of the Genocide Convention), i.e. so-called slowdeath measures, could apply only with regard to the interference with the group’s capability to reproduce. However, these cases would be consumed by Article II(d) of the Genocide Convention as the more specific provision.

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4.4.1 Forced Sterilization Forced sterilization covers all forcibly imposed measures which permanently, but not necessarily irreversibly, deprive a person of his or her reproductive capacity. This includes forced castration, i.e. the removal of reproductive organs.

4.4.1.1

Forced Sterilization as an Act of Genocide

Forced sterilization can be considered as causing serious bodily or mental harm under Article II(b) of the Genocide Convention. The removal of a person’s reproductive capacity in itself constitutes serious bodily harm if carried out against or without his or her will, even when the procedure is conducted in accordance with medical standards or was deemed medically necessary. The forced removal of organs (castration) also clearly constitutes serious bodily harm. Depending on the circumstances of the individual case and the person’s reaction to the sterilization, it may also be considered as causing serious mental harm. Furthermore, forced sterilization is the prototype and prime historical example of “measures intended to prevent births” under Article II(d) of the Genocide Convention. Under the category of “restricting births”, forced sterilization was explicitly included in Article I(II)(2)(a) of the 1947 draft of the Genocide Convention prepared by the Secretariat.243 Despite the omission of the individual acts constituting “biological genocide”,244 the provision on “imposing measures intended to prevent births within the group”, which was eventually adopted, clearly covers forced sterilization.245 The Nazis’ commission of forced sterilizations, among other reproductive crimes, heavily influenced the adoption of Article II(d) of the Genocide Convention.246 Several trials conducted after World War II serve as precedent for the prosecution of forced sterilization as an act of genocide.

243 United

Nations Economic and Social Council 1947, pp 6, 26; see also Schabas 2009, p 197. births by: (a) sterilization and/or compulsory abortion; or (b) segregation of the sexes; or (c) obstacles to marriage”, see United Nations Economic and Social Council 1947, p 6, see also the commentary at p 26. 245 See e.g. Akayesu 1998, above n 80, para 507; Rutaganda 1999, above n 136, para 53; Musema 2000, above n 137, para 158; Tolimir 2012, above n 188, para 743; see also Ambos 2013, p 14; De Brouwer 2005, 43–44, 58; Drost 1959, p 87; Jeßberger 2009, p 102; Kreß 2018, marginal no 60; Lüders 2004, p 195; Paul 2008, p 204; Schabas 2016, marginal no 26; Schwarz 2019, p 158; Werle and Jeßberger 2020, marginal no 902. Illustratively, see Robinson 1960, p 64: “the classic action of sterilization”. 246 Schabas 2009, p 198. 244 “Restricting

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Trials Dealing with Forced Sterilization as an Act of Genocide

Prior to the adoption of the Genocide Convention in 1948, evidence of forced sterilization was brought up before the International Military Tribunal in Nuremberg.247 The sterilization experiments on concentration camp inmates formed part of the conduct charged in the indictment.248 During the trial, the prosecution referred to this practice in numerous instances.249 As the crime of genocide had not existed at the time of the trial and was not included in the Nuremberg Charter, forced sterilization was dealt with only in the context of war crimes and crimes against humanity. However, the judgment drew a connection between the sterilization experiments and the “persecution of Jews”,250 i.e. the prime historical example for genocide. Similarly, the prosecution charged forced sterilization under the umbrella of war crimes and crimes against humanity in three of the Subsequent Nuremberg Trials before the United States Military Tribunal. In the Medical Case,251 the forced sterilization experiments were categorized as “murders, brutalities, cruelties, tortures, atrocities, and other inhuman acts” and thus as war crimes and crimes against humanity.252 However, prosecutor Telford Taylor asserted in his opening statement that the purpose of the experiments was to develop “the scientific tools for the planning and practice of genocide”,253 thus explicitly linking the underlying conduct to the term “genocide” even before the adoption of the Convention. Similarly, in the Pohl Case,254 forced sterilization was categorized as a war crime and a crime against

247 See

also Chap. 3, Sect. 3.3.2.1. Military Tribunal, The United States of America, the French Republic, the United Kingdom of Great Britain and Northern Ireland, and the Union of Soviet Socialist Republics v Hermann Wilhelm Göring et al., Indictment, 1945, Trial of the Major War Criminals Before the International Military Tribunal, p 45 (war crimes), p 66 (crimes against humanity, referring to the facts set out in regard of war crimes). 249 International Military Tribunal, The United States of America, the French Republic, the United Kingdom of Great Britain and Northern Ireland, and the Union of Soviet Socialist Republics v Hermann Wilhelm Göring et al., Transcripts, 1945–1946, Trial of the Major War Criminals Before the International Military Tribunal (1947–1949) (IMT Transcripts 1945–1946), vol 6, pp 196, 211– 212; vol 8, pp 136, 309–314; vol 11, p 405; vol 15, p 667; vol 16, pp 45–46; vol 19, pp 498–499; vol 20, pp 272–273, 547–549; vol 22, pp 195, 300. 250 International Military Tribunal, The United States of America, the French Republic, the United Kingdom of Great Britain and Northern Ireland, and the Union of Soviet Socialist Republics v Hermann Wilhelm Göring et al., Judgment, 1 October 1946, Trial of the Major War Criminals Before the International Military Tribunal (IMT Judgment 1946), p 252. 251 See Chap. 3, Sect. 3.3.2.2. 252 United States Military Tribunal Nuernberg, The United States of America v Brandt et al., Transcripts, 1946–1947, Trials of War Criminals Before the Nuernberg Military Tribunals (Medical Case Transcripts 1946–1947), vol 1, p 11 (war crimes), p 16 (crimes against humanity). 253 Ibid., vol 1, p 48. 254 See Chap. 3, Sect. 3.3.2.3. 248 International

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humanity in the indictment;255 however, the judges related the practice of forced sterilization to the “final solution of the Jewish problem”,256 and thus to what would be legally termed as genocide. Furthermore, in the RuSHA case,257 forced sterilization was part of the conduct constituting the charge of “hampering reproduction of enemy nationals” as a crime against humanity and a war crime.258 The indictment asserted that the acts “were carried out as part of a systematic program of genocide”.259 Out of the ten defendants charged for forced sterilization, five were found guilty on this charge.260 In the judgment against Rudolf Höß,261 the commandant of the Auschwitz camp, the judges of the Supreme National Tribunal of Poland also described the sterilization experiments for which he was found guilty as a form of genocide.262 After the adoption of the Genocide Convention in 1948, forced sterilization was charged as “devising measures intended to prevent child-bearing among the Jews” as a “crime against the Jewish people”263 in the trial against Adolf Eichmann.264 This offense is largely congruent with the crime of genocide under the Genocide Convention. In the indictment, these measures were explicitly linked to the goal of “advanc[ing] the ‘final solution of the Jewish problem’”.265 Eichmann, however, was found not guilty with regard to forced sterilizations.266

255 United

States Military Tribunal Nuernberg, The United States of America v Oswald Pohl et al., Transcripts, 1947, Trials of War Criminals Before the Nuernberg Military Tribunals, vol 5, pp 205– 206 (war crimes), p 207 (crimes against humanity, referring to the facts set out in regard of war crimes). 256 United States Military Tribunal Nuernberg, The United States of America v Oswald Pohl et al., Judgment, 3 November 1947, Trials of War Criminals Before the Nuernberg Military Tribunals, vol 5, p 971. 257 See Chap. 3, Sect. 3.3.2.4. 258 United States Military Tribunal Nuernberg, The United States of America v Ulrich Greifelt et al., Transcripts, 1947–1948, Trials of War Criminals Before the Nuernberg Military Tribunals (RuSHA Case Transcripts 1947–1948), vol 4, pp 613–614 (crimes against humanity), pp 617–618 (war crimes, referring to the facts set out in regard of war crimes). 259 Ibid., vol 4, p 609. See also the prosecution’s opening statement at p 689. 260 Ulrich Greifelt, Otto Hofmann, Richard Hildebrandt, Werner Lorenz, and Heinz Brückner, see United States Military Tribunal Nuernberg, The United States of America v Ulrich Greifelt et al., Judgment, 10 March 1948, Trials of War Criminals Before the Nuernberg Military Tribunals (RuSHA Case 1948), vol 5, pp 120–125, 154–164. 261 See Chap. 3, Sect. 3.3.2.5. 262 United Nations War Crimes Commission 1947–1949, vol 7, pp 24–26. See also Schabas 2009, p 198. 263 Nazis and Nazi Collaborators (Punishment) Law 5710-1950, 1 August 1950, Section 1(b)(4); compare: Genocide Convention, above n 1, Article II(d). 264 See Chap. 3, Sect. 3.3.2.6. 265 Hausner 1962, p 124. 266 District Court of Jerusalem, Attorney General v Adolf Eichmann, Judgment, 11 December 1961, Criminal Case no. 40/61 (Eichmann 1961), paras 158, 199.

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4.4.2 Forced Abortion Forced abortion (or: forced termination of pregnancy, forced miscarriage) covers all methods of ending a pregnancy that has already been established, i.e. from the moment of implantation of a fertilized egg until the birth of a child. It is immaterial which method was used to terminate the pregnancy; the termination can be conducted medicinally, surgically, or using physical force.267

4.4.2.1

Forced Abortion as an Act of Genocide

Forced abortion may cause serious bodily or mental harm under Article II(b) of the Genocide Convention. Regarding serious bodily harm, the loss of a pregnancy in itself must be considered as such. Depending on the individual case, the method used to terminate the pregnancy can also cause serious bodily harm, for example when the person is forced to undergo surgery or when physical force is used. Whether the termination of pregnancy caused serious mental harm to the pregnant person must be assessed on a case-by-case basis.268 Just like forced sterilization, forced abortion was one of the historical prototypes of measures intended to prevent births. “Compulsory abortion” was expressly mentioned under the category of “restricting births” included in Article I(II)(2)(a) of the 1947 draft of the Genocide Convention prepared by the Secretariat.269 Under the condition that the perpetrator acted with intent to prevent births, forced abortion can thus also be prosecuted under Article II(d) of the Genocide Convention.270

4.4.2.2

Trials Dealing with Forced Abortion as an Act of Genocide

The Nazis’ commission of forced abortion was the subject of several trials conducted after World War II. During the Nuremberg trial, the prosecution submitted some evidence on forced abortion.271 This related to abortions forcibly performed on women detained in concentration camps, including “medical” experiments, as well as in occupied territories. As explained in the previous subsection with regard to forced sterilization, the alleged conduct was not explicitly charged as genocide, because the trial took place prior to the adoption of the Genocide Convention and the crime of genocide was not part of the Nuremberg Charter. The judgment briefly mentioned 267 See

also Lüders 2004, p 195. the general requirements, see this chapter, Sect. 4.3.2. 269 United Nations Economic and Social Council 1947, pp 6, 26; see also Schabas 2009, p 197. 270 See e.g. Akayesu 1998, above n 80, para 507; Rutaganda 1999, above n 136, para 53; Musema 2000, above n 137, para 158; Tolimir 2012, above n 188, para 743; see also Kreß 2018, marginal no 60; Lüders 2004, p 195; Schabas 2016, marginal no 26; Schwarz 2019, p 158. 271 IMT Transcripts 1945–1946, above n 249, vol 6, pp 170, 212–213, 547; vol 8, pp 133, 310. See also Chap. 3, Sect. 3.3.2.1. 268 On

4.4 Other Forms of Reproductive Violence as Genocide

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that forced labourers in occupied territories were forced to undergo abortions “if the child’s parentage would not meet the racial standards laid down by the SS”.272 This policy of forced abortion on pregnant forced labourers was elaborated on in the RuSHA case before the United States Military Tribunal.273 According to the prosecution, it “was nothing more than another technique in furtherance of the basic crime of genocide”.274 Out of the ten defendants charged for forced abortion, two were found guilty on this charge.275 In the trial before the Polish Supreme National Tribunal, Höß was found guilty for “medical” experiments leading to termination of pregnancy.276 These experiments included both surgical and medicinal means.277 Just like all other “medical” experiments Höß was found guilty for, the judges linked this conduct to genocide.278 The trial against Eichmann279 also concerned forced abortion, which was charged (like forced sterilization) in the form “devising measures intended to prevent childbearing among the Jews” as a “crime against the Jewish people”.280 The indictment accused Eichmann of ordering “the interruption of pregnancy by artificial abortion in all cases and at all stages of pregnancy” in the Terezín camp and the Kovno ghetto.281 The judges found Eichmann responsible for ordering the termination of pregnancies only with regard to Terezín.282

4.4.3 Forced Contraception Forced contraception covers all methods that forcibly prevent a pregnancy but fall short of sterilization. Contraception prevents either fertilization or implantation of a fertilized egg into the uterine wall. Acts amounting to forced contraception would likely not fall under the ambit of Article II(b) of the Genocide Convention. Although the forced administration of some contraceptives, such as the insertion of a hormonal implant or vaccination, interfere with the person’s bodily integrity, it is unlikely that these procedures, at least when conducted according to medical standards, meet the required level of seriousness. 272 IMT

Judgment 1946, above n 250, vol 1, p 260. Case 1948, above n 260, vol 5, pp 109–112. See also Chap. 3, Sect. 3.3.2.4. 274 RuSHA Case Transcripts 1947–1948, above n 258, vol 4, p 687. 275 Otto Hofmann and Richard Hildebrandt, RuSHA Case 1948, above n 260, vol 5, pp 109–112, 154–164. 276 See Chap. 3, Sect. 3.3.2.5. 277 United Nations War Crimes Commission 1947–1949, vol 7, p 15. 278 Ibid., vol 7, pp 24–26. See also Schabas 2009, p 198. 279 See Chap. 3, Sect. 3.3.2.6. 280 Nazis and Nazi Collaborators (Punishment) Law 5710–1950, 1 August 1950, Section 1(b)(4); compare: Genocide Convention, above n 1, Article II(d). 281 Hausner 1962, pp 124–125. 282 Eichmann 1961, above n 266, paras 159, 199, 244(4). See also Schabas 2016, marginal no. 26. 273 RuSHA

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This also applies to the potential physical effects of hormonal contraception as well as potential mental effects on the targeted person. However, forced contraception can be considered as a measure intended to prevent births under Article II(d) of the Genocide Convention. Although there is no precedent for the prosecution of forced contraception under this provision, support for this view comes from several decisions of the ad hoc tribunals, which placed “forced birth control” within a list of examples for birth-preventing measures.283 Dieneke de Vos also asserted that forced contraception would fall under the genocidal act of “measures intended to prevent births”.284 Forced contraception has rarely been documented as a method of genocide or a systematic practice in conflict situation. One exception is the reproductive violence committed against Yazidi women by members of ISIS: According to some reports, women and girls who are victims of enslavement and rape are forced to take birth control in order to prevent pregnancy and maintain availability for rape.285 Furthermore, forced contraception in a genocidal context has been documented with regard to Tamil women in Sri Lanka.286 Regarding its effects, forced contraception is comparable to the acts of forced sterilization and forced abortion, both undoubtedly conduct falling under Article II(d) of the Genocide Convention. By forcing upon a person measures to prevent the occurrence of a pregnancy, births are clearly prevented as well. This interpretation finds further support in the observation that some contraceptives, for example hormonal implants or intrauterine devices (IUDs), have long-term effects, which underlines their similarity to sterilizations.

4.4.4 Summary In summary, other forms of reproductive violence may also be prosecuted as genocidal acts, given that all other requirements of the crime, particularly the special intent, are present. Forced sterilization and forced abortion are the historical prototypes for “measures intended to prevent births” under Article II(d) of the Genocide Convention. In fact, a previous draft of the Convention had explicitly listed these acts as examples of measures restricting births. There is also precedent for the prosecution of these acts as genocide. Due to its similarity to the above-mentioned acts, forced contraception may also be prosecuted as a measure intended to prevent births under the Genocide Convention. While such trials have not been conducted, reports on the systematic commission of this conduct have emerged from recent conflict scenarios. Besides Article II(d), reproductive violence may also fall under “causing serious bodily or mental harm” pursuant to Article II(b) of the Genocide Convention.

283 Akayesu

1998, above n 80, para 507; Rutaganda 1999, above n 136, para 53; Musema 2000, above n 137, para 158; Tolimir 2012, above n 188, para 743. 284 De Vos 2016. 285 See Chap. 3, Sect. 3.2.1.10. 286 See Pasumai Thaayagam Foundation 2015.

4.5 Conclusion

183

4.5 Conclusion Given the subordinate role played by reproductive crimes in modern international criminal law, it is rather remarkable that the 1948 Genocide Convention had already included an explicit reproductive crime, “imposing measures intended to prevent births within the group”. While this crime was primarily aimed at encompassing forms of negative reproductive targeting, meaning crimes such as forced sterilization and forced abortion, which directly obstruct reproduction, this chapter has shown that the crime of genocide also applies to positive reproductive violence such as forced impregnation and forced pregnancy. In this regard, the analysis should be conducted with a view to the underlying violation of the individual victim’s reproductive autonomy. Such an approach not only highlights the dualistic individual/collectivist nature of international crimes, but also avoids further marginalization of the children potentially born as a result of such crimes by way of perpetuating discriminatory conceptualizations of ethnicity. The third and fourth section of this chapter have shown that Article II(b) and Article II(d) of the Genocide Convention may be applied to various manifestations of reproductive violence, including but not limited to forced impregnation, forced pregnancy, forced sterilization, forced abortion, and forced contraception.

References Adams A (2013) Der Tatbestand der Vergewaltigung im Völkerstrafrecht. Duncker & Humblot, Berlin Akhavan P (2005) The Crime of Genocide in the ICTR Jurisprudence. Journal of International Criminal Justice 3:989–1006 Allen B (1996) Rape Warfare: The Hidden Genocide in Bosnia-Herzegovina and Croatia. University of Minnesota Press, Minneapolis/London Ambos K (2013) Treatise on International Criminal Law, vol 2: The Crimes and Sentencing. Oxford University Press, Oxford Ambos K (2018) Internationales Strafrecht: Strafanwendungsrecht, Völkerstrafrecht, Europäisches Strafrecht, Rechtshilfe, 5th edn. C.H. Beck, Munich Ambos K, Wirth S (2001) Genocide and War Crimes in the Former Yugoslavia Before German Criminal Courts. In: Fischer H, Kreß C, Lüder SR (eds) International and National Prosecution of Crimes Under International Law: Current Developments. Arno Spitz GmbH, Berlin, pp 769–797 Askin KD (1997) War Crimes Against Women: Prosecution in International War Crimes Tribunals. Martinus Nijhoff, The Hague Bassiouni MC, Manikas P (1996) The Law of the International Criminal Tribunal for the Former Yugoslavia. Transnational Publishers, Irvington-on-Hudson, N.Y. Bassiouni MC, McCormick M (1996) Sexual Violence: An Invisible Weapon of War in the Former Yugoslavia. DePaul University, Chicago Brownmiller S (1975) Against Our Will: Men, Women and Rape. Simon & Schuster, New York Brownmiller S (1994) Making Female Bodies the Battlefield. In: Stiglmayer A (ed) Mass Rape: The War Against Women in Bosnia-Herzegovina. University of Nebraska Press, Lincoln, pp 180–182 Buehler C (2002) War Crimes, Crimes Against Humanity and Genocide: The Crime of Forced Pregnancy in the Nascent System of Supranational Criminal Law. Nemesis 18:158–167

184

4 Reproductive Violence and Genocide

Campanaro J (2001) Women, War, and International Law: The Historical Treatment of GenderBased War Crimes. The Georgetown Law Journal 89:2557–2592 Card C (2008) The Paradox of Genocidal Rape Aimed at Enforced Pregnancy. The Southern Journal of Philosophy 46(S1):176–189 Carpenter RC (2000a) Forced Maternity, Children’s Rights and the Genocide Convention: A Theoretical Analysis. Journal of Genocide Research 2:213–244 Carpenter RC (2000b) Surfacing Children: Limitations of Genocidal Rape Discourse. Human Rights Quarterly 22:428–477 Carpenter RC (2010) Forgetting Children Born of War: Setting the Human Rights Agenda in Bosnia and Beyond. Columbia University Press, New York Commission of Experts (1994) Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), Annex to UN Doc. S/1994/674 Copelon R (1994) Surfacing Gender: Re-Engraving Crimes Against Women in Humanitarian Law. Hastings Women’s Law Journal 5:243–266 Crenshaw K (1989) Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics. University of Chicago Legal Forum 1989:139–167 Cudd AE (2008) Rape and Enforced Pregnancy as Femicide: Comments on Claudia Card’s “The Paradox of Genocidal Rape Aimed at Enforced Pregnancy”. The Southern Journal of Philosophy 46(S1):190–199 D’Costa B, Hossain S (2010) Redress for Sexual Violence Before the International Crimes Tribunal in Bangladesh: Lessons From History, and Hopes for the Future. Criminal Law Forum 21:331–359 De Brouwer A-MLM (2005) Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR. Intersentia, Antwerp/Tilburg De Vos D (2016) Can the ICC Prosecute Forced Contraception? https://me.eui.eu/dieneke-de-vos/ blog/can-the-icc-prosecute-forced-contraception/. Accessed 24 October 2020 Drake AM (2012) Aimed at Protecting Ethnic Groups or Women? A Look at Forced Pregnancy Under the Rome Statute. William & Mary Journal of Women and the Law 18:595–623 Drost PN (1959) The Crime of State II: Genocide. A.W. Sythoff, Leyden EC Investigative Mission Into the Treatment of Treatment of Muslim Women in the Former Yugoslavia (1993) Report to EC Foreign Ministers (Warburton Mission II Report). www.womenaid.org/press/info/humanrights/warburtonfull.htm. Accessed 24 October 2020 Engle K (2005) Feminism and its (Dis)Contents: Criminalizing Wartime Rape in Bosnia and Herzegovina. The American Journal of International Law 99:778–816 Epik A (2018) Die Verbrechen des “Islamischen Staates” gegen die Jesid*innen. Kritische Justiz 51:33–44 Fein H (1999) Genocide and Gender: The Uses of Women and Group Destiny. Journal of Genocide Research 1:43–63 Fisher SK (1996) Occupation of the Womb: Forced Impregnation as Genocide. Duke Law Journal 46:91–133 Goldstein AT (1993) Recognizing Forced Impregnation as a War Crime Under International Law: A Special Report of the International Program. The Center for Reproductive Law & Policy, New York Green J, Copelon R, Cotter P, Stephens B (1994) Affecting the Rules for the Prosecution of Rape and Other Gender-Based Violence Before the International Criminal Tribunal for the Former Yugoslavia: A Feminist Proposal and Critique. Hastings Women’s Law Journal 5:171–241 Greenawalt AKA (1999) Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation. Columbia Law Review 99:2259–2294 Greve K (2008) Vergewaltigung als Völkermord: Aufklärung sexueller Gewalt gegen Frauen vor Internationalen Strafgerichten. Nomos, Baden-Baden Grey R (2017) The ICC’s First “Forced Pregnancy” Case in Historical Perspective. Journal of International Criminal Justice 15:905–930

References

185

Harbour G (2016) International Concern Regarding Conflict-Related Sexual Violence in the LeadUp to the ICTY’s Establishment. In: Brammertz S, Jarvis MJ (eds) Prosecuting Conflict-Related Sexual Violence at the ICTY. Oxford University Press, Oxford, pp 19–32 Hausner G (1962) Text of the Indictment Against Eichmann: Indictment Presented by Attorney General. The American Jewish Year Book 63:120–131 Healey SA (1995–1996) Prosecuting Rape Under the Statute of the War Crimes Tribunal for the Former Yugoslavia. Brooklyn Journal of International Law 21:327–383 Helsinki Watch (1993) War Crimes in Bosnia-Hercegovina, vol II. Human Rights Watch, New York/London International Commission of Inquiry on Darfur (2005) Report of the International Commission of Inquiry on Darfur to the Secretary-General: Pursuant to Security Council Resolution 1564 (2004) of 18 September 2004, UN Doc. S/2005/60 International Law Commission (1996) Draft Code of Crimes Against the Peace and Security of Mankind, Yearbook of the International Law Commission 1996(II/2):17–56 Jeßberger F (2009) The Definition and the Elements of the Crime of Genocide. In: Gaeta P (ed) The UN Genocide Convention: A Commentary. Oxford University Press, Oxford, pp 87–111 Karagiannakis M (1999) Case Analysis: The Definition of Rape and its Characterization as an Act of Genocide: A Review of the Jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, Leiden Journal of International Law 12:479–490 Kreß C (2018) § 6 Völkerstrafgesetzbuch. In: Joecks W, Miebach K (eds) Münchener Kommentar zum Strafgesetzbuch: Band 8: Nebenstrafrecht III, Völkerstrafgesetzbuch, 3rd edn. C.H. Beck, Munich Leatherman JL (2011) Sexual Violence and Armed Conflict. Polity, Cambridge Lüders B (2004) Die Strafbarkeit von Völkermord nach dem Römischen Statut für den Internationalen Strafgerichtshof. Berliner Wissenschaftsverlag, Berlin MacKinnon CA (1994a) Rape, Genocide, and Women’s Human Rights. Harvard Women’s Law Journal 17:5–16 MacKinnon CA (1994b) Turning Rape Into Pornography: Postmodern Genocide. In: Stiglmayer A (ed) Mass Rape: The War Against Women in Bosnia-Herzegovina. University of Nebraska Press, Lincoln, pp 73–81 MacKinnon CA (2005) Genocide’s Sexuality. In: Williams MS, Macedo S (eds) Political Exclusion and Domination. New York University Press, New York/London, pp 313–356 Marino A (2009) Bosnia v. Serbia and the Status of Rape as Genocide Under International Law. Boston University International Law Journal 27:205–229 Markovic M (2007) Vessels of Reproduction: Forced Pregnancy and the ICC. Michigan State Journal of International Law 16:439–458 Martin F (2009) The Notion of “Protected Group” in the Genocide Convention and its Application. In: Gaeta P (ed) The UN Genocide Convention: A Commentary. Oxford University Press, Oxford, pp 112–127 Neenan J (2018) The Role of the ICC in Protecting the Rights of Children Born of Rape in War. EJIL:Talk! https://www.ejiltalk.org/the-role-of-the-icc-in-protecting-the-rights-of-chi ldren-born-of-rape-in-war/. Accessed 24 October 2020 Pasumai Thaayagam Foundation (2015) Sexual and Reproductive Rights Violations of Tamil Women in the Island of Sri Lanka, UN Doc. A/HRC/28/NGO/94 Paul A (2008) Kritische Analyse und Reformvorschlag zu Art. II Genozidkonvention. Springer, Berlin/Heidelberg/New York Preparatory Commission for the International Criminal Court (1999) Proposal Submitted by the United States of America: Draft Elements of Crimes, UN Doc. PCNICC/1999/DP.4 Quigley J (2013) The Genocide Convention: An International Law Analysis. Ashgate Publishing Limited, Aldershot Robinson N (1960) The Genocide Convention: A Commentary. Institute of Jewish Affairs, New York

186

4 Reproductive Violence and Genocide

Russell-Brown SL (2003) Rape as an Act of Genocide, Berkeley Journal of International Law 21:350–374 Salzmann TA (1998) Rape Camps as a Means of Ethnic Cleansing: Religious, Cultural, and Ethical Responses to Rape Victims in the Former Yugoslavia, Human Rights Quarterly 20:348–378 Schabas W (2009) Genocide in International Law: The Crime of Crimes, 2nd edn. Cambridge University Press, Cambridge Schabas WA (2016) Article 6. In: Triffterer O, Ambos K (eds) Rome Statute of the International Criminal Court: A Commentary, 3rd edn. C.H. Beck, Munich Schwarz A (2019) Das völkerrechtliche Sexualstrafrecht: Sexualisierte und geschlechtsbezogene Gewalt vor dem Internationalen Strafgerichtshof. Duncker & Humblot, Berlin Seto D (2013) No Place for a War Baby: The Global Politics of Children Born of Wartime Sexual Violence. Ashgate, Farnham/Burlington Sharlach L (2000) Rape as Genocide: Bangladesh, the Former Yugoslavia, and Rwanda. New Political Science 22:89–102 Short JMH (2003) Sexual Violence as Genocide: The Developing Law of the International Criminal Tribunals and the International Criminal Court. Michigan Journal of Race & Law 8:503–527 Soh SEJ (2006) Forced Pregnancy: Codification in the Rome Statute and its Prospect as Implicit Genocide. New Zealand Journal of Public and International Law 4:311–337 Special Rapporteur of the Commission on Human Rights (1993) Report on the Situation of Human Rights in the Territory of the Former Yugoslavia, Pursuant to Commission Resolution 1992/S-1/1 of 14 August 1992, UN Doc. E/CN.4/1993/50 Stiglmayer A (ed) (1993) Massenvergewaltigung: Krieg gegen die Frauen. Kore, Freiburg Stiglmayer A (ed) (1994a) Mass Rape: The War Against Women in Bosnia-Herzegovina. University of Nebraska Press, Lincoln Stiglmayer A (1994b) The Rapes in Bosnia-Herzegovina. In: Stiglmayer A (ed) Mass Rape: The War Against Women in Bosnia-Herzegovina. University of Nebraska Press, Lincoln, pp 82–169 Takai A (2011) Rape and Forced Pregnancy as Genocide Before the Bangladesh Tribunal. Temple International and Comparative Law Journal 25:393–422 United Nations Economic and Social Council (1947) Draft Convention on the Crime of Genocide, UN Doc. E/447 United Nations Security Council (2019) Conflict-Related Sexual Violence: Report of the SecretaryGeneral, UN Doc. S/2019/280 United Nations War Crimes Commission (1947–1949) Law Reports of Trials of War Criminals. His Majesty’s Stationery Office, London Vesper-Gräske M (2016) Zur Hierarchie der Völkerrechtsverbrechen nach dem Statut des Internationalen Strafgerichtshofs. Nomos, Baden-Baden Vest H (2014) Art. 264. In: Vest H, Ziegler AR, Lindenmann J, Wehrenberg S (eds) Die völkerstrafrechtlichen Bestimmungen des StGB: Kommentar zu Art. 101, 259, 260bis und 264–264n. Dike/Nomos, Zürich/Baden-Baden Weitsman P (2007) Children Born of War and the Politics of Identity. In: Carpenter RC (ed) Born of War: Protecting Children of Sexual Violence Survivors in Conflict Zones. Kumarian Press, Bloomfield, pp 110–127 Werle G (2007) Die deutsche Rechtsprechung zur Zerstörungsabsicht beim Völkermord und die Europäische Menschenrechtskonvention. In: Hettinger M, Zopfs J, Hillenkamp T, Köhler M, Rath J, Streng F, Wolter J (eds) Festschrift für Wilfried Küper zum 70. Geburtstag. Müller, Heidelberg, pp 675–690 Werle G, Jeßberger F (2020) Völkerstrafrecht, 5th edn. Mohr Siebeck, Tübingen Wing AK, Merchán S (1993) Rape, Ethnicity, and Culture: Spirit Injury From Bosnia to Black America. Columbia Human Rights Law Review 25:1–48 Zahar A, Sluiter G (2008) International Criminal Law: A Critical Introduction. Oxford University Press, Oxford Zawati HM (2014) Fair Labelling and the Dilemma of Prosecuting Gender-Based Crimes at the International Criminal Tribunals. Oxford University Press, Oxford

Chapter 5

Forced Pregnancy as a Crime Against Humanity and a War Crime

Contents 5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Historical and Conceptual Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.1 Preliminary Remarks on Terminology Regarding Pregnancy-Related Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.2 The Impetus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.3 Forced Pregnancy in the Human Rights Discourse . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 The Negotiations for the Statute of the International Criminal Court . . . . . . . . . . . . . . . . 5.3.1 Early Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.2 Preparatory Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.3 Rome Conference 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.4 Preparatory Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.5 Analysis and Evaluation of the Drafting Process . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4 Forced Pregnancy as a Separate Crime Under International Law . . . . . . . . . . . . . . . . . . . 5.4.1 Implicit Prosecution as Other Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.2 Necessity of Separate Crimes? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.3 Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5 The Definition of Forced Pregnancy in the ICC Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.1 Protected Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.2 Preliminary Remarks on the Elements of the Crime . . . . . . . . . . . . . . . . . . . . . . . 5.5.3 Woman Forcibly Made Pregnant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.4 Unlawful Confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.5 General Intent, Article 30 of the ICC Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.6 Special Intent, Article 7(2)(f) of the ICC Statute . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.7 No Effect on National Laws Relating to Pregnancy . . . . . . . . . . . . . . . . . . . . . . . . 5.5.8 Proposals De Lege Ferenda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.6 Forced Pregnancy Beyond the ICC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.6.1 Forced Pregnancy in Other Jurisdictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.6.2 Forced Pregnancy as a Crime Under Customary International Law . . . . . . . . . . . 5.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

188 189 189 191 194 196 196 197 200 205 207 210 210 212 216 220 220 224 225 231 237 238 244 251 255 255 257 259 260

Abstract 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. The inclusion of the crime was the result of controversial negotiations, and its definition is complex and restrictive. This chapter details the negotiating history of the crime and proposes an interpretation of its elements, which is guided by the protected value of reproductive autonomy and informed by the international © t.m.c. asser press and the author 2021 T. Altunjan, Reproductive Violence and International Criminal Law, International Criminal Justice Series 29, https://doi.org/10.1007/978-94-6265-451-8_5

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human rights framework pertaining to the protection of reproductive human rights. It argues that an explicit criminalization of different manifestations of gender-based and particularly reproductive violence is important and necessary. This is because such an approach surfaces the unique harm suffered by the victims and ensures that the underlying conduct is conceptualized as a criminal act deserving investigation and prosecution as a crime under international law. Keywords Forced pregnancy · Forced impregnation · Yugoslavia · Rome Conference · Negotiations · Reproductive autonomy · Reproductive rights · ICC Statute · Actus reus · Mens rea · Unique harm · Explicit criminalization

5.1 Introduction The crime of forced pregnancy is an innovation of the ICC Statute. It was charged for the first time in the trial against former LRA commander Dominic Ongwen, which concluded in February 2021.1 The charges of forced pregnancy (both as a war crime and a crime against humanity) referred to two victim-witnesses, identified as P-0101 and P-0214, who were abducted and forced by Ongwen to become his “wives”. Both women were then compelled to perform domestic duties and frequently subjected to rapes. They were held in confinement, which continued during the time of their pregnancies.2 At trial, several witnesses further reported on the policy of forced pregnancy committed against “forced wives”. For example, witness P-0235 stated that “[becoming pregnant in the bush] wasn’t my choice”.3 Similarly, witness P-0045 explained that “you cannot refuse or you cannot determine pregnancy because there was no contraception, there was no family planning, […] you could not prevent pregnancies.”4 In remarkable clarity, the Prosecutor highlighted during the Ongwen trial that the value protected by the crime of forced pregnancy is reproductive autonomy.5 This was later explicitly confirmed in the trial judgment.6

1 ICC,

Prosecutor v Dominic Ongwen, Judgment, 4 February 2021, ICC-02/04-01/15 (Ongwen 2021), paras 2717–2729, 3056–3062; ICC, Prosecutor v Dominic Ongwen, Decision on the Confirmation of Charges, 23 March 2016, ICC-02/04-01/15 (Ongwen 2016), paras 96–101, counts 58–59. See generally Grey 2019, pp 171–178. 2 Ongwen 2021, above n 1, paras 205–208; Ongwen 2016, above n 1, paras 111–115. Charges with respect to a third victim-witness, P-198, were originally brought but later withdrawn by the prosecution, see para 128. 3 Cited after ICC, Prosecutor v Dominic Ongwen, Common Legal Representative of Victims’ Closing Brief, 28 February 2020, ICC-02/04-01/15, para 102. See Ongwen 2021, above n 1, para 2070. 4 ICC, Prosecutor v Ongwen, Transcript, 13 September 2017, ICC-02/04-01/15-T-104-Red2-ENG WT, p 16. 5 ICC, Prosecutor v Dominic Ongwen, Prosecution’s Pre-Trial Brief, 6 September 2016, ICC-02/0401/15 (Ongwen Prosecution’s Pre-Trial Brief 2016), para 512. 6 Ongwen 2021, above n 1, para 2717.

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The Ongwen case marks the first explicit prosecution and conviction of a reproductive crime in the recent history of international criminal law. While some international trials after World War II did include charges or at least evidence of reproductive violence, most importantly enforced sterilization and forced abortion,7 such crimes have never been prosecuted without a nexus to genocide or ethnicity-related scenarios. A shift in this paradigm occurred against the background of reports from the former Yugoslavia, which indicated a deliberate strategy of impregnating women and detaining them until they were unable to terminate their pregnancies, and thus forcing them to give birth to children presumed to be of the perpetrator’s ethnicity.8 At the Rome Conference, women’s rights organizations and activists succeeded in including the crime of forced pregnancy in the ICC Statute and, most significantly, expanding it beyond ethnicity-related contexts.9 This chapter first explores the historical background which led to the criminalization of forced pregnancy in the ICC Statute. It then details the negotiations process and portrays the opposing views brought forward with regard to the crime of forced pregnancy. Against the background of the debate on whether a separate crime would be necessary, the subsequent section explores the benefits of explicit criminalization and assesses the necessity of separate pregnancy-related crimes under international law. The analysis then turns to the elements of the crime of forced pregnancy under the ICC Statute, before briefly addressing the extent to which the crime is recognized in other jurisdictions and in customary international law.

5.2 Historical and Conceptual Background 5.2.1 Preliminary Remarks on Terminology Regarding Pregnancy-Related Crimes The terminology on pregnancy-related crimes is remarkably imprecise.10 Various terms have been used interchangeably, both before and after the adoption of the ICC Statute, to refer to a variety of forcible acts from (attempted or successful) conception to actual childbirth and maternity. The term “forced impregnation” was used most prominently by Anne Tierney Goldstein in her report “Recognizing Forced Impregnation as a War Crime Under International Law”. Although Goldstein defined “forced impregnation” as “an 7 Most notably, see United States Military Tribunal Nuernberg, The United States of America v Ulrich Greifelt et al., Judgment, 10 March 1948, Trials of War Criminals Before the Nuernberg Military Tribunals. 8 Commission of Experts 1994, para 248. 9 See also Grey 2017, pp 921–922; Koenig and Askin 2000, p 15. 10 See Chap. 1, Sect. 1.3.3.1.

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impregnation that results from an assault or series of assaults on a woman perpetrated with the intent that she become pregnant”,11 she appeared to conflate this with being “forced to carry a rapist’s baby to term”12 later in the report.13 The term “forced (or forcible) impregnation” also commonly appeared in reports on the atrocities committed in the former Yugoslavia.14 Other authors preferred the term “(en)forced pregnancy”,15 though seemingly without referring to a different type of conduct. In fact, many authors used various terms without clarifying their scope and possible distinctions at all.16 Rhonda Copelon, for example, referred to both “forced impregnation”17 and “forced pregnancy”18 in her influential contribution on “Surfacing Gender”. Similarly, Beverly Allen used the terms “forced impregnation”19 and “enforced pregnancy”20 alternatively. Catharine MacKinnon employed four different terms, which she did not define: “forced pregnancy”,21 “forced reproduction”,22 “forced childbearing”,23 and “forced motherhood”.24 Brook Sari Moshan explicitly distinguished “forced pregnancy” from “forced motherhood”, using the latter term to describe the birth of a child conceived through rape.25 Similarly, though with less terminological clarity, Amy E. Ray distinguished between “forced pregnancy” and “forced impregnation” on the one hand, and “forced motherhood” and “forced maternity” on the other hand.26 “Forced maternity” appears to be the most widely used term in the literature, particularly after the adoption of the ICC Statute, to describe the actual birth of a child resulting from forced impregnation.27 However, both Michael Cottier and Sabine Mzee as well as Kai Ambos define the term “forced maternity” as “being forced to carry the pregnancy to term” without explicitly referring to the event of birth; in contrast, they define “forced impregnation” as a “pregnancy as

11 Goldstein

1993, p 4. p 17. 13 See also Carpenter 2000b, pp 446–447. 14 See Bassiouni and McCormick 1996, pp 18–20; Bresnick 1995, pp 124–127; Healey 1995–1996, p 370; Helsinki Watch 1993, p 21. See also Fisher 1996. 15 See Chinkin 1994, p 326; Tompkins 1995, pp 866, 877. 16 See also Weiß 2001, p 136. 17 Copelon 1994, pp 247, 263. 18 Ibid., pp 248, 252, 256, 263. 19 Allen 1996, p 97. 20 See e.g. ibid., pp 97, 138–140. 21 MacKinnon 1993, p 73; MacKinnon 1994, p 16. 22 MacKinnon 1994, p 13. 23 MacKinnon 1993, p 76. See also Durham and O’Byrne 2010, p 44; Toy-Cronin 2010, p 585. 24 MacKinnon 1993, pp 62, 78. See also Eriksson 2000, p 322; Rubio-Marín 2012, p 75. 25 Moshan 1998, pp 163–164. 26 Ray 1997, pp 808–810. 27 See e.g. Askin 1997, pp 402–403; Carpenter 2000a; D’Costa and Hossain 2010, pp 343–345; Eriksson 2000, p 420; Green et al. 1994, pp 185–189; Rimmer 2010, p 109; Women in the Law Project 1994, pp 95, 97. 12 Ibid.,

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a result of rape or some involuntary medical procedure”.28 Somewhat confusingly, these authors argue that the crime of forced pregnancy encompasses both forced impregnation and forced maternity.29 The UN Committee on the Elimination of Discrimination against Women referred not only to “forced pregnancy”, but also to “forced continuation of pregnancy” as forms of gender-based violence in its General Recommendation No. 35.30 Unfortunately, the Committee did not distinguish between the two concepts, and their relation to each other thus remains unclear. A further term that has appeared in this context is “enforced procreation”. In the case against Nuon Chea and others (Case 002/2), the Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia referred to this term to describe a policy of marriage regulation with the objective to increase the population under the charge of other inhumane acts.31 The investigating judges clarified neither the scope of the term nor its relation to other concepts used in literature or international practice. The lack of clarity regarding terminology has somewhat complicated the negotiations for the ICC Statute and is reflected in the unsettled scope of the crime which was eventually incorporated into the Statute. This will be further examined in the following sections.

5.2.2 The Impetus 5.2.2.1

Commission of Forced Pregnancy in the Former Yugoslavia

The main reason for the criminalization of forced pregnancy under the Rome Statute of the International Criminal Court is the timely coincidence with the conflicts in the former Yugoslavia as well as the activities of the International Criminal Tribunal for the Former Yugoslavia. As mentioned above, reports indicated that there was a deliberate strategy of impregnating women and forcing them to bear children during these conflicts, usually with a link to a broader genocidal strategy.32 These reports received a lot of attention during the negotiations for the ICC. However, there was also an awareness among academics and other stakeholders that pregnancy-related acts were not necessarily limited to genocidal contexts or situations of “ethnic cleansing”. Furthermore, some scholars opposed a limitation of the discourse on rape and forced 28 Cottier

and Mzee 2016, marginal no 720. Similarly Ambos 2013b, p 102. 2013b, p 102; Cottier and Mzee 2016, marginal no 720. 30 United Nations Committee on the Elimination of Discrimination Against Women 2017b, para 18. 31 Extraordinary Chambers in the Courts of Cambodia, Prosecutor v Nuon Chea, Ieng Sary, Khieu Samphan and Ieng Thirith, Closing Order, 15 September 2010, 002/19-09-2007-ECCC-OCIJ (Nuon et al. Closing Order 2010), para 1445. In the judgment, the term “enforced procreation” appears only in a summary of the Closing Order, Extraordinary Chambers in the Courts of Cambodia, Prosecutor v Nuon Chea and Khieu Samphan, Judgment, 16 November 2018, 002/19-09-2007/ECCC/TC). See also Chap. 3, Sect. 3.3.4.4. 32 See Chap. 4, Sect. 4.2.1. 29 Ambos

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pregnancy to acts of genocide, because they feared that this would render the gender dimension of these acts largely invisible.33 Perhaps the most influential contribution to the discourse on the criminalization of pregnancy-related crimes was Anne Tierney Goldstein’s report “Recognizing Forced Impregnation as a War Crime Under International Law”, which was compiled for The Center for Reproductive Law & Policy in 1993. This report referred to evidence from Yugoslavia and explored ways in which the respective acts could be prosecuted under the existing international legal framework.34 Goldstein argued that forced impregnation could be a form of torture, a violation of “family honour and rights” under Article 46 of the Hague Regulations of 1907 as well as Article 27 of the fourth Geneva Convention, a means of genocide, and a form of the crime against humanity of enslavement. Around the same time, influential feminist legal scholar Rhonda Copelon pointed out that “[f]orced pregnancy must be seen as a separate offense”.35 Copelon and some of her colleagues also submitted a “feminist proposal and critique” to the judges of the newly-established International Criminal Tribunal for the Former Yugoslavia in 1994, in which they called for the prosecution of forced pregnancy under various provisions of the Statute.36 In the previous year, the American Bar Association had already recommended that the provision on rape in the ICTY Statute should be expanded to include forced pregnancy.37 Building upon these groundbreaking pieces, several other authors called for explicit recognition and prosecution of pregnancy-related crimes during the mid1990s. Siobhán Fisher, while focusing mainly on forced impregnation as a form of genocide, stipulated that “forced impregnation is a crime distinct from the crime of rape” and that it interfered with “autonomous reproduction”.38 Beverly Allen suggested that genocidal rape aimed at enforced pregnancy should be conceptualized and prosecuted as a form of “biological warfare”.39 Most comprehensively, Kelly Askin developed definitions for the proposed crimes of “forced impregnation” and “forced maternity”, including attempts. She placed these crimes in a separate category of “reproductive crimes” independent of war crimes, crimes against humanity, and genocide within her elaborated list of proposed “sex crimes against the person” in 1997.40

33 On

the “genocidal rape debate”, see Chap. 4, Sect. 4.2.2.1. 1993. 35 Copelon 1994, p 256. 36 Green et al. 1994, pp 186–189. See similarly Women in the Law Project 1994, p 97. 37 American Bar Association, Task Force on War Crimes in Former Yugoslavia 1993, p 15. 38 Fisher 1996, p 93. 39 Allen 1996, pp 123–132. 40 Askin 1997, pp 398–399, 402–403. See Chap. 3, Sect. 3.3.5.3. 34 Goldstein

5.2 Historical and Conceptual Background

5.2.2.2

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Practical Background: Forced Pregnancy in Non-genocidal Contexts

The debate on the explicit recognition of forced pregnancy (and forced impregnation) often remained limited to the crime of genocide. Nevertheless, such acts are not exclusively committed in genocidal contexts, thus rendering the debate on their categorization as war crimes and crimes against humanity practically relevant. Perhaps the most likely setting in which the act of forced pregnancy may occur is in connection with forced marriage and sexual slavery. In situations where women are held as “forced wives”, they are typically raped on a frequent basis and expected to bear children, among other tasks, which according to traditional gender stereotypes are to be fulfilled by women. An example is the situation in northern Uganda, which is currently before the ICC. In its judgment against Dominic Ongwen, Trial Chamber IX found that fighters of the Lord’s Resistance Army systematically abducted and then confined women and girls. They were subjected to frequent rapes during the confinement.41 According to the prosecution’s opening statement in the trial against Ongwen, “[m]any of [the forced wives] became pregnant without any choice in the matter, and some gave birth to numerous children who were themselves then ingested into the ranks of the LRA.”42 In this regard, the commission of forced pregnancy followed the purpose of creating a new generation of fighters. Similarly, the Revolutionary United Front abducted women and girls during the civil war in Sierra Leone and forced them into “marriages”. Many of these women became pregnant as a result of rape and bore children during the confinement.43 In both situations, the victimized women and girls as well as the children born as a result have faced stigmatization and ostracization.44 More recently, the systematic abduction and ensuing sexual abuse of girls by the Boko Haram group in northeastern Nigeria caught international attention.45 According to a UN report, many of the captured girls have become pregnant

41 See

Chap. 3, Sect. 3.2.1.9. Prosecutor v Ongwen, Transcript, 6 December 2016, ICC-02/04-01/15-T-26-ENG ET WT,

42 ICC,

p 33. 43 See

Chap. 3, Sect. 3.2.1.9. Chap. 3, Sect. 3.2.2. 45 See United Nations Human Rights Council 2015, paras 30–43. 44 See

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and have born children in captivity.46 Again, these women and girls as well as their children are facing particular stigmatization.47 A further scenario in which forced pregnancy may occur in a non-genocidal manner is exemplified by the acts committed by the Khmer Rouge regime in Cambodia. In order to increase the birth rate and to produce labourers, the regime arranged forced marriages. The “couples” where then reportedly forced to have sexual intercourse at a time when the woman was believed to be fertile, which resulted in a high number of pregnancies. The victims lived in permanent confinement and had no access to reproductive health services.48 In this context, pregnancy-related acts were committed for the purpose of increasing the population. Lastly, non-genocidal acts of forced pregnancy may be related to human trafficking. For example, reports have recently emerged on so-called “baby factories” in Nigeria, where women are held in captivity. These women are either already pregnant when they are abducted, or they are raped and impregnated in these facilities. After giving birth, the children are reportedly “sold” into human trafficking.49

5.2.3 Forced Pregnancy in the Human Rights Discourse Recognition of forced pregnancy as a violation of international law originated from the human rights discourse,50 which, as Grey observed, “spill[ed] over into international criminal law.”51 The starting point and first international instrument to use the term “forced pregnancy” was the Vienna Declaration and Programme of Action, which was adopted at the United Nations World Conference on Human Rights in Vienna in June 1993. It explicitly names forced pregnancy as a violation of women’s human rights in situations of armed conflict as well as of international humanitarian law. Further, it states that this act “requires a particularly effective response.”52

46 Ibid., paras 31, 38. See also Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict, UN Special Representative of the Secretary-General on Sexual Violence in Conflict Zainab Hawa Bangura Condemns the Use of Sexual Violence as a Tactic of War and Terror by Boko Haram, 26 May 2015, https://www.un.org/sexualviolenceinconflict/ press-release/un-special-representative-of-the-secretary-general-on-sexual-violence-in-conflictzainab-hawa-bangura-condemns-the-use-of-sexual-violence-as-a-tactic-of-war-and-terror-byboko-haram/ (accessed 24 October 2020), referring to forced impregnation. 47 See United Nations Human Rights Council 2015, para 43. 48 See Chap. 3, Sect. 3.2.1.4. 49 See Sanni and Ukomadu, Nigerian Police Free 19 Women and Girls From Lagos “Baby Factory”: Statement, Reuters, 30 September 2019, https://www.reuters.com/article/us-nigeria-captives-bab ies/nigerian-police-free-19-women-and-girls-from-lagos-baby-factory-statement-idUSKBN1W F205 (accessed 24 October 2020). 50 See Chap. 3, Sect. 3.4. 51 Grey forthcoming, p 12. 52 Vienna Declaration and Programme of Action, 25 June 1993, II para 38.

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Building upon these statements, the Beijing Declaration and Platform for Action, which was adopted in 1995 at the Fourth World Conference on Women, also states that forced pregnancy is a grave violation of women’s human rights.53 In deviation from the Vienna Declaration and Programme of Action, it is asserted that forced pregnancy, among other conflict-related human rights violations of women, occurs “in particular under policies of ethnic cleansing.”54 This addition was ostensibly made against the background of the reports of violence against women in Yugoslavia, which emerged around the same time. The Platform for Action also recommends that governments as well as regional intergovernmental institutions ensure that international prosecutors, judges, and other officials of international courts receive training in handling cases involving, among others, rape and forced pregnancy.55 Five years after the Beijing Declaration and Platform for Action, a follow-up declaration was adopted, which concerned the review of the original declaration’s implementation. It states that violence against women, including forced pregnancy, has increased in situation of armed conflict.56 Further, it recommends that governments as well as regional and international organizations take measures to increase awareness of the crimes listed in the ICC Statute, explicitly including forced pregnancy, in order to prevent their occurrence, to support the prosecution of such crimes, to provide redress to victims, and to increase awareness of the commission of such crimes as weapons of war.57 Beginning in 1995, forced pregnancy was also explicitly mentioned as a violation of women’s human rights in the yearly resolutions adopted by the United Nations Commission on Human Rights on the elimination of violence against women.58 Very similar in terminology to the Vienna Declaration and Programme of Action, the resolutions condemned conflict-related human rights violations, including forced pregnancy, and called “for a particularly effective response”. Furthermore, in 1997 and 1998, the United Nations Commission on Human Rights mentioned forced pregnancy in its resolutions on children’s rights, calling upon states to take measures to

53 Beijing Declaration and Platform for Action, 15 September 1995 (Beijing Declaration), Platform for Action paras 11, 114, 132. 54 Ibid., Platform for Action para 11, see also para 135. 55 Ibid., Platform for Action para 142(c). 56 Beijing+5, 9 June 2000, Further Actions and Initiatives to Implement the Beijing Declaration and Platform for Action, para 19. 57 Ibid., Further Actions and Initiatives to Implement the Beijing Declaration and Platform for Action, para 96(d). 58 United Nations Commission on Human Rights 1995, para 5; United Nations Commission on Human Rights 1996, para 5; United Nations Commission on Human Rights 1997a, para 4; United Nations Commission on Human Rights 1998a, para 4; United Nations Commission on Human Rights 1999, paras 5–6; United Nations Commission on Human Rights 2001, para 11; United Nations Commission on Human Rights 2002, para 15; United Nations Commission on Human Rights 2003, para 15; United Nations Commission on Human Rights 2004, para 16; United Nations Commission on Human Rights 2005, para 18.

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protect women and children from gender-based violence, including forced pregnancy, and emphasizing the “special reproductive health needs of girls and women, including those that arise from pregnancy as a result of rape”.59 In 1994, forced pregnancy was also mentioned in the CEDAW Committee’s General Recommendation No. 21 as an example for coercive practices that may interfere with women’s right to decide on the number and spacing of children under Article 16(1)(e) of the Convention.60

5.3 The Negotiations for the Statute of the International Criminal Court The Rome Statute of the International Criminal Court entered into force on 1 July 2002.61 The Statute’s adoption was preceded by years of protracted negotiations. On the topic of gender-based crimes against humanity and war crimes, these negotiations were generally difficult. Some delegations opposed the use of the term “gender” in the Statute altogether, be it in procedural or substantive provisions. Besides forced pregnancy, the inclusion of the crime against humanity of gender-based persecution, for which there had also been no precedent, proved controversial.62 But it was the crime of forced pregnancy that elicited the harshest opposition and for which compromise could only be found in the last minute. The following subsections trace the negotiations on the crime of forced pregnancy throughout the various stages. The negotiations on this crime mostly took place in the context of war crimes, but the results were later used for the provision on crimes against humanity as well.63

5.3.1 Early Developments After an early attempt to establish an international criminal court shortly after World War II had failed, Trinidad and Tobago initiated a fresh effort in the United Nations General Assembly in 1989.64 The General Assembly then established an ad hoc Committee, open to all member states, which delivered a report after two sessions

59 United

Nations Commission on Human Rights 1998b, para 13, very similarly United Nations Commission on Human Rights 1997b, para 13. 60 United Nations Committee on the Elimination of Discrimination Against Women 1994, para 22. 61 On the establishment of the ICC, see generally Ambos 2018, § 6 marginal nos 22–23; Schabas 2016, pp 12–27. 62 See Grey 2019, pp 112–113. 63 See Robinson 2000, p 93; von Hebel and Robinson 1999, p 117. 64 United Nations General Assembly 1989; see also Schabas 2016, pp 12–13.

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in 1995.65 This report did not contain any mention of pregnancy-related crimes. The records from the Committee’s sessions do not indicate that such crimes received any attention. In fact, the discussions on substantive law revolved around the more general question of whether and how the crimes should be defined, namely whether the Statute of the proposed court should simply refer to existing documents such as the Geneva Conventions and the Genocide Convention, or whether it should list individual crimes.66 Like the ad hoc Committee’s report, none of the draft codes prepared by the International Law Commission included pregnancy-related crimes.67 In contrast, the so-called Siracusa Draft, prepared by a group of non-governmental organizations in 1995, was already a step further: The draft included a detailed list of individual crimes in its Article 20. As crimes against humanity, it listed not only “rape and other serious assaults of a sexual nature”, but also “other inhumane acts”, clarifying that this residual clause included but was not limited to the following acts: “serious attacks upon physical integrity, personal safety, and individual dignity, such as castration or other mutilation, forced impregnation or forced carrying to term of fetuses that are the product of forced impregnation, and unlawful human experimentation”.68

5.3.2 Preparatory Committee Regarding the official negotiations, pregnancy-related crimes were mentioned for the first time by the Preparatory Committee, which was established by the UN General Assembly in order to continue the deliberations and preparation of a draft Statute for a permanent international criminal court.69 The Preparatory Committee reported to the General Assembly in 199670 but continued its work until 1998, eventually adopting a Draft Statute for an International Criminal Court at the final of its six sessions.71 During the Preparatory Committee’s first session (March/April 1996), the delegations mainly discussed substantive issues, including the definitions of crimes. Pertaining to a list of acts to be included in the provision on crimes against humanity, the Committee’s report states under the heading “rape” that some delegations proposed to include “other serious assaults of a sexual nature, such as forced impregnation”; in this regard, a connection is explicitly drawn to “recent acts committed 65 United Nations Ad Hoc Committee on the Establishment of an International Criminal Court 1995b. 66 See United Nations Ad Hoc Committee on the Establishment of an International Criminal Court 1995a. 67 See Chap. 2, Sect. 2.4.3.3. 68 Association Internationale de Droit Pénal et al. 1995, p 24. 69 United Nations General Assembly 1995. 70 Preparatory Committee on the Establishment of an International Court 1996a. 71 Preparatory Committee on the Establishment of an International Court 1998b.

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as part of a campaign of ethnic cleansing”.72 This ostensibly refers to the former Yugoslavia. In the compilation of proposals from the negotiations, the following suggestion is reproduced: “other inhumane acts [of a similar nature] [, including but not limited to attacks upon physical integrity, personal safety and individual dignity, such as physical mutilation, forced impregnation or forced carrying to term of fetuses that are the product of forced impregnation, and unlawful human experimentation].”73 The brackets, which were widely used throughout the entire document, indicate that there was not yet consensus. The report does not specify where this proposal originated. However, the wording is very similar to the provision on “other inhumane acts” included in the Siracusa Draft and, in the absence of other proposals on pregnancy-related acts, appears to have been taken from this document. Discussions on the specification of individual crimes continued during the Preparatory Committee’s third session in February 1997. The bracketed proposal specifying that “forced impregnation or forced carrying to term of fetuses that are the product of forced impregnation” were examples of “other inhumane acts” was ostensibly rejected at this session and deleted from the consolidated draft article on crimes against humanity. The draft now encompassed a separate category of “rape or other sexual abuse of comparable gravity, or enforced prostitution” (without brackets) as crimes against humanity,74 while the war crimes provision still included a number of different bracketed proposals concerning rape and other forms of sexualized violence.75 None of the consolidated drafts, however, referred to any kind of pregnancy-related or other reproductive crimes. The December 1997 session of the Preparatory Committee was the breakthrough for the criminalization of reproductive violence under the ICC Statute. Based on the drafts from the February session, the Working Group on Definitions and Elements of Crimes adopted a working paper on war crimes on 12 December 1997, which included the following list of acts under Article 20C(B.)(p bis) for international armed conflicts and Article 20C(D.)(e bis) for non-international armed conflicts: “committing rape, sexual slavery, enforced prostitution, enforced pregnancy, enforced sterilization, and any other form of sexual violence also constituting a grave breach of the Geneva Conventions” or “a serious violation of article 3 common to the four Geneva Conventions”.76 Several drafts of this working paper had been prepared during the session. The provision on sexual and reproductive crimes appeared for the first time in an addendum to the draft of 4 December 1997,77 and was then added to the new version of 5 December 1997.78 In reaction to this draft, the Holy See proposed to delete

72 Preparatory

Committee on the Establishment of an International Court 1996a, para 98. Committee on the Establishment of an International Court 1996b, p 68. 74 Preparatory Committee on the Establishment of an International Court 1997a. 75 Preparatory Committee on the Establishment of an International Court 1997b. 76 Preparatory Committee on the Establishment of an International Court 1997f. 77 Preparatory Committee on the Establishment of an International Court 1997c. 78 Preparatory Committee on the Establishment of an International Court 1997d. 73 Preparatory

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the acts of sexual slavery, enforced prostitution, and enforced pregnancy.79 Despite this proposal, the final version of the working paper used the phrase reproduced above, including enforced pregnancy and enforced sterilization, without brackets, which indicates widespread approval.80 At the end of the session, the Preparatory Committee recommended, with overwhelming support for the provision on sexual and gender-based violence,81 the adoption of the working paper of 12 December 1997.82 The provision used in this working paper on war crimes originated from a suggestion by the Women’s Caucus for Gender Justice in the International Criminal Court.83 This highly organized84 group of women’s rights activists and organizations formed after the February 1997 Preparatory Committee session, when it became clear that gender issues had received very limited attention so far.85 In fact, women’s rights activists had not been involved in the early negotiations for a permanent International Criminal Court up until early 1997, because their focus had been on the 1995 United Nations World Conference on Women in Beijing.86 Realizing the potential the creation of such a court might have for women’s rights issues, the activists organized throughout 1997 and built upon the efforts women’s rights groups had made at the UN world conferences as well as at the ad hoc tribunals for Rwanda and the former Yugoslavia.87 Beginning with the December 1997 Preparatory Committee session, the Women’s Caucus played a highly important role in ensuring that the Statute of the International Criminal Court would be drafted in a gender-sensitive manner. Regarding war crimes, it recommended that the provision should identify “rape, sexual slavery, enforced prostitution, forced pregnancy, forced sterilization and other forms of sexual and gender violence as war crimes in themselves.”88 All the acts listed in this proposal can be found in the draft adopted by the Preparatory Committee, though with slight textual variations, i.e. enforced pregnancy instead of forced pregnancy. Notably, the Women’s Caucus was also successful in de-linking sexualized crimes from “outrages upon personal dignity”.89

79 Preparatory

Committee on the Establishment of an International Court 1997e. Bedont and Hall-Martinez 1999, p 73; Glasius 2006, p 88. 81 See Hall 1998, p 333. 82 Preparatory Committee on the Establishment of an International Court 1997g. 83 Women’s Caucus for Gender Justice 1997. See also Glasius 2006, p 88; Halley 2008, p 88. 84 See Glasius 2006, p 81; Grey 2019, p 103. 85 See Bedont and Hall-Martinez 1999, pp 66–67; Durham 2001, pp 826–833; Oosterveld 1999, pp 38–39; Pace and Schense 2000, p 719. 86 See Grey 2019, pp 99–100. 87 See Chappell 2016, pp 35–36; Glasius 2006, pp 79–80. 88 Women’s Caucus for Gender Justice 1997, p 31. 89 See Bedont and Hall-Martinez 1999, p 73. 80 See

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During the Preparatory Committee’s last session in March/April 1998, the Holy See proposed to replace the crime of “enforced pregnancy” with “forcible impregnation”,90 a supposedly more restrictive term, which would only cover the forced induction, not the continuation, of a pregnancy.91 However, this proposition was disregarded92 and the draft Statute for the International Criminal Court adopted by the Preparatory Committee at the end of this final session still included the wording that had emerged from its December 1997 session.93

5.3.3 Rome Conference 1998 The draft Statute prepared by the Preparatory Committee was the basis for the Diplomatic Conference of Plenipotentiaries held in Rome between 16 June and 17 July 1998 (Rome Conference). More than 160 states as well as 17 international organizations and more than 250 non-governmental organizations took part in the conference, which was summoned by the United Nations.94 As a multilateral treaty, the Statute was to be adopted by states; nevertheless, non-governmental organizations were very influential during the negotiations.95 Overall, the most controversial aspects of the negotiations were not of a substantive nature, but concerned the jurisdiction of the court, i.e. whether it would have universal jurisdiction, as well as the role of its prosecutor and its relationship to the United Nations.96 Finally, on 17 July 1998, the Rome Statute of the International Criminal Court was adopted with a majority of 120 states; seven states voted against the Statute and 21 abstained.97 The crime of “enforced pregnancy” was included in the draft Statute as a war crime in international armed conflict as well as non-international armed conflict,98 but not as a crime against humanity. Despite the lack of brackets used for the war crimes provision on enforced pregnancy, the issue of whether to include this crime in the Statute at all and how to define it proved to be one of the most controversial questions during the Rome Conference.99

90 Preparatory

Committee on the Establishment of an International Court 1998a. Kuschnik 2009, p 355. 92 See Bedont and Hall-Martinez 1999, p 73. 93 Preparatory Committee on the Establishment of an International Court 1998b. 94 United Nations General Assembly 1998. See Werle and Jeßberger 2020, marginal no 61. 95 See Grey 2019, p 99. 96 See Werle and Jeßberger 2020, marginal nos 64–66. 97 See ibid., marginal no 67. 98 The extent to which war crimes in non-international armed conflicts should be included at all was, however, still disputed. 99 See Bedont 1999, p 199. On the Rome negotiations, see generally Chappell 2016, pp 95–96; Grey 2019, pp 108–110. 91 See

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201

Opposition to the Crime

Until the Rome Conference, only the Holy See had gone on record opposing the inclusion of enforced pregnancy. In Rome, other delegations joined this opposition,100 essentially relying on two arguments: First, they asserted that forced pregnancy should not constitute a separate crime at all, because it was deemed congruent with the crime of rape.101 In this regard, the Holy See delegation also argued that the term “forced pregnancy” was ambiguous, because “it is difficult to view the birth of an innocent human being as a crime; instead we have here a combination of crimes to which heavy penalties have already been attached: sexual violence, unlawful confinement, etc.”102 Second, delegations strongly opposed to abortions generally regarded the inclusion of the crime as a threat to domestic laws criminalizing abortions, or feared that it would establish an international right to abortion.103 The Holy See, for example, stated: As with Pandora’s box, this language [of enforced or forced pregnancy as a war crime] may be appealing to some: however, like Pandora’s box, it contains horrors we cannot afford to release. Retention of ‘forced’ or ‘enforced pregnancy’ raises the ironic prospect of making the enforcement of legitimate State and conventional law a ‘war crime’. Included in these difficulties are improper challenges to State constitutions and legislation, multilateral treaties and the obligations they impose, and the rule of speciality which comes into play when two States may be involved in the prosecution of persons charged with crimes that may fall within the jurisdiction of the ICC.104

In the opposition to the crime of forced pregnancy, there was no clear differentiation between two distinct aspects: Some delegations were worried that the failure to provide abortion access would fall under the scope of the crime, others feared that adopting or enforcing domestic laws criminalizing abortion would constitute a criminal act.105 As Bedont recalled, for example, the Holy See feared that the policy of Catholic hospitals not to provide abortion services would have to be changed in case of the adoption of the crime of forced pregnancy; similarly, the Irish delegation was 100 Besides

the Holy See, the following delegations opposed the inclusion of forced pregnancy: Bahrain, Colombia, Costa Rica, Ecuador, Egypt, Iran, Iraq, Ireland, Kuwait, Libya, Malta, Nicaragua, Oman, Paraguay, Poland, Philippines, Russia, San Marino, Saudi Arabia, United Arab Emirates, and Venezuela; see Bedont and Hall-Martinez 1999, p 74, footnote 42. 101 See e.g. United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court 1998a, p 160 (Libya, United Arab Emirates), p 162 (Kuwait). See also Drake 2012, p 607; Grey 2017, p 919; Kuschnik 2009, p 354. 102 Tauran, The Defence of Life in the Context of International Policies and Norms, 11 February 2000, footnote 25, https://www.vatican.va/roman_curia/secretariat_state/documents/rc_ seg-st_doc_20000211_tauran-acdlife_en.html (accessed 24 October 2020). 103 See e.g. ibid.; United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court 1998a, pp 148, 163 (Saudi Arabia), p 166 (Iran); Wilkins and Reynolds 2006, p 139. See also Cottier and Mzee 2016, marginal no 721; Drake 2012, p 607; Grey 2017, p 919; Grey 2019, p 108; Koenig and Askin 2000, p 14; Schwarz 2019, p 258. 104 Holy See 1998. 105 See also Grey 2019, p 108.

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concerned that its constitutional restriction on abortion services would fall within the crime’s scope.106 Several delegations, such as Saudi Arabia107 and Libya,108 explicitly opposed the inclusion of forced pregnancy because of their domestic prohibition of abortion. Furthermore, some state delegations at the Rome Conference, particularly some Arab states, felt that the crime of forced pregnancy would threaten their national sovereignty.109 Besides state delegations, a number of non-governmental organizations lobbied against the inclusion of the crime of forced pregnancy, also due to their opposition to abortions.110

5.3.3.2

Support for the Crime

On the other side, the delegations supporting the inclusion of forced pregnancy (or a variation of which) insisted that the purpose of the provision was not to interfere with the debate on pregnancy termination, but to explicitly criminalize the acts which had been documented in the former Yugoslavia.111 Besides some supportive state delegations, such as Jordan,112 Slovenia,113 and the United States,114 several NGOs played an important role.115 In preparation of the Rome Conference, the International Commission of Jurists issued a statement on the definition of crimes in which it welcomed the addition of the provision on gender-based violence, including “enforced pregnancy”. Critically, it also suggested replacing the somewhat controversial terminology of “enforced pregnancy” with “forced pregnancy”, a term that had been adopted by consensus in the Beijing Platform for Action.116 The Women’s Caucus for Gender Justice at the ICC, which had initiated the inclusion of a provision on sexual and reproductive violence as war crimes in the Preparatory Committee, immensely contributed to the negotiations on sexual and reproductive crimes in Rome as well. In a statement issued during the Conference, the Women’s Caucus 106 Bedont

1999, p 197. Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court 1998a, pp 148, 163. 108 Ibid., p 160. 109 See Chappell 2016, p 96; Roach 2005, pp 148–149. 110 See Glasius 2006, pp 82–84; Grey 2019, pp 104–105; Pace and Schense 2000, p 719. 111 See Bedont 1999, p 197; Steains 1999, p 366. See also Robinson 1999, p 53, footnote 63. 112 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court 1998a, p 332. 113 Ibid., p 346. 114 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court 1998b, p 19. 115 See Glasius 2006, pp 79–82. 116 International Commission of Jurists 1998, pp 9–10. According to Askin, the Women’s Caucus delegates were divided on whether the term “forced” or “enforced” pregnancy should be used, see Askin 1999a, p 46, footnote 43. 107 United

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drew attention to pregnancy-related violence committed in Bosnia and Herzegovina, Rwanda, and against African-American slaves, and strongly condemned the linkage of the proposed crime to the abortion debate.117 Furthermore, the delegation of Bosnia and Herzegovina itself played an important role prior to and during the Rome Conference. Against the background of the pregnancy-related crimes committed in the recent war on its territory, the delegation lobbied for the inclusion of forced pregnancy in the Statute.118 It explicitly supported “the proposition to include within the definition of war crimes the acts of enforced pregnancy because we believe that this crime has to find a proper qualification under this statute, distinct from other forms of sexual abuse.”119

5.3.3.3

Search for a Compromise

There were no formal negotiations on the issue of forced pregnancy during the first three weeks of the Rome Conference. Nevertheless, several state delegations supportive of a crime of forced pregnancy120 as well as non-governmental organizations informally lobbied for its inclusion in the Statute.121 Nearing the end of the Conference, the Coordinator of the Committee of the Whole issued a working paper on crimes against humanity, which still listed “enforced pregnancy” in brackets, indicating that consensus had not been reached.122 The only other part of the proposed provision still included in brackets was the crime against humanity of terrorism, which would eventually not become part of the Statute. Notably, however, this is the first time that the crime of (en)forced pregnancy appeared in the context of crimes against humanity. Previously, the crime had only been discussed as a war crime. The Preparatory Committee’s recommendation had only included “[r]ape or other sexual abuse [of comparable gravity,] or enforced prostitution” as gender-based crimes against humanity.123 According to an earlier proposal by the US delegation, the crime of sexual abuse should be interpreted to include sexual mutilation, enforced pregnancy, and enforced sterilization.124 The coordinator’s working paper went a step further in listing “enforced pregnancy” (but not the other acts) as a separate crime against humanity. 117 Women’s

Caucus for Gender Justice 1998. Glasius 2006, p 89; Graditzky 1999, p 205; Joseph 2008, p 83. 119 Delegation of Bosnia and Herzegovina 1998. 120 Delegations in favour of the crime included: Australia, Austria, Azerbaijan, Bosnia-Herzegovina, Burundi, Canada, Croatia, Estonia, India, Mexico, The Netherlands, Nigeria, Rwanda, Slovenia, Sudan, Turkey, and the United States; see Bedont and Hall-Martinez 1999, p 74, footnote 43. 121 See Steains 1999, p 366. 122 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court 1998c. 123 Preparatory Committee on the Establishment of an International Court 1998b, p 20. 124 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court 1998b, p 6. 118 See

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In order to accommodate the opposing positions on forced pregnancy, the discussions in Rome centered on finding a definition of the crime that would be sufficiently clear and restrictive.125 A proposal by the Women’s Caucus defined forced pregnancy as “rape or other sexual abuse carried out with the intent or having the effect of making a woman pregnant and/or confining, controlling or coercing a pregnant woman because she is pregnant.”126 However, this proposal did not find a majority. At an informal meeting held with interested delegations, it was agreed that the crime should not interfere with national laws on pregnancy termination. Further, the delegates agreed on the key elements of the proposed crime, namely a forcibly induced pregnancy, unlawful confinement and a still unspecified intent requirement.127 While agreement on the objective elements was rather easily reached, the added intent requirement proved controversial.128 Delegations opposed to the crime wished to limit it to scenarios of so-called “ethnic cleansing”, while others pointed to the example of “medical” experiments relating to forcible impregnation conducted during World War II to illustrate that pregnancy-related crimes were also committed in other contexts. Only on the second-to-last day of the Conference, the negotiators agreed on the alternate special intent requirement, which included not only “the intent of affecting the ethnic composition of any population”, but also extended to “carrying out other grave violations of international law”.129 As an additional safeguard to assure the hesitant delegations that there would be no interference upon national legislation on pregnancy termination, a second sentence was added to the definition.130 As a result of the Rome Conference, forced pregnancy is included in the Statute both as a crime against humanity and as a war crime, both in international and noninternational armed conflict. The definition of the crime in Article 7(2)(f) of the ICC Statute reads: ‘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. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy. 125 See Bedont and Hall-Martinez 1999, p 74; Halley 2008, pp 88–89. An interview with a Holy See

representative after the Rome Conference illustrates why such a definition was deemed necessary. In a striking exaggeration, he stated: “If that term, ‘forced pregnancy,’ had been left to stand alone, without being defined further, it would have been extremely dangerous. It could have been used to condemn the husband who persuades his wife not to interrupt her pregnancy; it could have been used against laws that prevent abortion after a certain number of weeks. The Pope himself speaking against abortion from his study window could have been incriminated!”, see Bardazzi, War: A OneWay Adventure, Traces, November 2002, archivio.traces-cl.com/nov02/waraone.htm (accessed 24 October 2020). 126 Women’s Caucus for Gender Justice, Priority Concerns: Respecting War Crimes, Article B, cited after Halley 2008, p 89. 127 See Steains 1999, pp 367–368. 128 See Cottier and Mzee 2016, marginal no 722. 129 See Bedont and Hall-Martinez 1999, p 74. See also Steains 1999, p 368. 130 See Schwarz 2019, p 258; Steains 1999, p 368.

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5.3.4 Preparatory Commission Despite this compromise reflected in Article 7(2)(f) of the ICC Statute, the contentious positions on the crime of forced pregnancy were also visible during the sessions of the Preparatory Commission. This commission, commonly known as “PrepCom” (but not to be confused with the Preparatory Committee), was established after the Rome Conference and tasked with preparing the practical work of the new court. Among other tasks, the PrepCom drafted a proposal for the Elements of Crimes. The Elements of Crimes are a legally non-binding instrument which “assist the Court in the interpretation of articles 6, 7, 8 and 8 bis”,131 but have proven to be very influential in practice.132 The Preparatory Commission held ten sessions between 1999 and 2002;133 the Assembly of States Parties then approved its proposals. The first proposal by a delegation that included a definition of the elements of forced pregnancy was submitted by the United States during the PrepCom’s first session in February 1999. It included the following substantive elements for the war crime of forced pregnancy: 2. That the accused intended to affect the ethnic composition of a population or to carry out another grave violation of international law. 3. That, in the furtherance of that intent, the accused imprisoned one or more persons within a confined area. 4. That the person imprisoned had been previously raped or otherwise forcibly impregnated, and the accused knew that such person had been previously raped or forcibly impregnated. 5. That the imprisonment was without, and the accused knew it was without, lawful justification or excuse. Comments: The ‘without lawful justification or excuse’ element in this offence would, for example, preclude prosecution for acts committed as a logical consequence of domestic laws involving pregnancy.134

This proposal replicated the intent clause used in Article 7(2)(f) of the ICC Statute, but went into more detail with regard to the act of confinement as well as the unlawfulness of this act. However, it was rejected by the other delegations. Other proposals submitted by Spain,135 Costa Rica/Hungary/Switzerland,136 Colombia,137 as well as Canada/Germany138 adhered more strictly to the ICC Statute definition, though with linguistic variations. This approach was also used in a discussion paper prepared by 131 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS

3 (entered into force 1 July 2002) (ICC Statute), Article 9(1). Werle and Jeßberger 2020, marginal no 236. See also Chap. 1, Sect. 1.4.2. 133 Documentations of the sessions are available at Preparatory Commission for the International Criminal Court, https://legal.un.org/icc/prepcomm/prepfra.htm (accessed 24 October 2020). 134 Preparatory Commission for the International Criminal Court 1999a. 135 Preparatory Commission for the International Criminal Court 1999b. 136 Preparatory Commission for the International Criminal Court 1999c. The Women’s Caucus for Gender Justice agreed with this proposal, see Women’s Caucus for Gender Justice 1999. 137 Preparatory Commission for the International Criminal Court 1999d. 138 Preparatory Commission for the International Criminal Court 1999g. 132 See

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the Coordinator of the PrepCom’s Working Group on the Elements of Crimes during the second session in July/August 1999: 2. The accused confined one or more women. 3. Such woman or women had been forcibly made pregnant. 4. 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.139

This proposal was adopted at the first reading.140 However, at the third session held in November and December 1999, Colombia proposed to exemplify grave violations of international law in the intent requirement,141 but this apparently did not find support among the delegations. Furthermore, Colombia suggested adding the word “illicitly”142 or “unlawfully”143 to the second element at the fourth session in March 1999, but this was also rejected. In fact, the definition in Article 7(2)(f) of the ICC Statute also requires that the confinement be “unlawful”. However, the final Elements of Crimes state in paragraph six of the General Introduction that the requirement of “unlawfulness” is generally not specified in the document. On a more fundamental note, a joint proposal submitted by Bahrain, Iraq, Kuwait, Lebanon, Libya, Oman, Qatar, Saudi Arabia, Sudan, Syria, and United Arab Emirates sought to add the following element: “These acts do not include acts related to natural marital sexual relations or the bearing of children in different national laws in accordance with religious principles or cultural norms.”144 This proposal reflected the conflict lines of the Rome Conference, with some delegations suspecting an interference with their freedom to regulate family and marital life as well as reproduction in accordance with their own cultural standards. In the light of the intricate compromise found during the Rome Conference, it did not find support among other delegations. The Coordinator’s proposal remained the basis of negotiations up until the end of the Preparatory Committee’s fourth session in March 1999. However, several delegations objected to the phrase “keep the woman or women pregnant” as used in the fourth element of the Coordinator’s proposal. Some delegations, like the Holy See and the United Arab Emirates, viewed it as an extension of the original definition145 and, again, feared that they would be forced to provide forcibly impregnated women access to abortions.146 Conversely, others saw the phrase as an undue restriction of the definition as agreed upon during the Rome Conference, claiming that it was applicable only to the first special intent alternative of affecting the ethnic composition, but not to the intent of carrying out other grave violations.147 As an example, they 139 Preparatory

Commission for the International Criminal Court 1999e, p 71. La Haye 2000, p 194. 141 Preparatory Commission for the International Criminal Court 1999f. 142 Preparatory Commission for the International Criminal Court 2000a. 143 Preparatory Commission for the International Criminal Court 2000b. 144 Preparatory Commission for the International Criminal Court 1999h. 145 See La Haye 2000, pp 194–195; Rückert and Witschel 2001, p 85. 146 See Dörmann 2003, p 330, footnote 5. 147 See Grey 2019, pp 116–117; La Haye 2000, pp 194–195. 140 See

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referred to the act of confining a woman forcibly made pregnant in order to torture her, which would not fall under the scope of the proposed element.148 The summary of proceedings from the fourth session reflected this disagreement.149 The delegations were unable to find compromise regarding the element of “keeping a woman pregnant” and the final provision adopted by the Preparatory Commission at its fifth session no longer refers to the contested phrase.150 The final version of the Elements of Crimes read as follows: “The perpetrator confined one or more women forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law.”151 This clause does not give any additional information on the elements of forced pregnancy as compared to Article 7(2)(f) of the ICC Statute. It does not use the qualifying term “unlawful”152 with regard to the confinement and it does not replicate the definition’s second sentence on national laws relating to pregnancy. The structure of the provision also deviates from the approach generally used in the Elements of Crimes, as the first Element contains all aspects of the crime that would normally be separated into several elements,153 relating to conduct, consequences, and circumstances.154 This is a further indication of the disagreement persisting even beyond the Rome Conference. As Grey pointed out, the replication of the definition used in the ICC Statute also appears to be due to misunderstandings among the delegations concerning the scope of the crime, namely the difference between forcibly making and keeping a person pregnant as well as whether it would only apply to cases similar to the Bosnian scenario.155

5.3.5 Analysis and Evaluation of the Drafting Process 5.3.5.1

Political Background

The opposition to the crime of forced pregnancy must be seen in the context of a broader resistance to the protection of women’s reproductive rights on the international level. This resistance was particularly visible during the 1990s, when international law was developing at rapid pace, pertaining to both international human rights law and international criminal law. Already in 1994, at the International Conference 148 See

Dörmann 2003, p 330, footnote 5. Commission for the International Criminal Court 2000c, p 13, footnote 20. 150 Preparatory Commission for the International Criminal Court 2000d. See also La Haye 2000, p 195; Rückert and Witschel 2001, p 85. 151 ICC Elements of Crimes, Article (7)(1)(g)-4, no. 1; Article 8(2)(b)(xxii)-4, no. 1; Article 8(2)(e)(vi)-4, no. 1. All provisions include further elements on the respective contextual element. 152 See ICC Elements of Crimes, General Introduction para 6. 153 See Rückert and Witschel 2001, p 85. 154 See ICC Elements of Crimes, General Introduction para 7. 155 Grey 2019, p 117. 149 Preparatory

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on Population and Development held in Cairo,156 many delegations were reluctant to recognize such rights in the Programme of Action: The chapter on “Reproductive Rights and Reproductive Health” was among the most controversial to negotiate.157 Both in Cairo and in Rome, the Holy See took a particularly vocal position against any reproductive rights issues. In both cases, some Islamic states joined this opposition,158 leading some scholars to designate this the “unholy alliance”.159 The common factor in these groups’ opposition to the respective provisions is the strong rejection of women’s ability to control their sexual and reproductive life.160

5.3.5.2

Scope of the Crime

Regarding the scope of the crime that was eventually adopted, it is interesting to note that only forced pregnancy (i.e. the unlawful confinement of a woman forcibly made pregnant) is included in the ICC Statute, not forced impregnation. This omission is especially noteworthy because even those negotiating parties opposed to including “forced pregnancy” had embraced the inclusion of “forced impregnation” in the Statute. In fact, the Holy See itself had suggested the term “forcible impregnation” during the Preparatory Committee negotiations.161 However, other delegations rejected this as too restrictive, because it captured only the impregnation, not the act of keeping the victim pregnant.162 It seems possible that in the view of these delegates, “forced pregnancy” functioned as an umbrella term, extending to both the act of impregnation and the subsequent confinement.163 In fact, Barbara Bedont, who was involved in the negotiations as a member of the Women’s Caucus, stipulated that the crime is not only fulfilled by the confinement of a pregnant woman, but also by “rape or sexual abuse of a woman with the intent or effect of making her pregnant”.164 Nevertheless, Bedont acknowledged that this latter form of the crime was not explicitly included in the definition—a circumstance she described as “puzzling” with a view to the above-mentioned Holy See proposal to criminalize “forcible impregnation” and the lack of relation to anti-abortion concerns.165 On a 156 See

Chap. 3, Sect. 3.4.1.1. Zulficar 1994–1995, p 1025. See also Fleishman 2000, pp 283–289. 158 See Berro Pizzarossa 2018, p 7; Zulficar 1994–1995, pp 1027–1028. 159 See Berro Pizzarossa 2018, p 7; Copelon 2000, p 236. However, see also Berro Pizzarossa 2018, p 7; Zulficar 1994–1995, pp 1027–1028, pointing out various nuances and differences in the positions. 160 See also Berro Pizzarossa 2018, p 7. 161 Preparatory Committee on the Establishment of an International Court 1998a. 162 See Joseph 2008, p 82; Steains 1999, p 366. 163 See Bedont 1999, p 197, stating that the inclusion of the act of impregnation was not contested and that it could still be covered by the provision even though it is not explicitly mentioned. See also Steains 1999, p 366. 164 Bedont 1999, p 197. 165 Ibid. 157 See

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similar note, Cate Steains asserted that “enforced pregnancy was a broader concept” than forcible impregnation.166 Bedont’s argument that, in light of the negotiating history, the crime of forced pregnancy encompasses the act of impregnation is not persuasive. The definition of the crime in Article 7(2)(f) of the ICC Statute makes clear that the act of detainment is criminalized, not the act of impregnation as such. Although it was never explicitly clarified during the negotiations, the fact that the term “forced pregnancy” was chosen for the Statute means that “forced impregnation” does not constitute a separate crime. The same consideration applies to a potential crime of “forced maternity”, which Askin had proposed in her 1997 book on “War Crimes against Women”.167 In contrast to forced pregnancy, the proposed crime of forced maternity would additionally require that a child actually be born. But since all other requirements are also included in the crime of forced pregnancy, all acts that would fall under forced maternity can be prosecuted as forced pregnancy. A further result of the negotiations was the use of the term “forced” instead of “enforced pregnancy”, the latter of which had been used in early proposals, as discussed in the previous subsections.168 Though the terminological differences between them are rarely discussed, Kelly Askin pointed out that “‘enforced’ connotes a policy or practice” whereas “‘forced’ connotes violence, threats or coercion”.169 Accordingly, the term “forced” was apparently seen as more restrictive and thus more easily acceptable to the delegations opposed to the crime.170 However, it is questionable whether this terminological variation will have any practical effects. Regardless of its restrictive elements,171 the inclusion of the crime of forced pregnancy can be seen as a striking success of the Women’s Caucus and the feminist movement in international law and politics in general. It is particularly remarkable that the scope of application of the crime of forced pregnancy is not limited to scenarios of “ethnic cleansing”, even though the historical example prompting the efforts in the first place was Bosnia, where a link between reproductive violence and ethnicity was indisputably present.172

166 Steains

1999, p 366. 1997, pp 402–403. 168 According to Halley, this modification originated from a Women’s Caucus proposal, see Halley 2008, p 89. 169 Askin 1999b, p 55, footnote 58. See also Koenig and Askin 2000, p 14. 170 See Arsanjani 1999, p 31; Kuschnik 2009, p 355. 171 The Women’s Caucus had originally proposed a much broader definition of the crime and was apparently dissatisfied with the result. See Halley 2008, pp 89, 104; Women’s Caucus for Gender Justice 1999. 172 See also Grey 2017, pp 921–922; Koenig and Askin 2000, p 15; Werle and Jeßberger 2020, marginal no 1078. 167 Askin

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5.4 Forced Pregnancy as a Separate Crime Under International Law As noted above,173 the inclusion of forced pregnancy was controversial partly because some contended that a separate crime would be unnecessary. In this context, Rückert and Witschel identified “two schools of thought”: The implicit prosecution of forced pregnancy as rape and confinement, or the distinct criminalization and recognition of “the specific harm and injustice” entailed in this act.174 During the Rome Conference, the Libyan delegate, for example, asserted that “[e]nforced pregnancy was the result of rape and it was the act itself that should constitute a crime.”175 Similarly, the delegate from Kuwait stated that “[t]he term ‘enforced pregnancy’ […] should be reconsidered because rape was in any case criminalized and it might be considered that pregnancy was an aggravating circumstance of rape.”176 In the words of the Holy See delegation, forced pregnancy was merely “a combination of crimes to which heavy penalties have already been attached: sexual violence, unlawful confinement, etc.”177 Among feminist legal scholars, however, there was a growing demand to explicitly recognize and criminalize forced impregnation or forced pregnancy as a separate crime.178 During the ICC negotiations, the Women’s Caucus successfully lobbied for this position. As of today, forced pregnancy is recognized as a separate crime against humanity and a war crime. This is not the case, however, for the act of forced impregnation, which thus can only be prosecuted under the umbrella of other, more general crimes. With regard to forced pregnancy, the debate on whether it constitutes a separate crime nevertheless remains relevant with respect to customary international law and possible future tribunals.

5.4.1 Implicit Prosecution as Other Crimes Both the acts of forced impregnation and forced pregnancy could be prosecuted under the scope of more general offenses, as the following subsections delineate.

173 See

this chapter, Sect. 5.3.3.1. and Witschel 2001, p 84. 175 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court 1998a, p 160. 176 Ibid., p 162. 177 Tauran, above n 102. 178 See Askin 1997, pp 398–403; Copelon 1994, pp 256, 261; Fisher 1996, p 93; Goldstein 1993, pp 22–24; Green et al. 1994, p 237; Helsinki Watch 1993, pp 21–22. 174 Rückert

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5.4.1.1

211

Forced Impregnation

Forced impregnation is understood here as the forcible act resulting in and intended to result in impregnation.179 When the impregnation is (intended to be) the result of forced sexual intercourse, the objective elements would be congruent with the crime of rape.180 However, an act of forced impregnation may also be conducted through artificial insemination. Depending on the circumstances of the commission, such an act may still constitute an invasion of the victim’s genital opening with an object in the sense of the crime of rape as defined in the Elements of Crimes.181 Besides rape, the act of forced impregnation may also be prosecuted as other crimes against humanity and war crimes under the ICC Statute.182 In the context of crimes against humanity, prosecution may be possible under the crime of torture,183 sexual slavery, enforced prostitution, or any other form of sexual violence of comparable gravity,184 persecution,185 or other inhumane acts.186 Regarding war crimes in international armed conflict, the following provisions may apply: torture or inhuman treatment, including biological experiments,187 wilfully causing great suffering or serious injury to body or health,188 subjecting persons who are in the power of another party to physical mutilation or to medical or scientific experiments,189 outrages upon personal dignity,190 and sexual slavery, enforced prostitution, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions.191 Lastly, in non-international armed conflict, forced impregnation may constitute the war crimes of violence to life and person, in particular cruel treatment and torture,192 outrages upon personal dignity,193 sexual slavery, enforced prostitution, or any other form of sexual violence also constituting a serious violation of Article 3 common to the four Geneva Conventions,194 or subjecting persons who are in the power of another party to physical mutilation or to medical or scientific experiments.195 179 See

also Chap. 4, Sect. 4.3.1.2. Statute, above n 131, Article 7(1)(g), Article 8(2)(b)(xxii), Article 8(2)(e)(vi). 181 ICC Elements of Crimes, Article 7(1)(g)-1, no. 1, Article 8(2)(b)(xxii)-1, no. 1, Article 8(2)(e)(vi)-1, no. 1. 182 See also Grey 2017, p 928. 183 ICC Statute, above n 131, Article 7(1)(f). 184 Ibid., Article 7(1)(g). 185 Ibid., Article 7(1)(h). 186 Ibid., Article 7(1)(k). 187 Ibid., Article 8(2)(a)(ii). 188 Ibid., Article 8(2)(a)(iii). 189 Ibid., Article 8(2)(b)(x). 190 Ibid., Article 8(2)(b)(xxi). 191 Ibid., Article 8(2)(b)(xxii). 192 Ibid., Article 8(2)(c)(i). 193 Ibid., Article 8(2)(c)(ii). 194 Ibid., Article 8(2)(e)(vi). 195 Ibid., Article 8(2)(e)(xi). 180 ICC

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5.4.1.2

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Forced Pregnancy

Forced pregnancy, understood in the sense of Article 7(2)(f) of the ICC Statute as the unlawful confinement of a forcibly impregnated woman, may also be prosecuted as other crimes against humanity and war crimes196 under the ICC Statute. In this context, all crimes mentioned above apply with regard to the preliminary act of the forcible impregnation. As regards the act of confinement, the following crimes against humanity may be relevant: enslavement,197 imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law,198 torture,199 sexual slavery or any other form of sexual violence of comparable gravity,200 persecution,201 or other inhumane acts.202 In international armed conflict, forced pregnancy may be prosecuted as the following war crimes: torture or inhuman treatment,203 wilfully causing great suffering or serious injury to body or health,204 unlawful confinement,205 outrages upon personal dignity,206 and sexual slavery or any other form of sexual violence also constituting a grave breach of the Geneva Conventions.207 Regarding non-international armed conflicts, the following crimes may apply: violence to life and person, in particular cruel treatment and torture,208 outrages upon personal dignity,209 and sexual slavery or any other form of sexual violence also constituting a serious violation of Article 3 common to the four Geneva Conventions.210

5.4.2 Necessity of Separate Crimes? The previous subsection has shown that prosecution of forced impregnation and forced pregnancy is possible even without explicit criminalization. Against this background, it can be called into question whether separate crimes of forced impregnation and/or forced pregnancy are necessary. The following subsections evaluate the 196 See

generally with regard to both rape and forced pregnancy Eriksson 2000, pp 368–404. Statute, above n 131, Article 7(1)(c). 198 Ibid., Article 7(1)(e). 199 Ibid., Article 7(1)(f). 200 Ibid., Article 7(1)(g). 201 Ibid., Article 7(1)(h). 202 Ibid., Article 7(1)(k). 203 Ibid., Article 8(2)(a)(ii). 204 Ibid., Article 8(2)(a)(iii). 205 Ibid., Article 8(2)(a)(vii). 206 Ibid., Article 8(2)(b)(xxi). 207 Ibid., Article 8(2)(b)(xxii). 208 Ibid., Article 8(2)(c)(i). 209 Ibid., Article 8(2)(c)(ii). 210 Ibid., Article 8(2)(e)(vi). 197 ICC

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general significance and necessity of separate, specific crimes. Furthermore, they depict the unique harm suffered by victims of forced impregnation and forced pregnancy in relation to more general crimes under international law, and assess the necessity of separate crimes in these cases.

5.4.2.1

Significance of Explicit Criminalization of Gender-Based Violence Under International Law

Explicit criminalization is important because “the ability to eliminate a wrong is contingent on it first being ‘named’”.211 As the Ongwen Trial Chamber put it, “the proper characterisation of the evil committed, that is to say, calling the crime by its true name, is part of the justice sought by the victims”.212 While it has long been possible to prosecute sexual violence under more general provisions of international criminal law, this opportunity was rarely seized in practice. Indeed, as shown above, the prosecution of rape and other sexualized or gender-based violence has theoretically been possible since the Nuremberg trial. Prosecutors could have used general provisions of the Nuremberg Charter such as the crime against humanity of “other inhumane acts”213 as well as the war crime of “ill-treatment”.214 However, they chose not to. While the ad hoc tribunals for Rwanda and the former Yugoslavia made considerable progress in the prosecution of sexualized and genderbased violence, the judgments did not adequately reflect the various manifestations and severity of gender-based crimes. Against this background, women’s rights advocates lobbied for an express enumeration of specific crimes during the ICC negotiations. In their view, only such an enumeration would ensure that these acts are “always on the checklist and always understood as crimes in themselves.”215 These considerations apply to all sexualized and gender-based crimes—and particularly to reproductive crimes. Though pregnancy-related acts could also have been prosecuted at the ICC without adding a separate crime of forced pregnancy, it is unlikely that this would have happened. Prosecution of sexualized and gender-based crimes has proven difficult in practice, and it can be assumed that the Prosecutor’s priorities and resources would have been allocated differently in the absence of a specific crime. In fact, although there was evidence on the forcible impregnation and subsequent confinement of women in Bosnia, these acts were not addressed 211 Cook

and Cusack 2011, p 39. 2021, above n 1, para 2722, referring to the principle of fair labelling. 213 Charter of the International Military Tribunal, Annex to the Agreement by the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945 (IMT Charter), Article 6(c); see Askin 1997, p 142; Bassiouni 2011, p 425; De Brouwer 2005, p 7; Möller 2001, p 285; Schwarz 2019, p 104; Werle and Jeßberger 2020, marginal no 1065. 214 IMT Charter, above n 213, Article 6(b); see Schwarz 2019, p 104. 215 Copelon 2000, p 234. See also Grey 2019, pp 103–104. 212 Ongwen

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at the ICTY. In dealing with sexualized violence, the additional reproductive character of such crimes was rarely enunciated. These developments illustrate that the explicit criminalization of different manifestations of sexualized and gender-based violence ensures that such acts are always understood as criminal conduct deserving investigation and prosecution.216 Furthermore, enumerating specific crimes explicitly recognizes the unique harm entailed in those acts.217 This relates to the expressive function of international criminal law, which has been addressed in the context of prosecution and punishment,218 and which also comes into play with regard to the precise qualification of offenses.219 By explicitly criminalizing a certain conduct, the international community recognizes and proclaims that it potentially amounts to “grave crimes [which] threaten the peace, security and well-being of the world”.220 Further, through providing the legal basis for prosecution of a certain conduct, a separate crime reaffirms that the unique harm captured under the offense amounts to a serious violation of the individual victim’s rights not only in the abstract, but also in the specific case.221 Until the 1990s, international law remained almost completely silent on the gendered nature of the harms suffered by women as well as by men and children in armed conflicts and other macro-criminal contexts. A specific criminalization under international law acknowledges these gendered experiences. In a 1994 article, Copelon insisted that it was important to “‘surface’ gender in the midst of genocide”.222 This idea was taken up, inter alia, by Oosterveld, who called for the use of the explicit label of “forced marriage”, asserting that “[n]aming is an important expressive tool for revealing an otherwise hidden harm, explaining its implications, and labelling it as a violation.”223 Grey also referred to the term used by Copelon, insisting that reproductive violence must be “surfaced” in international criminal law.224 Against this background, a benefit of specific criminalization of gender-based violence lies in its potential to “surface” what would otherwise remain concealed. It not only 216 Copelon

2000, p 234. See also Grey 2019, pp 103–104. Rückert and Witschel 2001, p 81. With regard to forced marriage, see Bunting and Ikhimiukor 2018. See also Grey forthcoming, p 17, highlighting “the ‘expressive’ power” of treating reproductive violence as crimes under international law. 218 See e.g. deGuzman 2012; Drumbl 2007, pp 173–179; Epik 2017, pp 149–152; Werkmeister 2015, pp 272–347. 219 See also Ambos 2017, p 40; Bunting and Ikhimiukor 2018. 220 ICC Statute, above n 131, preamble para 3. Similarly, see Eriksson 2000, p 480; Grey 2017, p 927; Oosterveld 2013, p 235. 221 See also Grey 2017, p 927. With regard to forced marriage, see also Bunting and Ikhimiukor 2018, asserting that a distinct crime of forced marriage should be added to the ICC Statute in the light of the unique harm suffered by the victims. 222 Copelon 1994, p 247. See also Chap. 1, Sect. 1.4.3. 223 Oosterveld 2011, pp 138–139. It is worth noting that Oosterveld referred only to labelling a certain type of conduct as “forced marriage” in the context of the crime against humanity of other inhumane acts. However, her analysis was limited to the legal framework of the Special Court for Sierra Leone de lege lata. 224 Grey 2017, p 905. 217 See

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allows for an appropriate assessment of the perpetrators’ criminal responsibility, but also acknowledges the victims’ experiences and highlights the unique harm they suffered.225 This may also be significant in the context of transitional justice initiatives and post-conflict scenarios. With a view to the stigma often attached to survivors of sexualized and gender-based violence, the precise qualification and acknowledgement of the forcible nature of the acts committed against them may benefit the process of rehabilitation and reconciliation.226 Beyond this symbolic recognition, specific criminalization also allows for the practical acknowledgement of victims’ experiences through the instruments of victim participation and reparations. Prosecution of specific crimes, as opposed to more general offenses, ensures that the underlying conduct is a central focus of criminal trials, which—in the context of the International Criminal Court—allows victims to present their “views and concerns”227 to the Court. According to Rule 85(a) of the ICC Rules of Procedure and Evidence, victims are persons who “suffered harm as a result of the commission of any crime within the jurisdiction of the Court”. Thus, in order to participate, it is necessary that the harm suffered by a victim is encompassed in a crime under the ICC Statute. Regarding reparations, explicit criminalization not only ensures that victims of the particular conduct are among the beneficiaries. It is also important that the conviction reflect the unique harm suffered by the victim in order to identify which form of reparations is suitable.228

5.4.2.2

The Unique Harm

A key assumption underlying all these arguments in favour of specific criminalization is that victims of forced impregnation and forced pregnancy suffer a unique harm, which is not adequately embodied in prosecution under more general crimes such as rape and confinement. The essential violation suffered by a victim of forced impregnation, meaning forcibly making a person pregnant, lies in the denial of the choice whether to become pregnant. In contrast, the violation of forced pregnancy, meaning the confinement of a forcibly impregnated person, lies in the denial of the choice whether to stay pregnant. Because the two acts are interconnected, the following observations do not differentiate between them. Essentially, both crimes entail that a person is pregnant against her will, in either forcing her to become or to stay pregnant. The harms suffered are similar, depending on the individual situation and particularly on how long the forcible pregnancy lasts and if it results in childbirth.

225 In

the context of forced marriage, see Bunting and Ikhimiukor 2018; Oosterveld 2011, pp 139–141. 226 See also Raab and Hobbs 2018. 227 ICC Statute, above n 131, Article 68(3). 228 See also Rubio-Marín 2012, p 85.

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In forcing a victim to become or stay pregnant, the perpetrator imposes a variety of physical, psychological, and social consequences upon her:229 The victim is not only subjected to health risks related to the pregnancy, she also faces potentially long-term psychological trauma as well as, depending on the context of the violations, stigmatization and ostracization from her community as well as economic damage. Considering this, the harm suffered by the victims of forced impregnation and/or forced pregnancy differs from and goes beyond that of more general offenses, typically rape and/or confinement. While the crime of rape involves a violation of the victim’s personal integrity and sexual autonomy and as such may cause severe long-term effects, it does not automatically entail consequences related to a pregnancy.230 The same consideration applies to the unlawful confinement or deprivation of personal liberty as such. Thus, the additional harm stemming from the forcible pregnancy is unique and not reflected in more general offenses, whether sexual or non-sexual.231 This is illustrated by the fact that evidence related to the pregnancy or harm suffered by the victim specifically as a result of the impregnation is not necessary in order to prosecute, for example, the crimes of rape and unlawful confinement. In this regard, it might be argued that—in the absence of separate crimes—pregnancy-related consequences are treated as mere by-products of such crimes, particularly of rape, but not as deserving recognition as serious violations in their own right.232

5.4.3 Analysis 5.4.3.1

Forced Pregnancy

In the case of forced pregnancy, the possibility of the combined prosecution of rape and confinement does not reflect the unique harm of being forced to continue a pregnancy at all. In failing to acknowledge the reproductive aspect, such an approach would conceal the essence of the criminal act. In contrast, the inclusion of the specific crime of forced pregnancy constitutes an acknowledgment that victims of the underlying conduct suffered a specific, reproduction-related harm.233 One may argue that the possible prosecution of acts amounting to forced pregnancy under the umbrella of the crime against humanity of other inhumane acts, similarly to

229 See

also Chap. 3, Sect. 3.2.3. also Rubio-Marín 2012, p 85. 231 See also Rubio-Marín 2009, p 81: “[V]iolations of women’s reproductive rights are not typically included or conceptualized as separate violations, even though they represent harms that are unique and distinct from those that result from other forms of sexual violence.” 232 See Eriksson 2000, p 480. 233 Similarly Ongwen 2021, above n 1, para 2722. See also Boon 2000, p 665; Cryer et al. 2019, p 251; Schwarz 2019, p 257; Soh 2006, p 329. 230 See

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forced marriage,234 would also encompass such an acknowledgement, thus rendering a separate crime redundant. However, this approach has several disadvantages: As the crime against humanity of other inhumane acts is a catch-all provision, the individual acts that can be prosecuted under its scope are not explicitly named. Thus, the effect of expressly listed crimes always being “on the checklist” of prosecutors would be absent. Furthermore, though prosecutors could choose to bring charges in individual cases, this would not create the same symbolic condemnation of such conduct as a separate criminalization. In relation to the ICC Statute, this is particularly important because it serves as a model for other international courts’ statutes as well as domestic criminal codes pertaining to offenses under international law. Prosecuting conduct explicitly as forced pregnancy may also benefit the reintegration of the direct victims as well as the children born as a result and counteract the notion that they are “children of the enemy”.235 However, this requires careful attention to the framing of the charges before the ICC, particularly when the relevant conduct is prosecuted under the first special intent alternative of “affecting the ethnic composition of any population”. A further argument in favour of a separate crime of forced pregnancy is that this act has been explicitly condemned in human rights instruments both before and after the adoption of the ICC Statute. Prior to 1998, forced pregnancy was named as a violation of women’s human rights in situations of armed conflict in the Vienna Declaration and Programme of Action, in the Beijing Platform for Action, and in the yearly resolutions of the United Nations Commission on Human Rights on the elimination of violence against women beginning in 1995 and on the rights of the child in 1997 and 1998.236 As to the period after the adoption of the ICC Statute, the CEDAW Committee’s General Recommendation No. 35 of 2017 is particularly noteworthy, as it stipulates that forced pregnancy, among other acts, is a violation of women’s sexual and reproductive health and rights and a form of gender-based violence that may amount to torture.237

5.4.3.2

Forced Impregnation

In the light of the above, it could also be argued that the unique harm suffered by the victim of a forcibly induced pregnancy warrants a separate crime of forced impregnation, as that harm is not adequately captured in the prosecution as the crime of rape. For example, Bassiouni concluded that “forced impregnation should be considered a crime separate from rape and sexual assault”, based on the assertion that the harm suffered by the victim of forced impregnation “is qualitatively and

234 See

Oosterveld 2011, pp 138–139. also Raab and Hobbs 2018. 236 See this chapter, Sect. 5.2.3. 237 United Nations Committee on the Elimination of Discrimination Against Women 2017b, para 18. 235 See

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quantitatively different from that caused by sexual violence alone”.238 However, several differences must be highlighted: First, it may be argued that the danger of impregnation is inherent in many typical (though not all) cases of rape, and thus constitutes a common risk entailed in the crime of rape. What differentiates forced impregnation from rape is the additional intent to impregnate the victim. Whether the impregnation actually occurs is, after the point of forced sexual intercourse, dependent on various factors that the perpetrator is unable to influence or control. In fact, the impregnation does not require further conduct by the perpetrator. The essence of forced impregnation, then, is the forced sexual intercourse with an intent to impregnate the victim. Beyond the practical difficulties of proving such an intent, it may be questioned whether an additional intent element suffices for a separate crime when the conduct is congruent. Grey follows a different approach in relation to the conduct in question. She differentiates between the act of rape as such (“preceding act of penetration”239 ) and the “forcible discharge of semen”.240 However, this approach appears to create an artificial separation of closely linked acts. It may also be called into question whether the “discharge of semen”, in cases of forced sexual intercourse, amounts to “conduct” in the sense that it can be actively controlled by the perpetrator. Thus, it appears more persuasive to categorize the penetration and the discharge of semen as a uniform act. Second, an important difference lies in the crimes that can potentially be used to prosecute the acts of forced pregnancy and forced impregnation. While the underlying act of the confinement (of a forcibly impregnated person) can be prosecuted as a variety of crimes relating to the violation of the personal liberty and freedom to move, these crimes do not reflect the gender-based nature of the act at all. In contrast, the conduct underlying forced impregnation can be prosecuted as rape, which is clearly a gender-based crime. Though this does not automatically encompass the reproductive aspect, there exists a close connection between the violation of sexual autonomy and reproductive autonomy. In fact, as discussed above,241 overlaps between sexualized violence and reproductive violence are very common. Third, in contrast to forced pregnancy, the act of forced impregnation has generally not been explicitly named as a human rights violation in applicable instruments, neither before nor after the adoption of the ICC Statute.242 Though international 238 Bassiouni 2011, p 430, footnote 370. Similarly, see Green et al. 1994, p 237: “[Rape with an intent

to impregnate] must be recognized as a distinct or aggravated offense against the lives, integrity and dignity of women as humans”; Salzmann 1998, p 367: “a gap that requires an amendment”. 239 Grey 2017, p 928. 240 Ibid., p 928, footnote 152. 241 See Chap. 3, Sect. 3.3.1.2. 242 A notable exception is the CEDAW Committee’s General Recommendation no. 30, which lists forced impregnation along with forced termination of pregnancy and forced sterilization as forms of conflict-related gender-based violence which amount to human rights violations, see United Nations Committee on the Elimination of Discrimination Against Women 2013b, para 34. However, in General Recommendation no. 35, the Committee does not mention forced impregnation and instead refers to forced pregnancy and forced continuation of pregnancy as examples for violations

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human rights instruments have paid increasing attention to the potential reproductive consequences of sexual assault, they have done so without explicitly naming the act of forced impregnation. The arguments above speak against a separate crime of forced impregnation. However, this does not mean that it should not be prosecuted as a distinct act. In fact, where an intent to impregnate the victim can be proven, forced impregnation should not only be charged as rape, but also as the crime against humanity of other inhumane acts and, where appropriate, persecution on gender grounds. A further alternative would be to regard the intent to impregnate, or the result of impregnation, as an aggravating circumstance in determining the sentence for a conviction of rape.

5.4.3.3

Other Pregnancy-Related Acts

One may argue that when forced pregnancy is deemed to warrant a separate criminalization, this should also apply to what has been termed “forced maternity” in the literature, i.e. forcing a person to give birth. In this sense, conduct described as forced pregnancy arises to forced maternity when the confinement lasts until the moment of birth. Koenig and Askin argued that this additional crime is necessary because the added harm of an actual childbirth resulting from a forcible impregnation, with all the physical, psychological, social, and economic consequences this might entail, would otherwise be ignored.243 This assertion is correct to the extent that the crime of forced pregnancy does not require childbirth, and thus focuses mainly on the harm suffered during the forcible pregnancy.244 In contrast, the harm suffered with regard to forcible childbirth and ensuing maternity is qualitatively different, with potentially life-long consequences. However, the conduct underlying the proposed crime of “forced maternity” would also be the confinement of a pregnant woman. The only difference to forced pregnancy is a gradual one, namely that confinement lasts up until the point of birth. Thus, all conduct falling under “forced maternity” is also captured by the crime of forced pregnancy.245 The victims of both “forced maternity” and forced pregnancy suffer a violation of the choice whether to continue a pregnancy and, by extension, whether to bear a child. A further distinction by way of separately criminalizing “forced maternity” thus does not seem necessary. When the forcible confinement lasts until the moment of childbirth, this may be seen as an aggravating circumstance to the crime of forced pregnancy.

of women’s sexual and reproductive rights, see United Nations Committee on the Elimination of Discrimination Against Women 2017b, para 18. 243 Koenig and Askin 2000, p 14, footnote 50. 244 See also Kuschnik 2009, pp 355–356, though with reference to both pregnancy and childbirth. 245 In fact, the first conviction of forced pregnancy concerned two victims who both carried the pregnancies to term during the confinement, see Ongwen 2021, above n 1, para 3057; ICC, Prosecutor v Ongwen, Transcript, 22 January 2016, ICC-02/04-01/15-T-21-Red2-ENG WT (Ongwen Transcript 2016), pp 48, 51.

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5.5 The Definition of Forced Pregnancy in the ICC Statute Building upon the negotiating history and the unique harm imposed upon victims of the crime, this section addresses the elements of the crime of forced pregnancy under the ICC Statute.

5.5.1 Protected Value In remarkable clarity, Trial Chamber IX asserted in the Ongwen judgment that “[t]he crime of forced pregnancy is grounded in the woman’s right to personal and reproductive autonomy and the right to family.”246 In the same vein, the Office of the Prosecutor highlighted in its opening statement in the Ongwen trial that “[t]he value protected by the criminalisation of forced pregnancy […] is primarily reproductive autonomy”.247 Similarly, though in less definite terms, Pre-Trial Chamber II stated in its confirmation decision 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.”248 During the confirmation of the charges hearings before Pre-Trial Chamber II, the prosecution also heavily emphasized the victim’s lack of choice on whether to continue the pregnancies resulting from rapes.249

5.5.1.1

The Concept of Protected Values in International Criminal Law

This explicit labelling of the protected value (or legal good, right, or interest) of a crime was identified by Laverty as part of “an emerging trend in international criminal law towards identifying and surfacing the individual values or rights underlying international crimes.”250 In the light of the expressive function of international criminal law and international trials, the identification of specific protected values is of symbolic importance, communicating the message that the international community condemns violations of a certain right both in the abstract and in the specific case, i.e. pertaining to specific victims.251 In this regard, the identification of the underlying

246 Ongwen

2021, above n 1, para 2717.

247 ICC, Prosecutor v Ongwen, Transcript, 7 December 2016, ICC-02/04-01/15-T-27-ENG ET WT,

p 14. See also Ongwen Prosecution’s Pre-Trial Brief 2016, above n 5, para 512, and ICC, Prosecutor v Dominic Ongwen, Prosecution Closing Brief, 24 February 2020, ICC-02/04-01/15, para 162: “These girls and women had no reproductive autonomy.” 248 Ongwen 2016, above n 1, para 99. 249 Ongwen Transcript 2016, above n 245, p 47. 250 Laverty 2018. See also De Vos 2019, p 399. 251 See also Laverty 2018.

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value corresponds with the acknowledgment of a unique harm through separate criminalization.252 Furthermore, the protected value of a crime constitutes its normative basis and informs its interpretation and application throughout the various stages of criminal proceedings. The identification of the value underlying an international crime highlights the relationship between international criminal law and international human rights law as briefly outlined above.253 It emphasizes the individualistic facet of crimes under international law, which exists alongside the collective reach that is inherent to their underlying rationale, namely the protection of peace, security, and the well-being of the world.254 This individualistic facet is manifested in the individual interests protected by a certain crime, and these interests (or values) in turn reflect fundamental human rights.255

5.5.1.2

Reproductive Autonomy as the Value Underlying the Crime of Forced Pregnancy

As rightly observed by Laverty, the explicit mention of reproductive autonomy as the underlying value of the crime of forced pregnancy is particularly progressive in the light of the controversies and perceived “backlash” surrounding the protection of reproductive rights in international law;256 recognizing that reproductive autonomy constitutes a value protected under international law is indeed “almost radical”.257 Furthermore, the ICC’s acknowledgement of reproductive autonomy is noteworthy with regard to the literature on the crime of forced pregnancy under the ICC Statute, in which reproductive autonomy was rarely referred to. Some authors stated that the crime protects the values of bodily integrity and privacy,258 while others referred to the value of bodily integrity in combination with sexual autonomy.259 Some invoked the value of autonomy without limiting it to sexual or reproductive aspects.260 Only few authors, most notably Rosemary Grey,261 referred explicitly to the protection of reproductive freedom or reproductive autonomy.262 Prior to the 252 See

this chapter, Sect. 5.4.2. In this context, see also Ambos 2015, developing a “combined Rechtsgut-harm theory” of international criminal law. 253 See Chap. 1, Sect. 1.4.1.2. 254 ICC Statute, above n 131, preamble para 3. 255 See also Ambos 2013a, pp 304–315; Laverty 2018. 256 See Chap. 3, Sect. 3.4.1.4. 257 Laverty 2018. Similarly Grey 2017, p 925. 258 See Joseph 2008, p 84. See also, though somewhat misleadingly and only in relation to the act of confinement as such, Boon 2000, p 660. 259 See Kuschnik 2009, p 357. 260 See Biehler 2015, p 229 (personal autonomy in the sense of freedom to decide whether or not to bear a child, in combination with bodily integrity); Chinkin 2009, pp 77–78 (“women’s autonomy and bodily integrity”). 261 Grey 2017. 262 See also Werle and Jeßberger 2020, marginal no 1077, stating that the core of the crime is the violation of reproductive, not sexual, autonomy.

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adoption of the ICC Statute, Rhonda Copelon had pointed out that “forced pregnancy appears as an assault on the reproductive self-determination of women”.263 Similarly, Kristen Boon invoked both reproductive freedom and sexual autonomy,264 while Vest and Sutter mentioned the freedom to decide whether, how, and when to reproduce.265 In this context, it should also be noted that reproductive autonomy extends to aspects of bodily integrity, privacy, and sexual autonomy as well. At first glance, however, the definition of the crime in Article 7(2)(f) of the ICC Statute does leave some room for doubt concerning its underlying value. In the light of the reference to an intent to affect the ethnic composition of a population, it could be called into question whether the crime aims to protect the interests of an ethnic group, as opposed to the interests of the individual victim. This point relates to the combined individualistic-collective nature of crimes under international law. While individual crimes are based on violations of fundamental rights of individuals, they also have a collective reach, which is manifested in the contextual element (i.e. the widespread or systematic attack against any civilian population in the case of crimes against humanity or the armed conflict in the case of war crimes) or the group-related dimension (i.e. the intent to destroy a protected group in the case of genocide).266 This latter form of the collective reach—in the sense of a genocide-like grouprelated dimension—also applies to certain crimes against humanity, which have a nexus to the protection of specific groups, namely persecution267 and apartheid.268 Considering the reference to the ethnic composition of a group, the crime of forced pregnancy, both as a war crime and a crime against humanity, also encompasses such a nexus to the protection of a collective value, beyond the respective contextual element. Against this background, Drake heavily criticized the definition in Article 7(2)(f) of the ICC Statute and argued that it framed the crime of forced pregnancy as a crime committed against an ethnic group rather than against an individual woman. According to Drake, the provision does not focus on capturing the unique harm experienced by the individual victim, but primarily the harmful effect on the ethnic group to which she belongs.269 She regarded this as a step backwards from the earlier recognition of forced pregnancy within the human rights discourse, which did not limit the crime to ethnicity-related contexts.270 However, this analysis misses the decisive point: The nexus to the protection of an ethnic group only applies to the first special intent alternative (affecting the ethnic composition of any population). In the second alternative (carrying out other grave violations of international law),

263 Copelon

1994, p 263. 2000, p 655. 265 Vest and Sutter 2014, marginal no 453. See also Eriksson 2000, p 480. 266 See Ambos 2015, pp 319–320. 267 ICC Statute, above n 131, Article 7(1)(h) and Article 7(2)(g). 268 Ibid., Article 7(1)(j) and Article 7(2)(h). 269 Drake 2012, pp 616–618. 270 Ibid., p 605. 264 Boon

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such a nexus is not present.271 Thus, the crime only partly and indirectly protects the interests of an ethnic group.272 The scope of application of the crime is thus not dependent upon a victim’s membership in such an ethnic group. In other words, the crime of forced pregnancy is not (solely) aimed at the protection of ethnic groups. Instead, given that the victim is a member of the collective entity in the sense of the respective contextual element, whether ethnicity-related or not, the crime protects the individual rights of persons with the capacity to be pregnant, namely reproductive autonomy. This conclusion is supported by the drafting history of the crime. Although the impregnation and confinement of women of certain ethnicities in “rape camps” in the former Yugoslavia constituted the historical precedent for the inclusion of the crime of forced pregnancy, it was ultimately decided that the crime should not be limited to situations of “ethnic cleansing”, but also apply to cases involving, for example, “medical” experiments. To summarize, while the crime of forced pregnancy indirectly involves the protection of ethnic groups in one of its two manifestations, it is aimed primarily at the protection of the individual’s reproductive autonomy. Besides the forcibly impregnated and confined woman herself, one might also categorize the children born as a result of forced pregnancy as victims of the crime.273 In this vein, the ICC’s Office of the Prosecutor highlighted in its Policy on Children with regard to forced pregnancy that children born during conflict are “affected in a multi-generational manner”.274 Several scholars also attempted to frame the crime of forced pregnancy and other pregnancy-related violence as crimes against the children born as a result, in addition to the pregnant person.275 However, the children born as a result of forced pregnancy are not the direct victims of the conduct criminalized under the offense, namely the unlawful confinement, because this conduct takes place before birth. Nevertheless, the children face serious physical, psychological, and social consequences; they have thus aptly been labelled as “secondary victims” of forced pregnancy.276 This categorization is important with respect to the ICC reparations mandate, because it allows these children, and not only their mothers, to benefit from reparations in case of a conviction.277 In prosecuting the crime of forced 271 See

also Extraordinary Chambers in the Courts of Cambodia, Prosecutor v Ao An and Yim Tith, Consolidated Decision on the Requests for Investigative Action Concerning the Crime of Forced Pregnancy and Forced Impregnation, 13 June 2016, 004/07-09-2009-ECCC-OCIJ (Ao An and Yim Tith Decision on Investigative Requests 2016), para 69, limiting the analysis to the first intent alternative (which was indeed likely not present in the context of Cambodia, as opposed to the former Yugoslavia) and completely ignoring the second alternative. 272 See also Vest and Sutter 2014, marginal no 453. 273 In this regard, though not specifically in the context of the crime of forced pregnancy, see the Prosecutor’s opening statement in 2016, above n 42, p 35: “There is a whole category of other victims: the children born in captivity resulting from these forced marriages, who sometimes face hostility and taunts as a result of their parentage”. See also DeLaet 2007, pp 131–136; Dowds 2019, pp 232–233; Neenan 2018. 274 The Office of the Prosecutor of the International Criminal Court 2016, para 3, footnote 6. 275 See especially Carpenter 2000a; Weiß 2001, pp 136–137. 276 Daniel-Wrabetz 2007, p 36. 277 See Neenan 2018. In the case against Jean-Pierre Bemba Gombo, an Expert Report recommended the inclusion of children born of rape specifically as victims of the crime of rape and thus as

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pregnancy, it is important that judges and prosecutors act with sensitivity towards the children’s concerns in order to prevent (further) stigmatization. Such an obligation can be derived from the non-discrimination guarantee in Article 21(3), which guides the application and interpretation of the ICC Statute as a whole.278 In this regard, it should also be noted that the harm caused by the crime of forced pregnancy does not lie in the birth of a child as such,279 but in the denial of the freedom of choice. In summary, the value protected by the crime of forced pregnancy is the reproductive autonomy of a person in the form of the choice whether to stay pregnant. This will be taken into account in the interpretation of the crime’s elements in the following subsections.

5.5.2 Preliminary Remarks on the Elements of the Crime Each crime under international law includes material elements, which fall under three categories: a certain conduct, certain consequences of this conduct, and certain circumstances.280 The latter category encompasses the so-called contextual elements, which establish the international dimension of an individual act. For crimes against humanity, the conduct must be committed as part of a widespread or systematic attack directed against any civilian population.281 War crimes require that “the conduct took place in the context of and was associated with an international armed conflict” or “an armed conflict not of an international character”.282 Besides these contextual elements, the actus reus of the crime of forced pregnancy consists of the unlawful confinement of a woman forcibly made pregnant. As acknowledged in the ICC Pre-Trial Chamber’s confirmation decision as well as the Trial Chamber’s judgment against Ongwen, the relevant act is not the impregnation itself, but the confinement.283 Thus, the requirement that the woman was forcibly impregnated is a circumstantial element of the crime.284 It is not directly related to the perpetrator’s conduct. This also means that the direct perpetrator of the crime

beneficiaries of reparations, see ICC, Prosecutor v Jean-Pierre Bemba Gombo, Expert Report, 20 November 2017, ICC-01/05-01/08-3575-Anx-Corr2-Red, paras 48, 102; see also Dowds 2019, pp 231–232. However, since the ICC Appeals Chamber overturned Bemba’s conviction in 2018 (ICC, Prosecutor v Jean-Pierre Bemba Gombo, Appeals Judgment, 8 June 2018, ICC-01/05-01/08 A), the reparations proceedings had to be terminated, ICC, Prosecutor v Jean-Pierre Bemba Gombo, Final Decision on the Reparations Proceedings, 3 August 2018, ICC-01/05-01/08. 278 See Neenan 2018. 279 See also ibid. 280 Werle and Jeßberger 2020, marginal no 515. 281 ICC Statute, above n 131, Article 7(1). 282 E.g. ICC Elements of Crimes, Article 8(2)(a)(i), no. 4, Article 8(2)(c)(i), no. 4. 283 Ongwen 2021, above n 1, paras 2723–2724; Ongwen 2016, above n 1, para 99. 284 See also Cottier and Mzee 2016, marginal no 725; Schwarz 2019, p 264.

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of forced pregnancy, i.e. the person who confined the victim, need not be the same person who impregnated her.285 The mens rea of the crime of forced pregnancy, both as a war crime and a crime against humanity, consists of a general intent regarding all objective elements of the crime under Article 30 of the ICC Statute. Furthermore, it requires a special (or specific) intent of affecting the ethnic composition of any population or of carrying out other grave violations of international law pursuant to Article 7(2)(f) of the ICC Statute.

5.5.3 Woman Forcibly Made Pregnant The actus reus of the crime of forced pregnancy requires that the victim of the act is a “woman forcibly made pregnant”.286 The explicit limitation to women makes forced pregnancy the only gender-specific crime in the ICC Statute.287

5.5.3.1

Pregnancy

The use of the term “woman” in the crime’s definition is problematic. It is not specified whether the term refers to biological characteristics (i.e. sex) or social perceptions (i.e. gender).288 One may object that in the context of a (forcibly induced) pregnancy, the use of the term “woman” ostensibly relates to a person’s physical ability to gestate. Nevertheless, using “woman” as a criterion for the fulfilment of the crime of forced pregnancy entails the danger of excluding those who deviate from the heteronormative binary of “men” and “women”.289 Namely, transgender or intersexual persons290 may be able to become pregnant, but may not self-identify and/or be identified by others as “women”. This could unduly limit the scope of application of the crime of forced pregnancy, because a violation of reproductive autonomy may occur regardless of a person’s gender identity. To avoid such a limitation, the definition of the crime should be amended to refer to a person forcibly made pregnant. Furthermore,

285 Ongwen

2021, above n 1, para 2723; Ongwen 2016, above n 1, para 99. Statute, above n 131, art 7(2)(f). 287 See also Chinkin 2009, p 77; Odio-Benito 2005, pp 165–166. 288 On the difference between sex and gender, see Chap. 1, Sect. 1.3.1. 289 See also Askin 1997, p 275, qualifying that pregnancy-related crimes are female-specific because men cannot get pregnant “at this stage of technology”. 290 See generally Adamietz 2011, pp 29–47: “Transgender” describes persons whose gender identity differs from the sex assigned at birth; “intersex” describes a variety of conditions in which a person’s anatomy does not fit within the male/female binary. 286 ICC

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this formulation would also counteract the danger that a certain minimum age might be required, as the term “woman” might be interpreted to exclude “girls”.291 The crime of forced pregnancy can only be committed against a person who is actually pregnant. This entails that it is not sufficient to confine a victim while attempting to impregnate her.292 The confinement can only be punished under the ambit of forced pregnancy from the moment a pregnancy occurs onwards. This is in contrast to earlier proposals, which extended to the criminalization of forced (or forcible) impregnation: This crime would also have covered the act of impregnation as such, including attempts to impregnate. However, the delegations decided not to include this crime in the ICC Statute.293 The requirement of an actual pregnancy also entails that the crime can only be committed against persons who are able to become pregnant, as the state of pregnancy is a precondition of the crime.294 In this context, it deserves emphasis that the crime only requires that the pregnancy be forcibly induced, not that the pregnant person rejected the pregnancy.295 It is thus not necessary to show that the woman would have obtained an abortion, had she had access to it.

5.5.3.2

Impregnation Resulting from Rape

With regard to the “forcible” nature of the impregnation, it is generally recognized that this element does not require an act of violence, but also includes coercive circumstances.296 A pregnancy resulting from an act of a consensual nature without forcible means, however, does not fall under the ambit of the crime of forced pregnancy. In order to ascertain whether an impregnation was forcible in the sense of Article 7(2)(f) of the ICC Statute, it is not necessary to prove that all the elements of the crime of rape are present. Nevertheless, when an invasion of the victim’s body resulting in an impregnation amounts to an act of rape in the sense of the ICC Statute,297 this would be sufficient for a forcible impregnation. This connection between the crimes of rape and forced pregnancy warrants a short review of the relevant elements of the crime of rape under international law. 291 See

Vest and Sutter 2014, marginal no 553, pointing out that this is the reason why the Swiss Criminal Code uses the formulation “person of female sex” (“Person weiblichen Geschlechts”) instead of “woman”. 292 See also Boon 2000, p 659; Joseph 2008, p 83; Short 2003, p 524. 293 See this chapter, Sect. 5.3.5.2. 294 See Boon 2000, p 660; Vest and Sutter 2014, marginal nos 553–554. 295 See Askin 2005, p 144: “Even if the woman bears, keeps and loves the child born of the rape, she was still the victim of forced pregnancy.” 296 See Ambos 2013b, p 102; Boon 2000, pp 660–661; Buehler 2002, p 163; Schwarz 2019, p 260. See also Askin 1999b, p 55, footnote 58, and Kuschnik 2009, p 355, asserting that the use of the term “forced” instead of “enforced” implies violence, threat of violence, and coercion. 297 As a crime against humanity: ICC Statute, above n 131, Article 7(1)(g); ICC Elements of Crimes, Article 7(1)(g)-1. As a war crime: ICC Statute, Article 8(2)(b)(xxii) and Article 8(2)(e)(vi); ICC Elements of Crimes, Article 8(2)(b)(xxii)-1 and Article 8(2)(e)(vi)-1.

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The specific requirements of rape remain contested, and the international jurisprudence in this regard has been inconsistent, particularly with regard to the relevance of force or coercion on the one hand and the absence of consent on the other hand. Both before and after the adoption of the ICC Statute, the ad hoc tribunals for Rwanda and the former Yugoslavia issued several decisions on the interpretation of the actus reus of the crime of rape, which at times stipulated conflicting requirements. Three decisions stand out: The ICTR’s Akayesu judgment constituted the first conviction for rape as a crime under international law. The judges defined rape as a “physical invasion of a sexual nature, committed on a person under circumstances which are coercive”.298 While acknowledging that certain national jurisdictions defined rape as “non-consensual intercourse”,299 the judges decided to lay the emphasis on “coercive circumstances” instead of the absence of consent. Pertaining to such circumstances, they stated that physical force was not required, but that “[t]hreats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances, such as armed conflict or the military presence”.300 The approach adopted in Akayesu is remarkably broad and has been criticized as such.301 Accordingly, the ICTY deviated to a certain degree from the definition developed in Akayesu in its Furundžija judgment.302 With regard to the circumstances rendering an act of sexual penetration criminal, the Trial Chamber referred to “coercion or force or threat of force against the victim or a third person.”303 The basis for this finding was a broad survey of 17 domestic jurisdictional approaches to the elements of the crime of rape. The Trial Chamber concluded that there was generally a requirement of “an element of force, coercion, threat, or acting without the consent of the victim” and that “force is given a broad interpretation and includes rendering the victim helpless.”304 However, the judges followed the Akayesu precedent in requiring an (albeit more refined) element of coercion instead of non-consent.305 The sole focus on force, threat of force, or coercion was set aside by the ICTY Trial Chamber in its Kunarac judgment, in which it again extensively analysed the

298 ICTR, Prosecutor v Jean-Paul Akayesu, Judgment, 2 September 1998, ICTR-96-4-T (Akayesu 1998), paras 598, 688. See generally Adams 2013, pp 312–313; Dowds 2020, pp 89–91; Hall et al. 2016, marginal no 56; MacKinnon 2006; Schomburg and Peterson 2007, p 132; Schwarz 2019, pp 176–181. 299 Akayesu 1998, above n 298, para 596. 300 Ibid., para 688. 301 Hall et al. 2016, marginal no 56; Schwarz 2019, pp 179–180. 302 ICTY, Prosecutor v Anto Furundžija, Judgment, 10 December 1998, IT-95-17/1-T (Furundžija 1998). See generally Adams 2013, pp 313–314; Cottier and Mzee 2016, marginal no 674; Dowds 2020, pp 91–93; Schomburg and Peterson 2007, p 133; Schwarz 2019, pp 181–184. 303 Furundžija 1998, above n 302, para 185. 304 Ibid., para 180. 305 See Schwarz 2019, p 184.

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elements of the crime of rape.306 According to the Trial Chamber, the basic principle underlying domestic rape laws is the penalization of violations of sexual autonomy,307 and thus the decisive element of rape is the absence of consent.308 The victim’s nonconsent to the penetration “may be evidenced by the presence of the various factors […] such as force, threats of force, or taking advantage of a person who is unable to resist.”309 Thus, while the Kunarac Trial Chamber did not disagree with the results of the interpretation offered by the Furundžija Trial Chamber as such, it shifted the focus from the (objective) presence of force or coercion towards the (subjective) finding of non-consent. Against this background, the ICC Preparatory Commission’s negotiations on the constitutive elements of rape were rather controversial and time-consuming.310 The delegations eventually settled on a mixed approach, combining elements of force, coercion, and non-consent, but with a focus on the presence of “force, threat of force or coercion”.311 This was heavily influenced by the jurisprudence of the ad hoc tribunals in general, while most closely following the Furundžija approach.312 The Elements of Crimes stipulate that there are four scenarios in which an invasion of the victim’s body313 falls within the ambit of the crime of rape: when it is committed (1) by force, (2) by threat of force or coercion (which includes “fear of violence, duress, detention, psychological oppression or abuse of power”), (3) by taking advantage of a coercive environment, or (4) against a person incapable of giving genuine consent.314 While the first three scenarios follow the Akayesu and Furundžija approaches in focusing on the objective circumstances of the act, the fourth scenario takes into consideration the victim’s (subjective) ability to consent, and thus to a certain extent follows the Kunarac approach. The Bemba Trial Chamber, however, clarified that the absence of consent is not a requirement of the crime of rape.315 306 ICTY,

Prosecutor v Dragoljub Kunarac, Radomir Kovaˇc and Zoran Vukovi´c, Judgment, 22 February 2001, IT-96-23-T and IT-96-23/1-T (Kunarac et al. 2001), paras 436–460. See generally Adams 2013, pp 314–317; Cottier and Mzee 2016, marginal nos 681–686; Dowds 2020, pp 94–97; Hall et al. 2016, marginal no 57; Schomburg and Peterson 2007, pp 133–136; Schwarz 2019, pp 184–191; Werle and Jeßberger 2020, marginal no 1069. 307 Kunarac et al. 2001, above n 306, para 457. On the use of the term “sexual autonomy”, see Grewal 2012, pp 379–380. 308 Kunarac et al. 2001, above n 306, para 460: “where such sexual penetration occurs without the consent of the victim”. 309 Ibid., para 458. 310 See La Haye 2000, pp 186–190. 311 ICC Elements of Crimes, Article 7(1)(g)-1, no. 2; Article 8(2)(b)(xxii)-1, no. 2; Article 8(2)(e)(vi)-1, no. 2. See Adams 2013, p 331; Schwarz 2019, pp 210–213. 312 See also Grey 2019, p 118; Schwarz 2019, p 212. 313 As specified in ICC Elements of Crimes, Article 7(1)(g)-1, no. 1; Article 8(2)(b)(xxii)-1, no. 1; Article 8(2)(e)(vi)-1, no. 1. 314 See ICC Elements of Crimes, Article 7(1)(g)-1, no. 2; Article 8(2)(b)(xxii)-1, no. 2; Article 8(2)(e)(vi)-1, no. 2. 315 ICC, Prosecutor v Jean-Pierre Bemba Gombo, Judgment, 21 March 2016, ICC-01/05-01/08, para 105: “The Chamber notes that the victim’s lack of consent is not a legal element of the crime of rape under the Statute.” Similarly ICC, Prosecutor v Germain Katanga, Judgment, 7 March 2014,

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The ICC’s focus on the use of force or coercive circumstances, as opposed to the lack of the victim’s consent, remains controversial in the feminist legal discourse. A human rights-based approach to the criminalization and prosecution is generally focused on the victim’s opposing will, i.e. the element of non-consent as a manifestation of the underlying violation of sexual autonomy.316 Nevertheless, the specific context of the commission of crimes under international law deserves emphasis: In macro-criminal situations such as armed conflicts or civil war-like scenarios, coercive circumstances are typically omnipresent.317 In fact, the presence of the international element of war crimes (armed conflict) and crimes against humanity (widespread or systematic attack against any civilian population) often establishes an environment in which genuine consent is no longer possible.318 Instead of focusing on the victim’s will and behaviour, which also entails the danger of re-traumatization, it thus appears appropriate that the ICC Statute and Elements of Crimes emphasize the objective circumstances when it comes to the prosecution of sexualized crimes.319 At the same time, this approach entails the danger of perpetuating the traditional war/peace binary,320 which feminist international legal scholars have criticized for decades. The element of consent in the definition of the crime of rape, whether under international or domestic law, connects the crime to the protection of sexual autonomy.321 In this context, Dowds argued that “the protection of sexual autonomy requires a context-sensitive definition of rape which retains the notion of consent as a central feature while being cognisant of the broader circumstances within which sexual interactions take place.”322 Indeed, the argument that genuine consent cannot be given during “war” would mean that the exercise of sexual autonomy is entirely dependent upon the objective circumstances, which entails the denial of the person’s agency ICC-01/04-01/07, para 965: “The Chamber notes that, save the very specific situation of a person whose ‘incapacity’ was ‘tak[en] advantage of’, the Elements of Crimes do not refer to the victim’s lack of consent, and therefore this need not be proven.” See also Schwarz 2019, pp 213–217. 316 See Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, opened for signature 11 May 2011, CETS no. 210 (entered into force 1 August 2014), Article 36. See also Platform of Independent United Nations and Regional Expert Mechanisms on Violence Against Women and Women’s Rights, Absence of Consent Must Become the Global Standard for Definition of Rape, 25 November 2019, https://www.ohchr.org/EN/New sEvents/Pages/DisplayNews.aspx?NewsID=25340 (accessed 24 October 2020). 317 See e.g. ICTY, Prosecutor v Dragoljub Kunarac, Radomir Kovaˇ c and Zoran Vukovi´c, Appeals Judgment, 12 June 2002, IT-96-23-A and IT-96-23/1-A (Kunarac et al. 2002), para 130 (“[I]t is worth observing that the circumstances […] that prevail in most cases charged as either war crimes or crimes against humanity will be almost universally coercive. That is to say, true consent will not be possible.”); Akayesu 1998, above n 298, para 688 (“coercion may be inherent in certain circumstances, such as armed conflict or the military presence”). See also Schomburg and Peterson 2007, pp 138–140. 318 See Biehler 2015, pp 188–191; Schomburg and Peterson 2007, p 138; Schwarz 2019, pp 229, 261; Zimmermann and Geiß 2018, marginal no 151. 319 See also Schwarz 2019, pp 229–230. 320 See also Dowds 2020, p 148. 321 See Grewal 2012. 322 Dowds 2020, p 169.

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in conflict situations, reducing her to a passive victim.323 Taking into account the protected value of sexual autonomy as well as the typical features of macro-criminal situations, an approach combining objective and subjective factors is preferable. Regardless of this point of criticism pertaining to the definition of rape under the ICC Statute, it should be noted that when the impregnation occurs in a state of confinement, as was the case in the “rape camps” in the former Yugoslavia, there is generally no room for genuine consent.324 Unlawful confinement as required under the crime of forced pregnancy correlates with a coercive environment, which satisfies the requirement of forcibility. It must further be shown that the impregnation actually resulted from the act of rape. This will often be unproblematic in situations where the victim is impregnated during the confinement, but may prove difficult when a person who is already pregnant is subsequently confined. In any case, it is important to note that it will generally not be necessary to ascertain who exactly impregnated the victim. Particularly in situations of repeated rapes, as they were committed in the “rape camps” in the former Yugoslavia, any impregnation resulting from these acts must be deemed “forcible”. It also deserves emphasis that the element of forcible impregnation does not require the presence of an intent to impregnate. Thus, it does not need to be proven that the person who impregnated the victim (who is not necessarily the perpetrator of the crime of forced pregnancy) intended to do so.

5.5.3.3

Other Forms of Forcible Impregnation

Many authors have argued that the crime of forced pregnancy is not limited to pregnancies resulting from acts of rape. In fact, while the actus reus does require a forcible impregnation, it is not explicitly limited to rape in the sense of Article 7(1)(g) of the ICC Statute. “Forcible” must be interpreted in the light of Article 7(1)(g)-1, no. 2 of the ICC Elements of Crimes, meaning that it also includes, for example, duress, psychological oppression, and abuse of power. Thus, “forcible” is not limited to actual physical violence.325 The most frequently mentioned example for a form of forcible impregnation other than rape is artificial insemination.326 In the light of the history of the crime of forced pregnancy, this interpretation deserves support. During the negotiations, the “medical” experiments conducted by the Nazis, which—as shown above—included forced impregnations, were referred to327 and were clearly intended to be covered by the crime, particularly with regard to the second special intent alternative. When 323 See

also Engle 2005, pp 803–806. Grewal 2012, p 393; Schwarz 2019, p 261. 325 See Ongwen 2021, above n 1, para 2725. See also Boon 2000, p 661; Markovic 2007, p 442. 326 See Boon 2000, p 661; Buehler 2002, p 163; Cottier and Mzee 2016, marginal no 725; Paul 2008, p 190. See also Goldstein 1993, p 4, footnote 7. 327 See Bedont 1999, pp 198–199; Bedont and Hall-Martinez 1999, p 74; Cottier and Mzee 2016, marginal no 727. 324 See

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an artificial insemination is conducted without the victim’s informed consent, the impregnation is “forcible” in the sense of Article 7(2)(f) of the ICC Statute. Furthermore, some authors have referred to withholding access to contraception or preventing women from controlling their reproductive cycles as a form of forcible impregnation.328 Forcible acts in relation to the use of contraception have rarely been discussed with regard to international criminal law. An exception is De Vos, who analysed the potential for punishing the act of forced contraception under international criminal law, arguing that it may fall under the provision of “other inhumane acts”.329 Here, however, the opposite act is in question, namely preventing a person from using contraception instead of forcing it on her. It must be noted that the forced prevention of access to contraception or control of the reproductive cycle is not a form of forcible impregnation as such, because this act is not sufficient to bring about an impregnation. It is only a preliminary circumstance to the act actually resulting in a pregnancy, namely sexual intercourse or artificial insemination. However, the fact that a person was prevented from using contraception may serve as evidence to establish that the subsequent intercourse or insemination was non-consensual and, in the light of the interpretation given above, forcible.

5.5.4 Unlawful Confinement As mentioned above, the criminal act constituting the actus reus of the crime of forced pregnancy is not the forcible impregnation as such, but the unlawful confinement.330 Yet some scholars somewhat misleadingly asserted that the crime of forced pregnancy extends to two separate acts.331 Christine Chinkin, for example, stated that forced pregnancy “comprises two separate violent acts, forcible impregnation, that is rape, and the forced carrying of the foetus through to birth, through detention and denial of access to abortion.”332 Others declared that “[t]he crime of forced pregnancy combines both (en)forced impregnation (pregnancy as a result of rape or some involuntary medical procedure) as well as (en)forced maternity (being forced to carry the pregnancy to term)”,333 or that “[f]orced pregnancy is accomplished by impregnating a woman” and then detaining her.334 328 See Boon 2000,

p 661; Buehler 2002, p 163. See also Goldstein 1993, p 4: “Forcible removal of a woman’s IUD or contraceptive implant, or destruction of other means of birth control or access to birth control, would constitute evidence of intent to impregnate.” 329 De Vos 2016. 330 See Cottier and Mzee 2016, marginal no 726; Schwarz 2019, p 259. 331 See Bedont 1999, p 197; Lobato 2016, p 7. See also this chapter, Sect. 5.3.5.2. 332 Chinkin 2009, p 77. 333 Cottier and Mzee 2016, marginal no 720. See also Ambos 2013b, p 102; Koenig and Askin 2000, p 14, footnote 50. This assertion was also cited by the Office of the Prosecutor in its Pre-Trial Brief, see Ongwen Prosecution’s Pre-Trial Brief 2016, above n 5, para 512, footnote 1339. 334 Short 2003, p 512.

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However, the structure of the offense entails that the forcible impregnation is merely a preliminary act, which would potentially be punishable in its own right, for example as rape.335 The crime of forced pregnancy also does not require that the perpetrator himself forcibly impregnated the victim; it is also possible that another person committed the forcible impregnation.336 In this regard, it could be argued that the label of the offense—forced pregnancy—is misleading, because it refers to the state of being of the victim, not the criminalized conduct. A better label for the offense might be drawn from the CEDAW Committee, which has used the term “forced continuation of pregnancy”.337 However, the Committee also uses “forced pregnancy” and has not clarified the scope of the terms or their relationship to one another. The term “forced pregnancy” is still the most commonly used one in both the international criminal legal discourse and the international human rights discourse.

5.5.4.1

Definition of Confinement

While Article 7(2)(f) of the ICC Statute requires the confinement of the victim, neither the Statute itself nor the Elements of Crimes give further details on what constitutes confinement. In the literature, two suggestions have been made: Some authors referred to the war crime of unlawful confinement (Article 8(2)(a)(vii) of the ICC Statute).338 In the Elements of Crimes, the war crime of unlawful confinement requires that the victim be confined “to a certain location”.339 In this regard, Kristen Boon clarified that the actual place of the confinement is irrelevant; instead, she asserted that the decisive factor is that the victim is not at liberty to leave.340 Others pointed to the crime against humanity of “other severe deprivation of physical liberty in violation of fundamental rules of international law” (Article 7(1)(e) of the ICC Statute), though without requiring that the deprivation of liberty be severe.341 With this qualification in mind, there appears to be no substantial difference between “confinement to a certain location” and “deprivation of physical liberty”. With a view to the negotiating history of the crime, it should be noted that the more restrictive requirement of “imprisonment within a confined area” was proposed 335 See

Schwarz 2019, p 259. Biehler 2015, p 229; Buehler 2002, p 163; Cottier and Mzee 2016, marginal no 725; De Brouwer 2005, p 146; Hall et al. 2016, marginal no 138; Meseke 2004, p 227; Vest and Sutter 2014, marginal no 561; Werle and Jeßberger 2020, marginal no 1077. Differently Kuschnik 2009, pp 356–357, who requires that the perpetrator cumulatively impregnated and confined the woman, but does not give any reasons for this assertion. 337 United Nations Committee on the Elimination of Discrimination Against Women 2017b, para 18. 338 See Boon 2000, p 662; Markovic 2007, p 442, footnote 24. 339 ICC Elements of Crimes, Article 8(2)(a)(vii)-2, no. 1. 340 Boon 2000, p 662. 341 See Ambos 2013b, p 102; Buehler 2002, p 162; Hall et al. 2016, marginal no 137; Vest and Sutter 2014, marginal no 558. See also Ongwen 2021, above n 1, para 2724. 336 See

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by the United States during the PrepCom negotiations for the Elements of Crimes regarding forced pregnancy,342 but it was rejected. Thus, “confinement” should be understood broadly as any deprivation of physical liberty.343

5.5.4.2

Relevant Time Frame of the Confinement

The definition of the crime of forced pregnancy also does not clarify how long the confinement must last, and at which point during the pregnancy it must take place. Regardless of the duration of time, it is not necessary that the forcible impregnation occur during the confinement.344 As explained above, the forcible impregnation is a preliminary act that is not necessarily related to the confinement as such. For an act of confinement to fall under the crime of forced pregnancy, the relevant time frame begins at the point where the perpetrator realizes that the victim may be pregnant.345 It has also been pointed out that the confinement does not need to last until the termination of the pregnancy,346 be it by way of birth, miscarriage, or abortion. This has also been acknowledged by the ICC’s Office of the Prosecutor, who stated in the Ongwen confirmation hearings that the essence of the crime is the forced experience of pregnancy and not the result of the forced pregnancy in the form of giving birth. There is no requirement for the woman to be confined for the full term of the pregnancy. What is simply required is that she be confined for a period of time while she is pregnant.347

This interpretation is correct, because the actus reus of the crime does not require a result, i.e. the birth of a child or the actual prevention of an abortion.348 For the same reason, Carmela Buehler’s assertion that the confinement has to last either until termination of the pregnancy or until an abortion would be impossible “for legal or medical reasons”349 must be rejected. Furthermore, Buehler’s reliance on legal or medical impossibility is not persuasive. The legal regulations on abortion heavily vary between states. Some states do not allow abortions under any circumstances while in others, the law does not regulate abortion access.350 Thus, the requirement of impossibility for legal reasons would be impracticable. Similarly, it is difficult to determine 342 Preparatory

Commission for the International Criminal Court 1999a, p 6.

343 See Cottier and Mzee 2016, marginal no 726; De Brouwer 2005, p 145; Schwarz 2019, p 261. See

also Buehler 2002, p 162, deeming it sufficient when the forcibly impregnated woman is practically hindered to leave because she is surrounded by enemy territory. 344 See Ambos 2013b, p 102; Boon 2000, p 662; Schwarz 2019, p 260. 345 See also Boon 2000, pp 662–663; Markovic 2007, p 442, both referring to when the woman is “thought to be pregnant”. 346 See Boon 2000, p 662; Buehler 2002, p 162. 347 Ongwen Transcript 2016, above n 245, p 49. 348 See also Schwarz 2019, pp 262–263. 349 Buehler 2002, p 162. 350 See Center for Reproductive Rights, The World’s Abortion Laws, https://reproductiverights.org/ worldabortionlaws (accessed 24 October 2020).

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when an abortion would be medically impossible. Recent debates surrounding the so-called late-term abortions illustrate that this is a political issue more than it is a medical one.351 In fact, authors who rely on the point at which abortions are medically impossible or unsafe352 have not clarified which criteria should be used to make this determination. Since the crime of forced pregnancy requires that the victim is a pregnant person, the relevant time frame for the commission of the crime begins with impregnation and ends with termination of the pregnancy. Thus, confinement before the impregnation and after the birth or other form of termination of the pregnancy does not fulfil the actus reus of the crime. Within this period, it is not necessary to prove that the confinement lasted for any minimum time period. This interpretation is confirmed by the fact that in contrast to the “deprivation of physical liberty” (Article 7(1)(e) of the ICC Statute), the confinement as an element of the crime of forced pregnancy does not need to be “severe”. The requirement of severity entails that a deprivation of liberty for only a short period of time would generally not be sufficient under Article 7(1)(e),353 in contrast to the confinement under Article 7(2)(f) of the ICC Statute. Furthermore, the structure of the crime, requiring the existence of a special intent rather than an objective result, speaks against the requirement of a minimum time period.354 To summarize, the confinement must take place between the impregnation and the termination of the pregnancy. Within this time frame, any period is sufficient to fulfil the element of “confinement”.355

5.5.4.3

Unlawfulness

Furthermore, Article 7(2)(f) of the ICC Statute requires that the confinement be unlawful. However, the definition does not clarify against which standard the unlawfulness of the confinement is to be assessed. In this regard, Markovic commented that a consideration of “whether suspects have violated their own nation’s abortions laws” would be necessary.356 In the light of the structure of the crime, this interpretation is not persuasive. The requirement of “unlawfulness” is clearly connected to the confinement as such, not the denial of an abortion or, more generally, the pregnancy. It was precisely the fact that domestic abortion laws often vary considerably 351 See

Belluck, What is Late-Term Abortion? Trump Got it Wrong, New York Times, 6 February 2019, https://www.nytimes.com/2019/02/06/health/late-term-abortion-trump.html (accessed 24 October 2020). 352 See Short 2003, p 510, footnote 44. 353 See Ambos 2013b, p 89; Werle and Jeßberger 2020, marginal no 1045. See also Hall and Stahn 2016, marginal no 50, pointing to the period of time as one element of a case-by-case assessment of severity. 354 See Schwarz 2019, pp 262–263. 355 See also Boon 2000, pp 662–663; De Brouwer 2005, pp 145–146. Similarly Vest and Sutter 2014, marginal no 560, who only exclude “Bagatellfälle” (insignificant cases). 356 Markovic 2007, pp 447–448.

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which prompted the delegations involved in the negotiations to clearly detach the criminalization of forced pregnancy from the domestic legal sphere. Accordingly, most scholars referred to “international law and standards”357 when interpreting the requirement of “unlawfulness”, though for different reasons. Hall, Powderly, and Hayes drew an analogy to the crime of torture: In this case, it is generally accepted that the lawfulness of sanctions is determined by international, and not national, law.358 Conversely, Cottier and Mzee pointed out that this interpretation is also used in other parts of the ICC Statute, though without referring to specific provisions.359 It is suggested here that the interpretation of unlawfulness must be conducted with a view to the nature of the offense and its contextual element. Although crimes against humanity and war crimes have increasingly been synchronized in their scope and interpretation, they have different origins and follow different purposes. Concerning forced pregnancy as a crime against humanity, one may refer to the crimes against humanity of “severe deprivation of liberty in violation of fundamental rules of international law”,360 of deportation or forcible transfer “without grounds permitted under international law”,361 and of persecution, which is defined as “the intentional and severe deprivation of fundamental rights contrary to international law”.362 In the case of deprivation of liberty, this clause has been interpreted to include, at a minimum, the right to be free from arbitrary detention as well as the right to a fair trial.363 Generally, unlawfulness in this context should be understood to refer to the principles of international human rights law.364 Conversely, in the context of the war crime of forced pregnancy, the interpretation of unlawfulness should be guided by international humanitarian law, namely the principles developed for the war crime of unlawful confinement.365 In this case, the term “unlawful” is interpreted to refer to violations of Geneva Convention IV.366 Essentially, under this framework the deprivation of liberty is lawful only when it is necessary in the light of protecting the security of the detaining entity and when the person’s procedural rights are respected. The interpretation put forward above entails that confining a person in accordance with international human rights law or international humanitarian law, respectively, 357 Ambos

2013b, p 102; Buehler 2002, p 162; Cottier and Mzee 2016, marginal no 726; Hall et al. 2016, marginal no 137. See also Schwarz 2019, p 262. 358 Hall et al. 2016, marginal no 137, footnote 840, citing United Nations Economic and Social Council 1988, para 42: “It is international law and not domestic law which ultimately determines whether a certain practice may be regarded as ‘lawful’.” 359 Cottier and Mzee 2016, marginal no 726. 360 ICC Statute, above n 131, Article 7(1)(e). 361 Ibid., Article 7(2)(d). 362 Ibid., Article 7(2)(g). 363 See Hall and Stahn 2016, marginal no 51. See also Werle and Jeßberger 2020, marginal no 1046. 364 This approach was also put forward by the Ongwen Trial Chamber, see Ongwen 2021, above n 1, para 2724, footnote 7179. 365 ICC Statute, above n 131, Article 8(2)(a)(vii). 366 See Dörmann 2016, marginal no 157; Werle and Jeßberger 2020, marginal nos 1326–1328.

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would not fulfil the actus reus of the crime of forced pregnancy.367 However, some commentators proposed that this only apply as long as the woman has access to appropriate reproductive health services, including abortion.368 This raises broader questions with regard to the relation between the confinement and abortion access. The definition of the crime does not directly criminalize the denial of access to an abortion, but instead refers to the confinement of a woman forcibly made pregnant. However, the other elements of the crime (including the special intent and the clause on national laws relating to pregnancy) listed in Article 7(2)(f) of the ICC Statute as well as the negotiating history make clear that the denial of the choice whether or not to continue a forcibly induced pregnancy is precisely the essence of the crime of forced pregnancy. Based on these considerations, the crime would not be fulfilled in situations where the confined person is granted this choice, i.e. when effective access to reproductive health services including safe abortion as well as the necessary information, counselling, and post-abortion care is ensured. Of course, the confinement could still be punishable as other crimes, for example the crime against humanity of severe deprivation of liberty369 or the war crime of unlawful confinement.370 In the opposite scenario, when the confinement as such is lawful but the confined woman is not granted access to reproductive health services, the lawfulness of the confinement must be assessed in the light of international humanitarian law and international human rights law. International humanitarian law affords special protection to pregnant women.371 In particular, Article 91 of Geneva Convention IV states that “[m]aternity cases […] must be admitted to any institution where adequate treatment can be given and shall receive care not inferior to that provided for the general population”. Furthermore, as elaborated on above, the right to health as protected under various human rights treaties includes the right to access to safe and effective sexual and reproductive health services.372 In the light of the interests protected by the crime of forced pregnancy, the denial of access to such health services, which would also entail a denial of the choice whether to continue the pregnancy or not, would thus render the confinement unlawful and fulfil the actus reus of the crime.

367 See

Cottier and Mzee 2016, marginal no 726. Cottier and Mzee 2016, marginal no 726; Schwarz 2019, p 262. Similarly Vest and Sutter 2014, marginal no 559. 369 ICC Statute, above n 131, Article 7(1)(e). 370 Ibid., Article 8(2)(a)(vii). 371 See generally Gardam and Jarvis 2001, pp 65–68. 372 See Chap. 3, Sect. 3.4.1. In particular, see United Nations Committee on Economic, Social and Cultural Rights 2016, paras 11–21; United Nations Committee on the Elimination of Discrimination Against Women 1999, para 31(b). 368 See

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5.5.5 General Intent, Article 30 of the ICC Statute Article 30 establishes the subjective requirements for all crimes under the ICC Statute. Generally, this means that criminal liability requires that the material elements were committed “with intent and knowledge” (Article 30(1) of the ICC Statute). In the two following paragraphs, different requirements are stipulated for the different types of objective elements, i.e. conduct, circumstances, and consequences. The act of confinement represents the conduct element of the crime of forced pregnancy. The necessary subjective element relating to the conduct is laid down in Article 30(2)(a) of the ICC Statute, which requires that the “person means to engage in the conduct”, i.e. that the conduct was the result of the perpetrator’s voluntary action.373 As mentioned above, the objective requirement of a forcible impregnation does not describe the relevant conduct for the crime of forced pregnancy, but constitutes a circumstantial element. In this case, Article 30(3) of the ICC Statute applies, meaning that the perpetrator must have “awareness that a circumstance exists”.374 This entails that the perpetrator must be aware (1) that the victim is actually pregnant, and (2) that the pregnancy was induced by forcible means. In the light of the clear wording of Article 30(3) of the ICC Statute (“awareness”), it is not sufficient when the perpetrator deems it possible that the victim is pregnant, for example when he or she knows that the victim was repeatedly raped.375 Similarly, merely deeming it possible that a pregnancy was forcibly induced is not sufficient. It follows that the requirement of awareness that the victim was forcibly impregnated is rather strict. In the early stages of pregnancy, there is often a degree of uncertainty whether a person is actually pregnant.376 In this regard, a perpetrator could argue he or she was unaware of the pregnancy since the person’s appearance had not noticeably changed. However, this objection would likely not be persuasive in the later stages of pregnancy. Similarly, a perpetrator could object that he or she was not aware of the forcible circumstances of the impregnation when another person committed it.377 However, as already stated above, it deserves emphasis that macro-criminal contexts such as the commission of war crimes and crimes against humanity are typically associated with coercive environments in which there is no room for genuine consent.378 When the perpetrator 373 See

Werle and Jeßberger 2020, marginal no 544.

374 See also Ongwen 2016, above n 1, para 99 (“required that the perpetrator knows that the woman

is pregnant and that she has been made pregnant forcibly”); Schwarz 2019, pp 263–264. Schwarz 2019, p 264; Vest and Sutter 2014, marginal no 576. But see also Kuschnik 2009, p 358, who seems to argue that general knowledge that unprotected sexual intercourse may lead to a pregnancy could be sufficient. However, Kuschnik’s reference to Askin 1997, p 399, is misleading, because Askin actually stated that “[g]eneral knowledge that rape may possibly result in pregnancy is not sufficient to infer intent” and also because the ICC Statute had not been adopted at the time of her writing. 376 See also Vest and Sutter 2014, marginal no 555. 377 See Markovic 2007, p 445. 378 See particularly Kunarac et al. 2002, above n 317, para 130. 375 See

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was aware that the impregnation occurred in such a coercive environment, this would be sufficient to establish awareness of the forcible means.379

5.5.6 Special Intent, Article 7(2)(f) of the ICC Statute 5.5.6.1

General Remarks

The requirements of Article 30 of the ICC Statute apply only “unless otherwise provided”. In establishing further subjective elements, Article 7(2)(f) can be seen as such a deviation from the standard requirements by way of narrowing criminal liability.380 In the literature, the terms “special intent”381 and “specific intent”382 have been used to describe the added subjective requirements, though without any material differences.383 The Ongwen Pre-Trial Chamber also used the term “special intent”, while the Trial Chamber referred to both “special” and “specific” intent.384 Essentially, both terms indicate that the subjective requirements go beyond the general requirements for crimes under the ICC Statute.385 Furthermore, as an additional subjective element, the special intent does not correspond with any objective element, meaning that it is not necessary to prove that the ethnic composition of the group was actually affected or that a grave violation of international law actually occurred.386 As clearly established in the Ongwen confirmation decision and judgment, the special intent requirement relates not to the impregnation, but to the act of confinement. Thus, it must only be proven that the confinement—not the impregnation—was carried out with one of the two special intent variations listed in Article 7(2)(f) of the ICC Statute.387 This interpretation deserves support in the light of the wording of the crime’s definition, which requires “the unlawful confinement of a woman forcibly made pregnant, with the intent of […]”. The use of the comma between the phrase “forcibly made pregnant” and the intent requirements indicates that there is no direct connection between these elements.388 379 On the subjective requirements regarding normative circumstantial elements, see generally Werle

and Jeßberger 2020, marginal no 552. ibid., marginal no 569. 381 Cottier and Mzee 2016, marginal no 727; Global Justice Center 2018, p 6; Grey 2017, p 925. 382 Boon 2000, p 663; Buehler 2002, p 163; De Brouwer 2005, p 146; Hall et al. 2016, marginal no 139; Soh 2006, p 321. 383 See also Drake 2012, pp 618, 619, 622, and Lobato 2016, p 26, using both terms interchangeably. 384 Ongwen 2016, above n 1, paras 98–100; Ongwen 2021, paras 2726–2727. 385 See Ambos 2013b, p 102. 386 See Vest and Sutter 2014, marginal no 577. 387 Ongwen 2016, above n 1, para 99. 388 See also Markovic 2007, p 444; Schwarz 2019, p 265. However, see also Soh 2006, p 320, mistakenly requiring “knowledge that the woman or women were forcibly made pregnant for the purpose of ‘affecting the ethnic composition […]’”. 380 See

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A related question with regard to the special intent requirement is its connection to the pregnancy and its potential outcome, i.e. the birth of a child. In the light of the history of the provision, originating from confining women in “rape camps” in order to force them to bear children presumed to be of the perpetrator’s ethnicity, it might be argued that the perpetrator’s intent must relate to forcing the pregnant victim to actually give birth. However, Pre-Trial Chamber II clarified that “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 the confinement.”389 The judges added that while the first intent alternative (affecting the ethnic composition) would typically involve an intent to bring about the birth of a child, this would not necessarily be the case for the second alternative (carrying out other grave violations of international law). The judges’ interpretation deserves support, particularly in the light of the negotiating history of the crime and its elements. During the PrepCom negotiations, an early draft of the elements of the crime of forced pregnancy included the following phrase: “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.”390 This element would have explicitly linked the previously agreed upon special intent requirements listed in Article 7(2)(f) of the ICC Statute to an intent to keep the victim pregnant, and was seen to encompass precisely the precedent case of the “rape camps” in the former Yugoslavia. However, the element was rejected, although for varying—and in fact contrasting—reasons. On one side of the conflict line, some delegations felt that the insertion of a reference to “keeping the woman pregnant” would deviate from the hard-won compromise and again infringe upon the member states’ presumed right to prohibit access to abortions. The other side feared that the proposed element would restrict the scope of the crime and particularly its second special intent alternative, illustrated by the example of confining pregnant women in order to torture them, which would not be covered by the proposal.391 With regard to the degree of intent required under Article 264a(1)(g) of the Swiss Criminal Code, Vest and Sutter asserted that it covers not only dolus directus to the first degree, meaning purpose, but also dolus directus to the second degree, meaning knowledge.392 The ICC Statute does not use these terms; instead, it differentiates in Article 30(1) between “intent” and “knowledge”. In the literature on Article 30 of the ICC Statute, intent is generally interpreted to refer to a volitional element, while knowledge refers to a cognitive element.393 There remains an ambiguity concerning the meaning of the term “intent” under the ICC Statute generally as well as concerning the formulation in Article 7(2)(f) specifically.394 Nevertheless, the drafting history 389 Ongwen

2016, above n 1, para 100; confirmed in Ongwen 2021, above n 1, para 2728. Commission for the International Criminal Court 1999e, p 71. 391 On the reasons for rejecting the proposed element, see Dörmann 2003, p 330, footnote 5. See also this chapter, Sect. 5.3.3 and 5.3.4. 392 Vest and Sutter 2014, marginal no 578. 393 See Schabas 2016, p 629; Werle and Jeßberger 2020, marginal no 540. 394 See Ambos 2013b, p 102. 390 Preparatory

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and the inclusion of the special intent requirement in order to restrict the scope of the crime indicate that “intent” should be understood in a volitional sense, i.e. as dolus directus to the first degree.395 This understanding is also in line with the German Code of Crimes Against International Law, which requires “Absicht” to affect the ethnic composition (Section 7(1) no. 6),396 a term which in German doctrine is interpreted in the sense of dolus directus to the first degree, or purpose.

5.5.6.2

Affecting the Ethnic Composition of Any Population

The first special intent alternative is the intent of affecting the ethnic composition of any population. As mentioned above, this alternative was meant to cover the precedent case of forcing Bosnian Muslim women to bear children presumed to be of Serb ethnicity. Some commentators asserted that this special intent requirement considerably limits the scope of the crime because it entails that the victim and the perpetrator cannot be members of the same ethnic group.397 However, this statement is imprecise, because its underlying assumption is that the perpetrator of the crime of forced pregnancy would be the father of the child possibly resulting from the forcible impregnation. This is not necessarily the case; it is possible that another person impregnated the woman.398 Furthermore, since the special intent has no corresponding objective element, it is not necessary to prove an actual effect on the ethnic composition, only that the perpetrator intended to cause such a result. This also means that the prosecution does not need to bring evidence regarding a child’s actual ethnic identity, which—as elaborated on above399 —is culturally constructed and difficult to determine. Instead, the prosecution must prove that the perpetrator intended to affect the ethnic composition, even if his or her understanding of membership in the ethnic group does not coincide with an objective analysis or the victimized group’s construction of membership. The requirement of a special intent to affect the ethnic composition of a population poses a genocide-like threshold to the prosecution of forced pregnancy as a crime against humanity or a war crime.400 As shown above, pregnancy-related crimes can also be prosecuted under the umbrella of genocide in certain situations, and the two intent requirements (intent to destroy and intent to affect the ethnic composition) are not mutually exclusive.401 However, the requirements are not identical either. Intent 395 See 396 See

Ambos 2018, § 7 marginal no 66. also Swiss Criminal Code, Article 264a(1)(g); Austrian Code of Crimes, Section 321a(3)

no. 4. 397 See

Boon 2000, p 663; Buehler 2002, p 163; Joseph 2008, pp 83–84; Markovic 2007, p 443. this chapter, Sect. 5.5.4. 399 See Chap. 4, Sect. 4.2.4.1. 400 See Boon 2000, p 663; Buehler 2002, p 163; Drake 2012, p 619; Schwarz 2019, p 264; Short 2003, pp 525–526. 401 See Chap. 4, Sect. 4.3.6.3. 398 See

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to affect the ethnic composition does not necessarily coincide with an intent to destroy (Article 6 of the ICC Statute). The prime example of an intent to affect the ethnic composition of a population is the precedent case of impregnation and subsequent detainment of women in the “rape camps” in the former Yugoslavia. The purpose of these acts was to force the women to give birth to children presumed to belong to the father’s (Serb) ethnic group. Such an intended “dilution of the bloodline” by enforcing the birth of children would clearly fulfil the intent requirement. In this regard, Cottier and Mzee stated that “ethnic cleansing or otherwise weakening an ethnic group” would also fall under the provision.402 Going even further, Vest and Sutter asserted that both pushing back the victim’s ethnic group and advancing the perpetrator’s ethnic group are covered by the intent requirement.403 This is correct insofar as the intent requirement does not specify which group’s ethnic composition must be affected and thus—in contrast to the intent to destroy under Article 6 of the ICC Statute—also covers the perpetrator’s own group. However, it must also be noted that the provision requires not any type of effect on the ethnic group, but an effect on its composition. Strengthen or weakening an ethnic group as such does not necessarily affect its composition. This also applies to the expulsion of population groups in the sense of so-called “ethnic cleansing”. Such policies may be executed through various means, including—but not limited to—ethnic “dilution” or ethnic “purification”. Though the notion of “ethnic (im)purity” is of course problematic and not objectively determinable, the special intent element requires that the perpetrator acted, in his or her mind, for this purpose.

5.5.6.3

Carrying out Other Grave Violations of International Law

The second special intent alternative under Article 7(2)(f) of the ICC Statute is the intent of carrying out other grave violations of international law, which significantly broadens the scope of the provision.404 This alternative was added to the ICC Statute as a compromise: While delegations opposed to the crime to forced pregnancy insisted that a special intent requirement would be necessary, those delegations supportive of the crime resisted its limitation to ethnically motivated scenarios.405 Specifically, the second intent alternative was added with a view to the experiments conducted by the Nazis on pregnant Jewish women and their foetuses in concentration

402 Cottier

and Mzee 2016, marginal no 727. and Sutter 2014, marginal no 579: “[f]ördern der eigenen ethnischen Gruppe oder aber das Zurückdrängen derjenigen des Opfers”. Following this, see also Schwarz 2019, p 265: “sowohl das Zurückdrängen der Opfergruppe als auch die Stärkung der ethnischen Gruppe des Täters bzw. der Täterin”. 404 See Boon 2000, p 665; Hall et al. 2016, marginal no 139; Schwarz 2019, p 265. 405 See Bedont 1999, pp 198–199. 403 Vest

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camps.406 In the literature on the elements of forced pregnancy, many commentators only mentioned the example of such “medical” or “biological” experiments.407 The ICC Statute and Elements of Crimes are silent on the interpretation of “other grave violations of international law” in the sense of Article 7(2)(f), leaving the judges with a great deal of discretion.408 It is not specified that only a certain area of international law would apply. While the term “grave” is reminiscent of “grave breaches” of the Geneva Conventions, such a limitation would have to be explicitly stated.409 The term “other” implies that the first intent alternative, affecting the ethnic composition of a population, constitutes such a grave violation, thus allowing the conclusion that grave violations of international law are to be interpreted in a broad manner. As a starting point, and in the light of a consistent interpretation of the ICC Statute, all crimes listed in the Statute, i.e. crimes against humanity, war crimes, and genocide, must generally be considered grave violations of international law.410 Some specific examples such as enslavement,411 torture and enforced disappearances,412 as well as persecution have been named in the literature.413 The Ongwen confirmation decision and judgment also support this approach: The judges asserted that an intent to “use [the women] as forced wives and to rape, sexually enslave, enslave and torture them” suffices.414 Further, in the light of Article 21(3) of the ICC Statute, which states that the interpretation of the Statute must be consistent with internationally recognized human rights, serious violations of international human rights law may also constitute grave violations in the sense of Article 7(2)(f).415 This may be the case even if they do not fulfil the elements of any crimes under international law. The definition in Article 7(2)(f) of the ICC Statute also does not specify against whom the violation must be carried out. It is thus possible that the intended violation is committed against the pregnant person, the foetus, or—upon birth—against the child.416 As pointed out above, the ICC also confirmed that the special intent does not need to relate specifically to the outcome of the pregnancy.417 It has even been suggested in the literature that the intent requirement is “selfreferential”, because the act of forced pregnancy could be considered as such a 406 See

Bedont and Hall-Martinez 1999, p 74. Biehler 2015, p 228; Cottier and Mzee 2016, marginal no 727; Cryer et al. 2019, p 251; De Brouwer 2005, p 146. 408 See Boon 2000, p 665; Buehler 2002, p 163; Markovic 2007, p 443. 409 See also Boon 2000, p 665. 410 See Ambos 2013b, p 102; Boon 2000, p 665; Hall et al. 2016, marginal no 139; Lobato 2016, p 26; Schwarz 2019, p 266. 411 Markovic 2007, p 443. 412 Ambos 2013b, p 102; Hall et al. 2016, marginal no 139. 413 Askin 2005, p 144. 414 Ongwen 2016, above n 1, para 101. Similarly Ongwen 2021, above n 1, para 2727. 415 See Schwarz 2019, p 266. 416 See also Markovic 2007, p 443. 417 Ongwen 2021, above n 1, para 2728; Ongwen 2016, above n 1, para 100. See also Askin 2005, p 144. 407 See

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grave violation in and of itself.418 However, this interpretation would render the special intent requirement entirely meaningless. If any act that fulfils the objective requirements of forced pregnancy would also fulfil the special intent requirement, the latter would be superfluous. Such an interpretation would also counteract the clear intention of the drafters, who added the special intent requirement in order to limit the scope of application of the crime of forced pregnancy. It follows that the grave violation the perpetrator intends to carry out must go beyond the act of confinement of the person and denial of access to reproductive health services as such, because this constitutes the actus reus of the crime. Whether an intended violation of international law is sufficiently grave must be assessed on a case-by-case basis. As with other catch-all clauses used in the ICC Statute, such as “any other form of sexual violence of comparable gravity”419 or “other inhumane acts of a similar character”,420 it must be taken into account whether the severity of the act is comparable to that of other crimes against humanity listed in Article 7.421 In the literature, the intent to commit acts of pure sadism and to enforce the birth of a child that will serve as a constant reminder has been considered as not sufficiently grave,422 though the reasons for this restriction are unclear. In the light of the broad range of potential violations, some have questioned whether the provision satisfies the principle of legality (nullum crimen sine lege), which forms part of customary international law.423 In fact, the German and Swiss legislators chose to omit the second special intent alternative in their domestic criminal codes, giving rise to a potential impunity gap as compared to the ICC Statute, because it was seen as a violation of the (domestic) principle of legality (“Bestimmtheitsgrundsatz”), though they did not give any further reasons.424 With regard to Article 7(2)(f) of the ICC Statute, however, it must be noted that the principle of legality under international law is less rigid than under continental European legal systems.425 For the purposes of the ICC, the principle of legality is laid down in Articles 22–24. Article 22(2) requires that the definition of a crime shall be strictly 418 Lobato

2016, p 26: “[T]he crime against humanity of forced pregnancy entails the widespread and systematic violation of women’s reproductive rights under international law. Therefore, the added intent of carrying out other grave violations of international law is self-referential, as it does not establish an ulterior motivation that goes beyond the normal intent regarding the actus reus.” 419 ICC Statute, above n 131, Article 7(1)(g). 420 Ibid., Article 7(1)(k). 421 For the crime against humanity of other inhumane acts see Werle and Jeßberger 2020, marginal nos 1115–1116, for the crime against humanity of any other form of sexual violence see Werle and Jeßberger 2020, marginal no 1080, with further references. See also Schwarz 2019, p 266. 422 See Cottier and Mzee 2016, marginal no 727. 423 See Schwarz 2019, p 265. On the principle of legality generally, see Werle and Jeßberger 2020, marginal nos 135–140. 424 (German) Code of Crimes Against International Law, Section 7(1) no. 6, see also Deutscher Bundestag 2002, p 21; Gropengießer and Kreicker 2003, p 131; Meseke 2004, p 290; Satzger 2002, pp 129–130; Werle 2018, marginal no 90; Swiss Criminal Code, Article 264a(1)(g), see also Vest and Sutter 2014, marginal no 581. 425 See Werle and Jeßberger 2020, marginal nos 135–137.

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construed and, in cases of ambiguity, shall be interpreted in favour of the defendant. This standard must be taken into account when assessing the “gravity” of an intended violation of international law in the sense of Article 7(2)(f) of the ICC Statute. However, when the violation fulfils the definition of another crime under the Statute or is comparable to it, there can be no doubt that individual criminal liability is foreseeable for the perpetrator. Furthermore, as elaborated on in this section, the other elements of the crime of forced pregnancy are rather restrictive, which also indicates that the “catch-all” special intent requirement does not raise any concerns regarding the principle of legality.

5.5.7 No Effect on National Laws Relating to Pregnancy The second sentence of the definition of forced pregnancy in Article 7(2)(f) of the ICC Statute states: “This definition shall not in any way be interpreted as affecting national laws relating to pregnancy”.

5.5.7.1

Legal Nature and Interpretation of the Clause

As mentioned above,426 this clause was added during the Rome Conference as a compromise. Some delegations feared that their domestic laws criminalizing abortion would fall under the scope of the proposed crime and thus need to be changed. Further, there was some concern that the crime of forced pregnancy would establish an international right to an abortion. In this context, the purpose of the clause was to assure these delegations that the inclusion of the crime would not force them to change domestic laws restricting access to or criminalizing abortion, and would not establish an international right to abortion access.427 Rather, it was agreed that the discussion on such a potential right must continue within the human rights framework.428 In fact, the efforts to include a crime of forced pregnancy in the ICC Statute were not related to the advocacy for an international right to an abortion, primarily because international criminal law would not be the appropriate forum for establishing such a right. International criminal law is directed at individuals. It establishes criminal responsibility directly under international law. Unlike international human rights law, which establishes obligations for states to respect, protect, and fulfil human rights, international criminal law thus does not create rights for individuals. In this regard, the observation that the clause in Article 7(2)(f), sentence 2 of the ICC Statute “shall ensure that national policies in favour of abortion may not be promoted

426 See

this chapter, Sect. 5.3.3.3.

427 See Boon 2000, p 666; Markovic 2007,

p 445; Schwarz 2019, pp 258, 263; Steains 1999, p 368. See also Ongwen 2021, above n 1, para 2721. 428 See Cryer et al. 2019, p 251.

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under the guise of policies against forced pregnancy”429 perhaps best captures its effect. In other words, the inclusion of the crime of forced pregnancy in the ICC Statute was not supposed to give support to the efforts led by many non-governmental organizations within various international forums to recognize an international right to an abortion.430 Some scholars pointed out that because of the clause, national laws (or rather, their adoption, application, and enforcement) would not fall under the scope of the crime and thus not entail individual criminal responsibility.431 However, several authors also asserted that this could only apply as long as the national laws in question are not aimed at affecting the ethnic composition of a population or carrying out other grave violations of international law in the sense of Article 7(2)(f) of the ICC Statute.432 But this assumed primacy of the intent requirement in the first sentence before the deferential clause in the second sentence of Article 7(2)(f) does not have any systematic justification. Still, the practical effect of the clause appears minimal at best.433 First, a 2014 survey of abortion legislation around the world showed that a majority of states allowed abortions when the life or health of the pregnant person is at risk or when the pregnancy is the result of rape.434 These exceptions cover all situations that are under the scope of application of the crime of forced pregnancy.435 Second, a domestic jurisdiction’s failure to provide safe and legal access to abortions as such would not fall under the scope of the crime, because it would not fulfil the element of unlawful confinement. The only conceivable scenario is a situation where state agents act in accordance with “national laws relating to pregnancy”, i.e. laws criminalizing abortions, for example when a forcibly impregnated person who has attempted to obtain an abortion is arrested and confined. Additionally, all other elements of the crime of forced pregnancy must be fulfilled, particularly the perpetrator’s knowledge of the forcible impregnation as well as the special intent. Furthermore, the context element must be present, meaning that the act must take place either in the context of a widespread or systematic attack against any civilian population or in the context of an armed conflict. The clause in Article 7(2)(f), sentence 2 of the ICC Statute would only come into play when all these elements are present. Even then, Kuschnik argued that, in the absence of a “cumulative nexus” between the forcible impregnation and the confinement, there would be no criminal

429 See

Ambos 2013b, p 102. also Kuschnik 2009, p 357. 431 See Cottier and Mzee 2016, marginal no 724. 432 See Biehler 2015, p 229; Global Justice Center 2018, p 6; Hall et al. 2016, marginal no 140; Schwarz 2019, p 263; Soh 2006, p 328. 433 See also Boon 2000, p 666; Kuschnik 2009, p 257; Schwarz 2019, p 263. 434 See United Nations Department of Economic and Social Affairs, Population Division 2014. See also the data compiled and updated at Center for Reproductive Rights, The World’s Abortion Laws, https://reproductiverights.org/worldabortionlaws (accessed 24 October 2020). 435 See also Boon 2000, p 666. 430 See

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responsibility.436 However, such a nexus is not required under Article 7(2)(f) of the ICC Statute. As shown above, it is sufficient when the perpetrator who confines the victim has knowledge of her forcible impregnation. Bedont raised a more convincing argument on the limited scope of application of the clause on national laws relating to pregnancy. She asserted that it must be read in conjunction with Article 21(3) of the ICC Statute.437 Article 21(3) provides: The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

5.5.7.2

Effect of Article 21(3) of the ICC Statute

In order to evaluate the merit of this argument, this subsection gives an overview on the current state of international human rights law with regard to abortions in cases of rape and other forms of forcible impregnation. Subsequently, the legal effect of Article 21(3) on the interpretation of Article 7(2)(f), sentence 2 of the ICC Statute will be explored in more detail. The precise meaning of “internationally recognized human rights” has rarely been addressed and different understandings have been put forward. In its jurisprudence to date, the ICC has chosen a wide approach, taking into account soft law instruments and regional human rights treaties and jurisprudence.438 This approach will guide the following analysis. The obligation of states to provide access to abortion in cases of rape, and the corresponding individual right to such access, has increasingly been addressed within the framework of international human rights law.439 While the African Union’s Maputo Protocol is the only human rights treaty to guarantee the right to an abortion explicitly in such cases,440 several United Nations treaty bodies and other human rights bodies have issued statements in this regard.441 In 2018, the Human Rights Committee affirmed in its General Comment No. 36 that states are obliged under Article 6 of the International Covenant on Civil and Political Rights to “provide safe, legal and effective access to abortion […] where carrying a pregnancy to term would cause the pregnant woman or girl substantial pain or suffering, most notably where the pregnancy is the result of rape […].”442 Previously, the Human Rights Committee had called upon various states to guarantee 436 Kuschnik

2009, pp 357–358. 1999, p 198. 438 See Bitti 2015, pp 434–436; Grover 2014, p 118. 439 See generally Zampas and Gher 2008, pp 280–284. See also Global Justice Center 2018, pp 7–8. 440 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, opened for signature 11 July 2003 (entered into force 25 November 2005) (Maputo Protocol), Article 14(2)(c). 441 See Chap. 3, Sect. 3.4.1. 442 United Nations Human Rights Committee 2018b, para 8. 437 Bedont

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safe and legal access to abortion under certain circumstances, including when the pregnancy was the result of rape.443 Similarly, in its General Comment No. 22 on sexual and reproductive health, the Committee on Economic, Social and Cultural Rights stipulated that states must provide access to safe abortion services, especially (but not only) to survivors of sexual violence under the right to health in Article 12 of the International Covenant on Economic, Social and Cultural Rights.444 The Committee further clarified that states are obligated to reform restrictive laws criminalizing abortion.445 It also acknowledged that the denial of abortion access may amount to violations of the right to life or security, or to torture or cruel, inhuman, or degrading treatment,446 and named forced pregnancy among a list of coercive acts which states are obligated to prevent.447 In various cases, the Committee called upon states in its concluding observations to decriminalize and ensure access to abortion specifically in cases of rape.448 The CEDAW Committee has issued two General Recommendations in which it called upon states to decriminalize abortion in all cases.449 Jointly with the Committee on the Rights of Persons with Disabilities, the CEDAW Committee reaffirmed in 2018 that “States parties should decriminalize abortion in all circumstances and legalize it in a manner that fully respects the autonomy of women, including women with disabilities.”450 The CEDAW Committee has also called upon various states to decriminalize and guarantee access to abortion specifically in cases of rape.451 Furthermore, the CEDAW Committee ruled in a groundbreaking decision in 2011 that Peru had violated the right to health under Article 12 of CEDAW by denying a

443 United Nations Human Rights Committee 2012a, para 15; United Nations Human Rights Committee 2012b, para 13; United Nations Human Rights Committee 2018a, para 15(a). 444 United Nations Committee on Economic, Social and Cultural Rights 2016, paras 28, 45. 445 Ibid., paras 28, 34, 40. 446 Ibid., para 10. 447 Ibid., para 59. 448 United Nations Committee on Economic, Social and Cultural Rights 2001, para 55; United Nations Committee on Economic, Social and Cultural Rights 2004, para 53; United Nations Committee on Economic, Social and Cultural Rights 2008, para 46; United Nations Committee on Economic, Social and Cultural Rights 2014, para 22 (not limited to rape). 449 United Nations Committee on the Elimination of Discrimination Against Women 1999, para 31(c); United Nations Committee on the Elimination of Discrimination Against Women 2017b, para 29(c)(i). 450 United Nations Committee on the Rights of Persons With Disabilities and United Nations Committee on the Elimination of Discrimination Against Women 2018. 451 See e.g. United Nations Committee on the Elimination of Discrimination Against Women 2013a, para 32(g); United Nations Committee on the Elimination of Discrimination Against Women 2014, para 36(a); United Nations Committee on the Elimination of Discrimination Against Women 2015, para 51(e); United Nations Committee on the Elimination of Discrimination Against Women 2017a, para 39; United Nations Committee on the Elimination of Discrimination Against Women 2018b, para 39(a).

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13-year-old rape victim access to an abortion.452 In 2018, the CEDAW Committee found the United Kingdom in violation of various rights under the Convention, most notably the right to health under Article 12 and the right to decide freely and responsibly on the number and spacing of children under Article 16 as well as the right to non-discrimination under Article 2, for failing to provide access to abortion in cases of rape.453 It criticized this failure in remarkably clear terms: The restriction [of access to abortion], affecting only women, preventing them from exercising reproductive choice and resulting in women being forced to carry almost every pregnancy to full term, involves mental or physical suffering constituting violence against women and potentially amounting to torture or cruel, inhuman and degrading treatment […]. It affronts women’s freedom of choice and autonomy and their right to self-determination. The mental anguish suffered is exacerbated […] where the pregnancy results from rape or incest. Forced continuation of pregnancy in such scenarios is unjustifiable, State-sanctioned coercion.454 [footnotes omitted]

In the same vein, the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment stated that “[h]ighly restrictive abortion laws that prohibit abortions even in cases of […] rape […] violate women’s right to be free from torture and ill-treatment.”455 Similarly, the UN Committee against Torture, which is responsible for monitoring the implementation of the UN Convention against Torture, recommended that states ensure access to safe and legal abortion in certain situations, including when the pregnancy was the result of rape.456 More extensively, the UN Special Rapporteur on Violence against Women urged states to decriminalize abortion in all circumstances, “at the very minimum” in cases of sexual assault, rape, incest, or when the health of the woman is in danger.457 The African Union’s Maputo Protocol explicitly obligates states to “protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape” and others.458 The African Commission on Human and Peoples’ Rights underscored this obligation in its General Comment No. 2, stating that “[f]orcing a woman to keep a pregnancy resulting from these cases constitutes additional trauma which affects her physical and mental health”.459 Pertaining to Europe, the Parliamentary Assembly of the Council of Europe invited its member states in a 2008 resolution to “guarantee women’s effective exercise of 452 United

Nations Committee on the Elimination of Discrimination Against Women 2011, para 8.15. The Committee also explicitly called upon Peru to decriminalize abortion when the pregnancy results from rape, para 9.2(c). 453 United Nations Committee on the Elimination of Discrimination Against Women 2018a, paras 60, 72. 454 Ibid., para 65. 455 United Nations Human Rights Council 2016, para 43. 456 See e.g. United Nations Committee Against Torture 2013a, para 28; United Nations Committee Against Torture 2013b, para 23; United Nations Committee Against Torture 2016, para 40(b). 457 United Nations General Assembly 2019, para 81(q). 458 Maputo Protocol, above n 440, Article 14(2)(c). 459 African Commission on Human and Peoples’ Rights 2014, para 37.

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their right of access to a safe and legal abortion”.460 The Council of Europe’s Commissioner for Human Rights also called upon states in 2017 to “ensure all women’s access to safe and legal abortion care”.461 Furthermore, the European Court of Human Rights issued several judgments on abortion access. In three cases brought against Poland and one against Ireland, it asserted that the failure to guarantee effective access to a theoretically permissible abortion constituted a violation of the right to privacy under Article 8 of the European Convention on Human Rights.462 The Inter-American Commission on Human Rights issued a statement in 2017 in which it called upon states to respect and protect women’s sexual and reproductive rights. Pertaining to access to abortion, it stated: The Commission also underscores that laws criminalizing abortion in all circumstances have a negative impact on women’s dignity and their rights to life, to personal integrity, and to health, as well as on their general right to live free from violence and discrimination. The absolute criminalization of abortion, including in cases where the woman’s life is at risk and when the pregnancy results from a rape or incest, imposes a disproportionate burden on the exercise of women’s rights and creates a context that facilitates unsafe abortions and high rates of maternal mortality.463

The sources listed in this subsection indicate that there exists an obligation for states to provide safe and legal access to reproductive health services, including abortion, (at least) in cases where the pregnancy was the result of rape or other forcible circumstances. Against this background, the question is raised how the obligation to provide access to reproductive health services relates to the deferential clause in Article 7(2)(f), sentence 2 of the ICC Statute. In general terms, Article 21(3) of the ICC Statute entails that internationally recognized human rights are not only a subsidiary source of law in the sense of “principles and rules of international law” under Article 21(1)(b). Instead, internationally recognized human rights constitute the cornerstone for the interpretation and application of the ICC Statute and as such stand at the top of the normative hierarchy of Statute law.464 Leena Grover pointed out that while the drafting history of Article 21(3) of the ICC Statute focused on limiting judicial discretion as well as the controversial 460 Parliamentary

Assembly of the Council of Europe 2008, para 7.2. of Europe Commissioner for Human Rights 2017, p 11. 462 European Court of Human Rights, Tysi˛ ac v Poland, Judgment, 20 March 2007, no. 5410/03; European Court of Human Rights, A., B., and C. v Ireland, Grand Chamber Judgment, 16 December 2010, no. 25579/05; European Court of Human Rights, R.R. v Poland, Judgment, 26 May 2011, no. 27617/04; European Court of Human Rights, P. and S. v Poland, Judgment, 30 October 2012, no. 57375/08; see also Oja and Yamin 2016, pp 72–73. 463 Inter-American Commission on Human Rights, IACHR Urges All States to Adopt Comprehensive, Immediate Measures to Respect and Protect Women’s Sexual and Reproductive Rights, 23 October 2017, https://www.oas.org/en/iachr/media_center/PReleases/2017/165.asp (accessed 24 October 2020). In response to this statement, the United States withdrew funds from the Commission, see Castaldi, Partial U.S. Sanctions on Inter-American Commission on Human Rights, Oxford Human Rights Hub, 2 August 2019, https://ohrh.law.ox.ac.uk/partial-u-s-sanctions-on-inter-ame rican-commission-on-human-rights/ (accessed 24 October 2020). 464 See Werle and Jeßberger 2020, marginal no 250. See also Arsanjani 1999, pp 28–29; Bitti 2015, pp 433–443; deGuzman 2016, marginal no 51; Schabas 2016, p 530. 461 Council

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inclusion of the term “gender”,465 one of the main fields of application may be to “ensur[e] that any recourse to national law is consistent with international human rights law”.466 As shown above, domestic laws that deny access to abortion in cases of forcible impregnation violate the states’ obligations under international human rights law, and thus violate internationally recognized human rights in the sense of Article 21(3) of the ICC Statute. The deferential clause in Article 7(2)(f), sentence 2, must be interpreted accordingly. Thus, the protection of such domestic laws under this clause cannot be justified.467 In other words, when all elements of the crime of forced pregnancy are fulfilled, the fact that a perpetrator acted in accordance with such a domestic law does not shield him or her from criminal responsibility. A similar idea, namely that not any kind of domestic law falls under the protection offered by Article 7(2)(f), sentence 2, also stands behind the above-mentioned assertion by several scholars that the clause does not extend to such laws whose purpose it is to affect the ethnic composition of a population or carry out other grave violations of international law.468 It should also be noted that Article 21(3) of the ICC Statute not only requires a consistent interpretation and application of law with internationally recognized human rights, but also prohibits adverse distinction founded on gender grounds. According to the CEDAW Committee, domestic laws criminalizing abortion constitute discrimination of women,469 and thus discriminate on gender grounds. This further supports the argument that Article 7(2)(f), sentence 2 of the ICC Statute cannot be interpreted to protect such discriminatory domestic laws. To summarize, when interpreted in the light of Article 21(3), the deferential clause in Article 7(2)(f), sentence 2 of the ICC Statute only applies to such domestic laws that do not violate internationally recognized human rights or otherwise discriminate on the basis of gender. Specifically, this means that domestic laws that deny access to an abortion in cases of rape or other forms of forcible impregnation do not shield perpetrators from criminal responsibility.

465 Grover

2014, pp 115–116. p 115. 467 However, see also Markovic 2007, p 448, who claimed that the deferential clause in Article 7(2)(f), sentence 2 trumps the requirement of consistency with internationally recognized human rights under Article 21(3) of the ICC Statute, above n 131. 468 See Biehler 2015, p 229; Global Justice Center 2018, p 6; Hall et al. 2016, marginal no 140; Schwarz 2019, p 263; Soh 2006, p 328. 469 United Nations Committee on the Elimination of Discrimination Against Women 2017b, para 29(c)(i). See also United Nations Committee on the Rights of Persons With Disabilities and United Nations Committee on the Elimination of Discrimination Against Women 2018. 466 Ibid.,

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5.5.8 Proposals De Lege Ferenda Having interpreted the elements of the crime of forced pregnancy under Article 7(2)(f) of the ICC Statute, this subsection proposes statutory amendments for the definition of the crime.

5.5.8.1

Consensually Induced Impregnation

The requirement of a forcible impregnation entails that a consensual act of sexual intercourse leading to an impregnation does not fall under the ambit of the crime of forced pregnancy, even when all other requirements of the crime are fulfilled, most importantly the unlawful confinement and the necessary special intent. Some authors, most notably Barbara Bedont, criticized this restriction, pointing to the example of pregnant women being kidnapped and confined in order to “sell” the children into slavery.470 This conduct would not be punishable under the crime of forced pregnancy due to the lack of forcible impregnation. However, Vest and Sutter justified the restriction by arguing that due to the lack of “appropriation of the victim’s reproductive capacity” with the purpose to affect the ethnic composition, it is appropriate to provide less protection in this scenario.471 But this argument applies exclusively to the group/ethnicity-related scenario of the commission of pregnancy-related crimes as embodied in the first special intent alternative. Reproductive crimes such as forced pregnancy may also be committed for reasons unrelated to the group membership or ethnicity of the victim, as provided for in the second special intent alternative of “carrying out other grave violations of international law”. However, the circumstances under which the pregnancy was induced do play an important role in the assessment of the criminality of the subsequent confinement. This consideration also applies to international human rights law. As shown in the preceding subsection, there is a trend towards a universal recognition of the right to access to reproductive health services, including safe and legal abortion, most prominently illustrated by the adoption of General Comment No. 36 by the Human Rights Committee.472 However, at this point, this recognition mostly remains limited to certain specifically enumerated situations, most notably when the woman’s life or health is at risk or when the pregnancy is the result of rape or incest, or not viable.473 Although there appears to be a tendency to loosen or abolish these limitations and instead promote the right to safe and legal abortion in all circumstances in more

470 Bedont 1999, p 198. Following her: De Brouwer 2005, p 146; Grey 2017, p 921. See also Cottier

and Mzee 2016, marginal no 727. 471 Vest and Sutter 2014, marginal no 556: “Aneignung der Reproduktionsfähigkeit des Opfers zum

Zweck der ethnischen Verschiebung”. Nations Human Rights Committee 2018b, para 8. 473 See e.g. ibid. 472 United

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recent instruments and statements,474 this view is still rather controversial. In the light of the harsh opposition of many delegations during the negotiations on the ICC Statute, the criminalization of forced pregnancy only in cases of forcible impregnation, which is undoubtedly in line with international human rights law, appears appropriate as of now. The limitation to cases of forcible impregnation, however, should be re-evaluated in the future, provided that the tendency to recognize the right to unconditional access to safe and legal abortion under international human rights law continues. In this regard, it should be noted that the above-mentioned scenario of kidnapping pregnant persons in order to “sell” their children into slavery could be prosecuted as other crimes, for example as enslavement,475 sexual slavery,476 persecution on gender grounds,477 or other inhumane acts,478 depending on the circumstances.479 While these crimes do not explicitly relate to reproductive autonomy, prosecutors and judges have the option to surface this aspect of the criminal acts in the charges and judgment as well as to consider it as a factor in the sentencing decision.

5.5.8.2

Elimination of the Special Intent Requirement

The crime of forced pregnancy is the only gender-based crime against humanity and war crime in the ICC Statute to require a special intent. In the light of the material elements of the crime, which are already restrictive, as well as the purpose of the provision, the special intent requirement should be eliminated. The scope of application of the crime of forced pregnancy is quite limited, even without the additional special intent element. As shown above, the objective elements of the crime were designed to apply to a very specific scenario: They were drafted with a view to the so-called “rape camps” in the former Yugoslavia. In the light of this limited scope of application, a further restriction on the subjective side of the crime appears unwarranted. As the Ongwen Pre-Trial Chamber acknowledged, “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.”480 Considering the purpose of the crime, which is to protect reproductive autonomy, a connection to further grave violations of international law (of which the intent to affect the ethnic composition of a population is an example) is unnecessary, because 474 See e.g. Council of Europe Commissioner for Human Rights 2017, p 11; Parliamentary Assembly

of the Council of Europe 2008; United Nations Committee on the Rights of Persons With Disabilities and United Nations Committee on the Elimination of Discrimination Against Women 2018; United Nations General Assembly 2019, para 81(q). 475 ICC Statute, above n 131, Article 7(1)(c). 476 Ibid., Article 7(1)(g). 477 Ibid., Article 7(1)(h). 478 Ibid., Article 7(1)(k). 479 Bedont 1999, p 198. 480 Ongwen 2016, above n 1, para 99.

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the unlawful confinement in and of itself prevents the victim from exercising her reproductive autonomy. The elimination of the special intent requirement would also bring the crime of forced pregnancy in line with international human rights law. As shown above, there is an increasing recognition of the right to access to reproductive health services, including abortion, particularly in cases of rape or other forms of sexual assault within the international human rights framework. Various human rights institutions have called upon states to decriminalize abortion in these cases and to ensure safe, legal, and effective access. Denial of this access amounts to a violation of the person’s internationally recognized human rights, including her right to life and health. Of course, not every human rights violation is or should be criminalized under international law. But the inclusion of forced pregnancy in the ICC Statute reflects the drafters’ decision to criminalize such violations of reproductive autonomy. Considering this and the fact that the violation of reproductive autonomy is already captured by the objective requirements of the crime (the unlawful confinement of a forcibly impregnated woman), the necessity of any additional subjective requirements is inappropriate. Additionally, as Robert Cryer pointed out, the unlawful confinement of a woman forcibly made pregnant could also be prosecuted under the ambit of the crime against humanity of “other inhumane acts”. This was possible even before the adoption of the ICC Statute. Adding a special intent requirement in Article 7(2)(f) thus “diluted the prohibition” and potentially obstructs the prosecution of such acts as more general crimes.481 Furthermore, the special intent requirement of affecting the ethnic composition of any population is problematic in and of itself.482 It raises concerns with regard to seemingly setting a standard of desirable ethnic “purity”. However, the purpose of the crime is not to protect ethnic groups, but to protect the individual victim’s reproductive autonomy. The linkage to ethnicity paints the crime in a genocideor persecution-like manner,483 furthering the notion that reproductive autonomy is only worthy of protection under international criminal law when there is a nexus to the protection of an (ethnic) group.484 In view of the fact that the second intent alternative of carrying out other grave violations considerably broadens the scope of application, it must be called into question why the restrictive first intent alternative is necessary at all. With regard to the appropriate broad interpretation of “carrying out other grave violations”, which was also put forward by the Ongwen Pre-Trial and Trial Chambers,485 it may be argued that the intent requirement is dispensable, because it would be fulfilled in nearly any scenario in which the other elements of the crime are present.

481 Cryer

2005, p 258. generally Drake 2012. 483 See Cryer 2005, p 258, stating the intent requirement is “dangerously close to a discriminatory intent unnecessary for a ‘murder-type’ crime against humanity”. 484 See also Grey 2019, p 111. See generally Chap. 3, Sect. 3.3.5. 485 Ongwen 2021, above n 1, para 2127; Ongwen 2016, above n 1, para 100. 482 See

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5.5.8.3

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Elimination of the Reference to National Laws Relating to Pregnancy

The reference to national laws relating to pregnancy in Article 7(2)(f), sentence 2 of the ICC Statute should be eliminated,486 because (1) it does not have any practical legal effect and (2) it is an atypical concession to domestic laws within the system of international criminal justice. As rightly observed in the Ongwen judgment, the clause does not add a new element to the crime.487 In fact, when interpreted correctly in the light of internationally recognized human rights, which is mandatory according to Article 21(3) of the ICC Statute, the deferential clause does not have any practical legal effect. States are obligated under international human rights law to provide safe and legal access to reproductive health services, including abortion, when the pregnancy is the result of rape. When domestic laws deny such access, they violate internationally recognized human rights and thus do not fall under the protection of Article 7(2)(f), sentence 2 of the ICC Statute.488 Since the crime of forced pregnancy only applies to situations where the pregnancy was forcibly induced, there is no room for deference to national laws. This result does not run counter to the purpose of the provision: The drafting history shows that the provision was a political concession to enable the inclusion of the crime in the Statute. Its purpose was to ensure that the criminalization of forced pregnancy under the ICC framework would not establish an international right to an abortion. However, this concern raised by sceptical delegations is misguided, primarily because the ICC Statute and international criminal law in general do not have the function of establishing individual human rights.489 Even members of delegations that resolutely opposed the crime of forced pregnancy during the Rome Conference acknowledged that the inclusion of the crime does not establish a right to an abortion and that the second sentence of the definition was added “in an excess of caution”.490 Further, the crime of forced pregnancy does not force states to change restrictive abortion laws,491 as feared by some delegations, because the adoption or application of such laws as such does not give rise to criminal responsibility. Rather, criminal responsibility under the crime of forced pregnancy requires that all other elements are fulfilled, namely the circumstance of forcible impregnation and the perpetrator’s knowledge thereof, the act of unlawful confinement, and the special intent. 486 See

also Global Justice Center 2018, pp 5–10, demanding that the deferential clause in Article 7(2)(f), sentence 2 of the ICC Statute should not be reproduced in the envisaged Convention on Crimes Against Humanity. 487 Ongwen 2021, above n 1, para 2721. 488 See this chapter, Sect. 5.5.7.2. 489 See this chapter, Sect. 5.5.7.1. 490 Wilkins and Reynolds 2006, p 142. 491 Nevertheless, and independently from the criminalization of forced pregnancy as a crime against humanity and a war crime, an obligation to change such restrictive laws exists under international human rights law.

5.5 The Definition of Forced Pregnancy in the ICC Statute

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The elimination of the clause thus would not have any practical consequences. However, it would remove the uncertainty surrounding the atypical nature of this clause and its effect on the interpretation of the crime. Apart from the lack of any practical legal effect, it should also be noted that the crime of forced pregnancy is the only crime in the ICC Statute with such a reservation concerning national laws.492 In fact, the reservation appears in contradiction to the general nature of international criminal law, which criminalizes certain acts directly under international law regardless of domestic legality. This has been a cornerstone of international criminal law since the establishment of the Nuremberg International Military Tribunal.493 In this regard, the deference given to national laws in the case of forced pregnancy appears wholly unwarranted.494

5.6 Forced Pregnancy Beyond the ICC The crime of forced pregnancy is an innovation of the ICC Statute, which has since spread to some other international courts as well as domestic jurisdictions. This final section highlights these developments and discusses the status of forced pregnancy as a crime under customary international law.

5.6.1 Forced Pregnancy in Other Jurisdictions 5.6.1.1

International Courts

The Statutes of the ad hoc tribunals for Rwanda and the former Yugoslavia did not include separate crimes of forced pregnancy, and such conduct was not charged as more general offenses either. Although evidence of the commission of forced impregnation did come up in some of the judgments, this was mostly in relation to acts of genocide, not crimes against humanity or war crimes.495 In two other cases before the ICTY, the intent to impregnate the victim was referred to in the context of the war crimes of rape and torture496 and in the context of the required discriminatory intent for the crime against humanity of persecution.497 The unlawful confinement

492 See Global Justice Center 2018, p 5 See also Markovic 2007, p 447 (“‘state action’ exception”). 493 See

Werle and Jeßberger 2020, marginal no 21. also Markovic 2007, pp 447–448. 495 Akayesu 1998, above n 298, para 507; ICTY, Prosecutor v Radovan Karadži´ c and Ratko Mladi´c, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, IT-95-5-R61 and IT-95-18-R61, paras 64, 94. 496 Kunarac et al. 2001, above n 306, para 342, see also paras 583, 654. 497 ICTY, Prosecutor v Radoslav Brdanin, Judgment, 1 September 2004, IT-99-36-T, para 1011. 494 See

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of a forcibly impregnated woman as such was not prosecuted at either of the ad hoc tribunals. Following the example of the ICC Statute, the crime of forced pregnancy is also included as both a crime against humanity and a war crime in the Statute of the Special Panels for Serious Crimes in the Courts of Dili in East Timor,498 the Law on the Specialist Chambers in Kosovo,499 and the proposed Statute of the African Criminal Court.500 It appears only as a crime against humanity in the Statute of the Special Court for Sierra Leone.501 The definition of the crime of forced pregnancy given in Article 7(2)(f) of the ICC Statute is replicated in the Statute of the Special Panels for Serious Crimes in the Courts of Dili in East Timor502 and in the proposed Statute of the African Criminal Court.503 The Statutes of the Extraordinary African Chambers and the Extraordinary Chambers in the Courts of Cambodia do not include forced pregnancy either as a war crime or as a crime against humanity. The crime of forced pregnancy has not been explicitly charged before any other international or hybrid tribunals. At the Special Court for Sierra Leone, evidence of forced impregnation and forced pregnancy was only used to support other charges (forced marriage or sexual slavery). It is interesting to note that even though such a separate crime of forced pregnancy existed, and the judges expressly stated that the women and girls abducted by the Revolutionary United Front had to “endure forced pregnancy”,504 this conduct was only referred to in the context of other crimes. Similar to the ad hoc tribunals, the Extraordinary Chambers in the Courts of Cambodia did not have explicit jurisdiction over a separate crime of forced pregnancy. Nevertheless, there were efforts to charge this conduct under the umbrella of the crime against humanity of other inhumane acts. As mentioned above,505 the Civil Party Lawyers and the International Co-Prosecutor requested investigative actions 498 Statute

of the Special Panels for Serious Crimes in the Courts of Dili, Regulation no. 2000/15 on the Establishment of Panels With Exclusive Jurisdiction Over Serious Criminal Offences, UN Doc. UNTAET/REG/2000/15, 6 June 2000 (Statute of the Special Panels), Section 5.1(g) (crimes against humanity), Section 6.1(b)(xxii) and (e)(vi) (war crimes). 499 Law no. 05/L-053 by the Assembly of Republic of Kosovo on Specialist Chambers and Specialist Prosecutor’s Office, 3 August 2015, Article 13(1)(g) (crimes against humanity), Article 14(1)(b)(xxii) and (d)(vi) (war crimes). 500 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, opened for signature 27 June 2014 (Malabo Protocol), Article 28C(1)(g) and (h) (crimes against humanity), Article 28D(b)(xxiii) and (e)(vi) (war crimes). 501 Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 2178 UNTS 137, 16 January 2002, Article 2(g). 502 Statute of the Special Panels, above n 498, Section 5.2(e). 503 Malabo Protocol, above n 500, Article 28C(2)(f). 504 Special Court for Sierra Leone, Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Appeals Judgment, 22 February 2008, SCSL-2004-16-A, para 190. See also the evidence reproduced in the trial judgment, Special Court for Sierra Leone, Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Judgment, 20 June 2007, SCSL04-16-T, paras 1080–1081, 1091, 1097, 1113–1114, 1184. See also Schwarz 2019, pp 254–255. 505 See Chap. 3, Sect. 3.3.4.4.

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concerning forced pregnancy and forced impregnation as crimes against humanity of other inhumane acts in Case 004,506 but the International Co-Investigating Judge denied these requests. Inter alia, the judge held that there was no settled definition of forced impregnation and/or forced pregnancy at the time of the commission of the alleged crimes between 1975 and 1979.507 In Case 002/2 before the ECCC, evidence of forced pregnancy was curiously framed as “sexual relations aimed at enforced procreation”508 as part of a policy of “regulation of marriage” under the charge of the crimes against humanity of rape and forced marriage (as another inhumane act).509 However, the aspect of enforced procreation, which essentially described pregnancies under forcible circumstances, was completely omitted in the trial judgment and did not even form part of the underlying conduct of the convictions for rape and forced marriage, much less a separate conviction.

5.6.1.2

Domestic Law

In enacting international criminal law within domestic legal systems, several states have added forced pregnancy to their criminal codes,510 mostly without reproducing the definition in Article 7(2)(f) of the ICC Statute and particularly without the caveat for national laws.511 The German Code of Crimes Against International Law, for example, includes the following provision: Whosoever, as part of a widespread or systematic attack directed against any civilian population, […] confines a woman who has been forcibly made pregnant, with the intent of affecting the ethnic composition of any population […] shall be punished […] with imprisonment for not less than five years. […]512

5.6.2 Forced Pregnancy as a Crime Under Customary International Law The status of forced pregnancy as a crime under customary international law has been called into question.513 Despite the inclusion of the crime in the ICC Statute, 506 Ao

An and Yim Tith Decision on Investigative Requests 2016, above n 271, paras 8, 11. para 31. See also Grey forthcoming, p 31, criticizing this decision. 508 Nuon et al. Closing Order 2010, above n 31, para 1445. 509 Ibid., paras 842–860, 1442–1447. 510 See Chappell 2016, pp 181–186. 511 For an overview, see Global Justice Center 2018, p 7. 512 (German) Code of Crimes Against International Law, Section 7(1) no. 6: “Wer im Rahmen eines ausgedehnten oder systematischen Angriffs gegen eine Zivilbevölkerung […] in der Absicht, die ethnische Zusammensetzung einer Bevölkerung zu beeinflussen, eine unter Anwendung von Zwang geschwängerte Frau gefangen hält, […] wird […] mit Freiheitsstrafe nicht unter fünf Jahren […] bestraft.“ 513 See Cassese and Gaeta 2013, p 107. 507 Ibid.,

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this question has not lost its relevance, because customary crimes represent general international law as opposed to mere treaty law and thus also bind non-state parties.514

5.6.2.1

Separate Crime

To a large extent, the ICC Statute represents the current state of customary international law. Accordingly, the inclusion of the crime of forced pregnancy in the ICC Statute is an indicator for its criminalization under customary international law. However, some of the Statute’s provisions are independent contributions to international criminal law.515 Before the adoption of the ICC Statute in 1998, forced pregnancy was not a separate customary war crime or crime against humanity. While it was discussed in the literature in response to the reports from Yugoslavia in the mid-1990s, there was neither actual practice (consuetudo, repetitio facti) nor a sense of legal obligation (opinio iuris sive necessitatis).516 However, the inclusion of the crime in the ICC Statute may have triggered its formation as a crime under customary international law.517 In order to determine whether a certain conduct is criminal under customary international law, one must take into account international treaties, international case law, the work of international institutions such as the International Law Commission and United Nations bodies as well as relevant domestic legislation and practice.518 Besides its inclusion in the ICC Statute, the crime of forced pregnancy has appeared as a crime against humanity and a war crime in the statutes of several international courts as well as in domestic legislation, as discussed above. It is also generally referred to as a form of sexual violence in reports from United Nations institutions, for example in the annual report on conflict-related sexual violence of the UN Secretary-General to the Security Council,519 and recognized as a human rights violation.520 Perhaps the most persuasive aspect in favour of the customary character of the crime against humanity of forced pregnancy is its inclusion in the draft Convention on Crimes against Humanity by the International Law Commission.521 Despite the lack of prosecutions (besides the Ongwen trial at the ICC), the crime of forced pregnancy has thus emerged as a customary international norm.

514 See

Werle and Jeßberger 2020, marginal no 210. marginal no 208. 516 See ibid., marginal no 196. 517 See Cassese and Gaeta 2013, p 107. 518 ICTY, Prosecutor v Radislav Krsti´ c, Judgment, 2 August 2001, IT-98-33-T, para 541; see also Werle and Jeßberger 2020, marginal no 202. 519 United Nations Security Council 2019, para 4. 520 See Chap. 3, Sect. 3.4.2. 521 International Law Commission 2019, Article 2(1)(g). 515 Ibid.,

5.6 Forced Pregnancy Beyond the ICC

5.6.2.2

259

Other Inhumane Acts

A related issue surfaced in Case 004 before the ECCC. Namely, it was questioned whether the prosecution of conduct amounting to forced pregnancy in the sense of Article 7(2)(f) of the ICC Statute or forced impregnation (as in forcibly making a person pregnant) as the crime against humanity of other inhumane acts was possible even before the adoption of the ICC Statute. In this case, the International CoInvestigating Judge denied a request for investigative action concerning such conduct, partly because he held that it did not rise to the level of other inhumane acts in the relevant period of 1975 to 1979.522 In order to prosecute acts of forced pregnancy under the ambit of other inhumane acts, it would not be necessary to show that a separate crime under customary law existed at the time. Rather, it must be shown that the conduct amounted to other inhumane acts at the time of its commission.523 With regard to the identification of other inhumane acts, ICC Pre-Trial Chamber I stated that they “are to be considered as serious violations of international customary law and the basic rights pertaining to human beings, drawn from the norms of international human rights law”.524 As delineated by the International Co-Investigating Judge in Case 004, a fixed definition of forced pregnancy did not exist under customary international law at the time, and neither was reproductive autonomy protected under international human rights law.525 This would in fact preclude the prosecution of violations of reproductive autonomy as such under the provision of other inhumane acts, at least up to the 1990s. However, the conduct constituting forced pregnancy, i.e. the unlawful confinement of a forcibly impregnated person, also amounts to a violation of the victim’s physical liberty. This deprivation of liberty, as well as the preliminary act of rape, was certainly criminal under customary international law before the adoption of the ICC Statute, and even during the period of 1975 to 1979. If the individual acts were criminal, it follows that a combination of these acts could also have been prosecuted as other inhumane acts. Based on this observation, Robert Cryer in fact pointed out that “[f]orced pregnancy is not a new crime against humanity.”526

5.7 Conclusion The crime of forced pregnancy, which is encompassed in the ICC Statute as a war crime and a crime against humanity, protects the value of reproductive autonomy. 522 Ao

An and Yim Tith Decision on Investigative Requests 2016, above n 271, paras 39–81. paras 46–47. 524 ICC, Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Decision on the Confirmation of Charges, 30 September 2008, ICC-01/04-01/07, para 448; see also Werle and Jeßberger 2020, marginal nos 1115–1117 with further references. 525 Ao An and Yim Tith Decision on Investigative Requests 2016, above n 271, paras 66–77. 526 Cryer 2005, p 258. 523 Ibid.,

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The separate criminalization of forced pregnancy is an important milestone because it surfaces the unique harm of reproductive violence and acknowledges that such conduct can amount to the most serious international crimes. The inclusion of the crime of forced pregnancy was very controversial, and it is a striking success of the international women’s rights movement. Although the primary historical example of the crime was an ethnicity-related scenario, it is not limited to such contexts, but rather protects the individual’s reproductive autonomy independently from her membership in a particular (ethnic) group. This is unprecedented in international criminal law and was only possible due to the more progressive developments in the international human rights framework pertaining to the protection of reproductive rights. The interpretation of the elements of the crime, which as a result of the controversial negotiations are rather restricted and somewhat unusual, must be guided by internationally recognized human rights pursuant to Article 21(3) of the ICC Statute. As there is now much support for an international human right to an abortion at least in cases of a forcibly induced pregnancy, domestic laws violating this right do not shield perpetrators from individual criminal responsibility under international law. Irrespective of the possibilities of a human-rights-based interpretation of the crime’s elements, the definition in Article 7(2)(f) of the ICC Statute should be amended and the special intent requirement as well as the reference to national laws should be eliminated.

References Adamietz L (2011) Geschlecht als Erwartung: Das Geschlechtsdiskriminierungsverbot als Recht gegen Diskriminierung wegen der sexuellen Orientierung und der Geschlechtsidentität. Nomos, Baden-Baden Adams A (2013) Der Tatbestand der Vergewaltigung im Völkerstrafrecht. Duncker & Humblot, Berlin African Commission on Human and Peoples’ Rights (2014) General Comment no. 2 on Article 14.1 (a), (b), (c) and (f) and Article 14.2 (a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa Allen B (1996) Rape Warfare: The Hidden Genocide in Bosnia-Herzegovina and Croatia. University of Minnesota Press, Minneapolis/London Ambos K (2013a) Punishment Without a Sovereign? The Ius Puniendi Issue of International Criminal Law: A First Contribution Towards a Consistent Theory of International Criminal Law. Oxford Journal of Legal Studies 33:293–315 Ambos K (2013b) Treatise on International Criminal Law, vol 2: The Crimes and Sentencing. Oxford University Press, Oxford Ambos K (2015) The Overall Function of International Criminal Law: Striking the Right Balance Between the Rechtsgut and the Harm Principles. Criminal Law and Philosophy 9:301–329 Ambos K (2017) Genocide (Article 28B), Crimes Against Humanity (Article 28C), War Crimes (Article 28D) and the Crime of Aggression (Article 28M). In: Werle G, Vormbaum M (eds) The African Criminal Court. T.M.C. Asser Press, The Hague, pp 31–55 Ambos K (2018) Internationales Strafrecht: Strafanwendungsrecht, Völkerstrafrecht, Europäisches Strafrecht, Rechtshilfe, 5th edn. C.H. Beck, Munich

References

261

American Bar Association, Task Force on War Crimes in Former Yugoslavia (1993) Report on the International Tribunal to Adjudicate War Crimes Committed in the Former Yugoslavia. American Bar Association, Washington D.C. Arsanjani MJ (1999) The Rome Statute of the International Criminal Court. The American Journal of International Law 93:22–43 Askin KD (1997) War Crimes Against Women: Prosecution in International War Crimes Tribunals. Martinus Nijhoff, The Hague Askin KD (1999a) Crimes Within the Jurisdiction of the International Criminal Court. Criminal Law Forum 10:33–59 Askin KD (1999b) Women and International Humanitarian Law. In: Askin KD, Koenig DM (eds) Women and International Human Rights Law, vol 1. Transnational Publishers, New York, pp 41–87 Askin KD (2005) The Jurisprudence of International War Crimes Tribunals: Securing Gender Justice for Some Survivors. In: Durham H, Gurd T (eds) Listening to the Silences: Women and War. Martinus Nijhoff, Leiden, pp 126–153 Association Internationale de Droit Pénal, Istituto Superiore Internazionale di Scienze Criminali and Max Planck Institute for Foreign and International Criminal Law (1995) Draft Statute for an International Criminal Court – Alternative to the ILC-Draft: Siracusa-Draft, Siracusa/Freiburg. https://www.legal-tools.org/doc/39a534/pdf/. Accessed 24 October 2020 Bassiouni MC (2011) Crimes Against Humanity: Historical Evolution and Contemporary Application. Cambridge University Press, Cambridge Bassiouni MC, McCormick M (1996) Sexual Violence: An Invisible Weapon of War in the Former Yugoslavia. DePaul University, Chicago Bedont B (1999) Gender-Specific Provisions in the Statute of the International Criminal Court. In: Lattanzi F, Schabas WA (eds) Essays on the Rome Statute of the International Criminal Court, vol 1. Il Sirenze, Ripa di Fagnano Alto, pp 183–210 Bedont B, Hall-Martinez K (1999) Ending Impunity for Gender Crimes Under the International Criminal Court. The Brown Journal of World Affairs 6(1):65–85 Berro Pizzarossa L (2018) Here to Stay: The Evolution of Sexual and Reproductive Health and Rights in International Human Rights Law. Laws 7:29 Biehler A (2015) Das Vergewaltigungsverbot im bewaffneten Konflikt. Duncker & Humblot, Berlin Bitti G (2015) Article 21 and the Hierarchy of Sources of Law Before the ICC. In: Stahn C (ed) Law and Practice of the International Criminal Court. Oxford University Press, Oxford, pp 411–443 Boon K (2000) Rape and Forced Pregnancy Under the ICC Statute: Human Dignity, Autonomy, and Consent. Columbia Human Rights Law Review 32:625–675 Bresnick RO (1995) Reproductive Ability as a Sixth Ground of Persecution Under the Domestic and International Definitions of Refugee. Syracuse Journal of International Law and Commerce 21:121–153 Buehler C (2002) War Crimes, Crimes Against Humanity and Genocide: The Crime of Forced Pregnancy in the Nascent System of Supranational Criminal Law. Nemesis 18:158–167 Bunting A, Ikhimiukor IK (2018) The Expressive Nature of Law: What We Learn From Conjugal Slavery to Forced Marriage in International Criminal Law. International Criminal Law Review 18:331–353 Carpenter RC (2000a) Forced Maternity, Children’s Rights and the Genocide Convention: A Theoretical Analysis. Journal of Genocide Research 2:213–244 Carpenter RC (2000b) Surfacing Children: Limitations of Genocidal Rape Discourse. Human Rights Quarterly 22:428–477 Cassese A, Gaeta P (2013) International Criminal Law, 3rd edn. Oxford University Press, Oxford Chappell LA (2016) The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy. Oxford University Press, New York Chinkin C (1994) Rape and Sexual Abuse of Women in International Law. European Journal of International Law 5:326–341

262

5 Forced Pregnancy as a Crime Against Humanity and a War Crime

Chinkin C (2009) Gender-Related Violence and International Criminal Justice. In: Cassese A (ed) The Oxford Companion to International Criminal Justice. Oxford University Press, Oxford, pp 75–81 Commission of Experts (1994) Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), Annex to UN Doc. S/1994/674 Cook RJ, Cusack S (2011) Gender Stereotyping: Transnational Legal Perspectives. University of Pennsylvania Press, Philadelphia Copelon R (1994) Surfacing Gender: Re-Engraving Crimes Against Women in Humanitarian Law. Hastings Women’s Law Journal 5:243–266 Copelon R (2000) Gender Crimes as War Crimes: Integrating Crimes Against Women Into International Criminal Law. McGill Law Journal 46:217–240 Cottier M, Mzee S (2016) Article 8. In: Triffterer O, Ambos K (eds) Rome Statute of the International Criminal Court: A Commentary, 3rd edn. C.H. Beck, Munich Council of Europe Commissioner for Human Rights (2017) Women’s Sexual and Reproductive Health and Rights in Europe: Issue Paper. https://rm.coe.int/women-s-sexual-and-reproductivehealth-and-rights-in-europe-issue-pape/168076dead. Accessed 24 October 2020 Cryer R (2005) Prosecuting International Crimes: Selectivity and the International Criminal Law Regime. Cambridge University Press, Cambridge Cryer R, Robinson D, Vasiliev S (2019) An Introduction to International Criminal Law and Procedure, 4th edn. Cambridge University Press, Cambridge/New York D’Costa B, Hossain S (2010) Redress for Sexual Violence Before the International Crimes Tribunal in Bangladesh: Lessons From History, and Hopes for the Future. Criminal Law Forum 21:331–359 Daniel-Wrabetz J (2007) Children Born of War Rape in Bosnia-Herzegovina and the Convention on the Rights of the Child. In: Carpenter RC (ed) Born of War: Protecting Children of Sexual Violence Survivors in Conflict Zones. Kumarian Press, Bloomfield, pp 21–39 De Brouwer A-MLM (2005) Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR. Intersentia, Antwerp/Tilburg De Vos D (2016) Can the ICC Prosecute Forced Contraception? https://me.eui.eu/dieneke-de-vos/ blog/can-the-icc-prosecute-forced-contraception/. Accessed 24 October 2020 De Vos D (2019) Prosecuting Sexual and Gender-Based Violence at the International Criminal Court. In: Shepherd LJ (ed) Handbook on Gender and Violence. Edward Elgar, Cheltenham/Northampton, pp 395–413 deGuzman MM (2012) An Expressive Rationale for the Thematic Prosecution of Sex Crimes. In: Bergsmo M (ed) Thematic Prosecution of International Sex Crimes. Torkel Opsahl Academic Publisher, Beijing, pp 11–57 deGuzman MM (2016) Article 21. In: Triffterer O, Ambos K (eds) Rome Statute of the International Criminal Court: A Commentary, 3rd edn. C.H. Beck, Munich DeLaet D (2007) Theorizing Justice for War Babies. In: Carpenter RC (ed) Born of War: Protecting Children of Sexual Violence Survivors in Conflict Zones. Kumarian Press, Bloomfield, pp 128– 148 Delegation of Bosnia and Herzegovina (1998) Discussion Paper. https://legal-tools.org/en/doc/dd5 8b8/. Accessed 24 October 2020 Deutscher Bundestag (2002) Bundestags-Drucksache 14/8524. https://dipbt.bundestag.de/doc/btd/ 14/085/1408524.pdf. Accessed 24 October 2020 Dörmann K (2003) Elements of War Crimes Under the Rome Statute of the International Criminal Court: Sources and Commentary. Cambridge University Press, Cambridge Dörmann K (2016) Article 8. In: Triffterer O, Ambos K (eds) Rome Statute of the International Criminal Court: A Commentary, 3rd edn. C.H. Beck, Munich Dowds E (2019) Children Born of Sexual and Gender-Based Violence in Conflict: The International Criminal Court. Ecological Environments and Human Development, Children & Society 33:226– 238 Dowds E (2020) Feminist Engagement With International Criminal Law: Norm Transfer, Complementarity, Rape and Consent. Hart Publishing, Oxford

References

263

Drake AM (2012) Aimed at Protecting Ethnic Groups or Women? A Look at Forced Pregnancy Under the Rome Statute. William & Mary Journal of Women and the Law 18:595–623 Drumbl MA (2007) Atrocity, Punishment, and International Law. Cambridge University Press, Cambridge Durham H (2001) Women and Civil Society: NGOs and International Criminal Law. In: Askin KD, Koenig DM (eds) Women and International Human Rights Law, vol 3. Transnational Publishers, New York, pp 819–843 Durham H, O’Byrne K (2010) The Dialogue of Difference: Gender Perspectives on International Humanitarian Law. International Review of the Red Cross 92:31–52 Engle K (2005) Feminism and its (Dis)Contents: Criminalizing Wartime Rape in Bosnia and Herzegovina. The American Journal of International Law 99:778–816 Epik A (2017) Die Strafzumessung bei Taten nach dem Völkerstrafgesetzbuch. Mohr Siebeck, Tübingen Eriksson MK (2000) Reproductive Freedom: In the Context of International Human Rights and Humanitarian Law. Martinus Nijhoff, The Hague/London Fisher SK (1996) Occupation of the Womb: Forced Impregnation as Genocide. Duke Law Journal 46:91–133 Fleishman R (2000) The Battle Against Reproductive Rights: The Impact of the Catholic Church on Abortion Law in Both International and Domestic Arenas. Emory International Law Review 14:277–314 Gardam JG, Jarvis MJ (2001) Women, Armed Conflict and International Law. Kluwer Law International, The Hague/London Glasius M (2006) The International Criminal Court: A Global Civil Society Achievement. Routledge, London Global Justice Center (2018) Submission to the International Law Commission: The Need to Integrate a Gender-Perspective Into the Draft Convention on Crimes Against Humanity. https:// www.globaljusticecenter.net/blog/19-publications/1011-submission-to-the-international-lawcommission-the-need-to-integrate-a-gender-perspective-into-the-draft-convention-on-crimesagainst-humanity. Accessed 24 October 2020 Goldstein AT (1993) Recognizing Forced Impregnation as a War Crime Under International Law: A Special Report of the International Program. The Center for Reproductive Law & Policy, New York Graditzky T (1999) War Crime Issues Before the Rome Diplomatic Conference on the Establishment of an International Criminal Court. U. C. Davis Journal of International Law & Policy 5:199–217 Green J, Copelon R, Cotter P, Stephens B (1994) Affecting the Rules for the Prosecution of Rape and Other Gender-Based Violence Before the International Criminal Tribunal for the Former Yugoslavia: A Feminist Proposal and Critique. Hastings Women’s Law Journal 5:171–241 Grewal K (2012) The Protection of Sexual Autonomy Under International Criminal Law: The International Criminal Court and the Challenge of Defining Rape. Journal of International Criminal Justice 10:373–396 Grey R (2017) The ICC’s First “Forced Pregnancy” Case in Historical Perspective. Journal of International Criminal Justice 15:905–930 Grey R (2019) Prosecuting Sexual and Gender-Based Crimes at the International Criminal Court: Practice, Progress and Potential. Cambridge University Press, Cambridge Grey R (forthcoming) Reproductive Crimes in International Criminal Law. In: Rosenthal I, Oosterveld V, SáCouto S (eds) Gender and International Criminal Law. Oxford University Press, Oxford Gropengießer H, Kreicker H (2003) Grundlagen der Strafverfolgung völkerrechtlicher Verbrechen: Deutschland. In: Eser A, Kreicker H (eds) Nationale Strafverfolgung völkerrechtlicher Verbrechen, Band 1: Deutschland. Duncker & Humblot, Berlin, pp 21–452 Grover L (2014) Interpreting Crimes in the Rome Statute of the International Criminal Court. Cambridge University Press, Cambridge

264

5 Forced Pregnancy as a Crime Against Humanity and a War Crime

Hall CK (1998) The Fifth Session of the UN Preparatory Committee on the Establishment of an International Criminal Court. The American Journal of International Law 92:331–339 Hall CK, Powderly J, Hayes N (2016) Article 7. In: Triffterer O, Ambos K (eds) Rome Statute of the International Criminal Court: A Commentary, 3rd edn. C.H. Beck, Munich Hall CK, Stahn C (2016) Article 7. In: Triffterer O, Ambos K (eds) Rome Statute of the International Criminal Court: A Commentary, 3rd edn. C.H. Beck, Munich Halley J (2008) Rape at Rome: Feminist Interventions in the Criminalization of Sex-Related Violence in Positive International Criminal Law. Michigan Journal of International Law 30:1–123 Healey SA (1995–1996) Prosecuting Rape Under the Statute of the War Crimes Tribunal for the Former Yugoslavia. Brooklyn Journal of International Law 21:327–383 Helsinki Watch (1993) War Crimes in Bosnia-Hercegovina, vol II. Human Rights Watch, New York/London Holy See (1998) Intervention at the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. https://www.catholicculture.org/culture/library/view.cfm?rec num=459. Accessed 24 October 2020 International Commission of Jurists (1998) Definition of Crimes: ICJ Brief no. 1 to the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. https://www.legal-tools.org/en/doc/9fd889/. Accessed 24 October 2020 International Law Commission (2019) Report of the International Law Commission: SeventyFirst Session: 29 April–7 June and 8 July–9 August 2019, General Assembly Official Records, Seventy-Fourth Session, Supplement no. 10 (A/74/10), Chap. IV Joseph JH (2008) Gender and International Law: How the International Criminal Court Can Bring Justice to Victims of Sexual Violence. Texas Journal of Women and the Law 18:61–101 Koenig DM, Askin KD (2000) International Criminal Law and the International Criminal Court Statute: Crimes Against Women. In: Askin KD, Koenig DM (eds) Women and International Human Rights Law, vol 2. Transnational Publishers, New York, pp 3–29 Kuschnik B (2009) Der Gesamttatbestand des Verbrechens gegen die Menschlichkeit: Herleitungen, Ausprägungen, Entwicklungen. Duncker & Humblot, Berlin La Haye E (2000) Article 8(2)(b)(xxii)-Rape, Sexual Slavery, Enforced Prostitution, Forced Pregnancy, Enforced Sterilization, and Sexual Violence. In: Lee RS (ed) The International Criminal Court, vol 2: Elements of Crimes and Rules of Procedure and Evidence. Transnational Publishers, Ardsley, pp 184–199 Laverty C (2018) What Lies Beneath? The Turn to Values in International Criminal Legal Discourse. EJIL:Talk! https://www.ejiltalk.org/what-lies-beneath-the-turn-to-values-in-internati onal-criminal-legal-discourse/. Accessed 24 October 2020 Lobato M (2016) Forced Pregnancy During the Khmer Rouge Regime: Acknowledging Forced Pregnancy as a Distinct Crime in the ECCC Proceedings. Cambodian Human Rights Action Coalition, Phnom Penh MacKinnon CA (1993) Crimes of War, Crimes of Peace. UCLA Women’s Law Journal 4:59–86 MacKinnon CA (1994) Rape, Genocide, and Women’s Human Rights. Harvard Women’s Law Journal 17:5–16 MacKinnon CA (2006) Defining Rape Internationally: A Comment on Akayesu. Columbia Journal of Transnational Law 44:940–958 Markovic M (2007) Vessels of Reproduction: Forced Pregnancy and the ICC. Michigan State Journal of International Law 16:439–458 Meseke S (2004) Der Tatbestand der Verbrechen gegen die Menschlichkeit nach dem Römischen Statut des Internationalen Strafgerichtshofes: Eine völkerstrafrechtliche Analyse. Berliner Wissenschaftsverlag, Berlin Möller C (2001) Sexuelle Gewalt im Krieg. In: Hasse J, Müller E, Schneider P (eds) Humanitäres Völkerrecht: Politische, rechtliche und strafgerichtliche Dimensionen. Nomos, Baden-Baden, pp 280–303

References

265

Moshan BS (1998) Women, War, and Words: The Gender Component in the Permanent International Criminal Court’s Definition of Crimes Against Humanity. Fordham International Law Journal 22:154–184 Neenan J (2018) The Role of the ICC in Protecting the Rights of Children Born of Rape in War. EJIL:Talk! https://www.ejiltalk.org/the-role-of-the-icc-in-protecting-the-rights-of-chi ldren-born-of-rape-in-war/. Accessed 24 October 2020 Odio-Benito E (2005) Sexual Violence as a War Crime. In: Fernández Sánchez PA (ed) The New Challenges of Humanitarian Law in Armed Conflicts: In Honour of Professor Juan Antonio Carrillo-Salcedo. Martinus Nijhoff, Leiden, pp 163–173 Oja L, Yamin AE (2016) “Woman” in the European Human Rights System: How is the Reproductive Rights Jurisprudence of the European Court of Human Rights Constructing Narratives of Women’s Citizenship? Columbia Journal of Gender and Law 32:62–95 Oosterveld V (1999) The Making of a Gender-Sensitive International Criminal Court. International Law Forum Du Droit International 1:38–41 Oosterveld V (2011) Forced Marriage and the Special Court for Sierra Leone: Legal Advances and Conceptual Difficulties. Journal of International Humanitarian Legal Studies 2:127–158 Oosterveld V (2013) Evaluating the Special Court for Sierra Leone’s Gender Jurisprudence. In: Jalloh CC (ed) The Sierra Leone Special Court and its Legacy: The Impact for Africa and International Criminal Law. Cambridge University Press, Cambridge, pp 234–259 Pace W, Schense J (2000) The Coalition of the International Criminal Court at the Preparatory Commission. In: Lee RS (ed) The International Criminal Court, vol 2: Elements of Crimes and Rules of Procedure and Evidence. Transnational Publishers, Ardsley, pp 705–733 Parliamentary Assembly of the Council of Europe (2008) Access to Safe and Legal Abortion in Europe, Resolution 1607 (2008) Paul A (2008) Kritische Analyse und Reformvorschlag zu Art. II Genozidkonvention. Springer, Berlin/Heidelberg/New York Preparatory Commission for the International Criminal Court (1999a) Proposal Submitted by the United States of America: Draft Elements of Crimes, UN Doc. PCNICC/1999/DP.4/Add. 1 Preparatory Commission for the International Criminal Court (1999b) Proposal Submitted by Spain: Working Paper on Elements of Crimes, UN Doc. PCNICC/1999/DP.9/Add.2 Preparatory Commission for the International Criminal Court (1999c) Proposal Submitted by Costa Rica, Hungary and Switzerland on Certain Provisions of Article 8 para. 2 (b) of the Rome Statute of the International Criminal Court: (viii), (x), (xiii), (xiv), (xv), (xvi), (xxi), (xxii), (xxvi), UN Doc. PCNICC/1999/WGEC/DP.8 Preparatory Commission for the International Criminal Court (1999d) Proposal Submitted by Colombia: Comments on the Proposal by the Delegations of Costa Rica, Hungary and Switzerland Concerning Article 8, Paragraph 2 (b) of the Rome Statute (PCNICC/1999/WGEC/DP.8), UN Doc. PCNICC/1999/WGEC/DP.16 Preparatory Commission for the International Criminal Court (1999e) Proceedings of the Preparatory Commission at its Second Session (26 July –13 August 1999), UN Doc. PCNICC/1999/L.4/Rev.1 Preparatory Commission for the International Criminal Court (1999f) Comments by Colombia on Document PCNICC/1999/WGEC/RT.6 Proposed by the Coordinator, UN Doc. PCNICC/1999/WGEC/DP.30 Preparatory Commission for the International Criminal Court (1999g) Proposal Submitted by Canada and Germany on Article 7, UN Doc. PCNICC/1999/WGEC/DP.36 Preparatory Commission for the International Criminal Court (1999h) Proposal Submitted by Bahrain, Iraq, Kuwait, Lebanon, the Libyan Arab Jamahiriya, Oman, Qatar, Saudi Arabia, the Sudan, the Syrian Arab Republic and United Arab Emirates Concerning the Elements of Crimes Against Humanity, UN Doc. PCNICC/1999/WGEC/DP.39 Preparatory Commission for the International Criminal Court (2000a) Comments by Colombia on the Elements of Crimes in Article 7 in Document PCNICC/1999/L.5/Rev.1/Add.2, UN Doc. PCNICC/2000/WGEC/DP.2

266

5 Forced Pregnancy as a Crime Against Humanity and a War Crime

Preparatory Commission for the International Criminal Court (2000b) Comments by Colombia Regarding the Elements of Crimes of Article 8 (2) (b), 8 (2) (c) and 8 (2) (e) in Document PCNICC/1999/L.5/Rev.1/Add.2, UN Doc. PCNICC/2000/WGEC/DP.4 Preparatory Commission for the International Criminal Court (2000c) Proceedings of the Preparatory Commission at its Fourth Session (13–31 March 2000), Annex III: Elements of Crimes, UN Doc. PCNICC/2000/L.1/Rev.1/Add.2 Preparatory Commission for the International Criminal Court (2000d) Report: Part II: Finalized Draft Text of the Elements of Crimes, UN Doc. PCNICC/2000/1/Add.2 Preparatory Committee on the Establishment of an International Court (1996a) Report, Volume I, General Assembly Official Records, Fifty-First Session, Supplement no. 22 (A/51/22) Preparatory Committee on the Establishment of an International Court (1996b) Report, Volume II, General Assembly Official Records, Fifty-First Session, Supplement no. 22A (A/51/22) Preparatory Committee on the Establishment of an International Court (1997a) Draft Consolidated Text: Crimes Against Humanity, UN Doc. A/AC.249/1997/WG.1/CRP.5 Preparatory Committee on the Establishment of an International Court (1997b) Draft Consolidated Text: War Crimes, UN Doc. A/AC.249/1997/WG.1/CRP.2 Preparatory Committee on the Establishment of an International Court (1997c) Informal Working Paper on War Crimes: Addendum, UN Doc. A/AC.249/1997/WG.1/CRP.7/Add.1 Preparatory Committee on the Establishment of an International Court (1997d) Informal Working Paper on War Crimes, UN Doc. A/AC.249/1997/WG.1/CRP.8 Preparatory Committee on the Establishment of an International Court (1997e) Proposal Submitted by the Holy See, UN Doc. A/AC.249/1997/WG.1/DP.12 Preparatory Committee on the Establishment of an International Court (1997f) War Crimes, UN Doc. A/AC.249/1997/WG.1/CRP.9 Preparatory Committee on the Establishment of an International Court (1997g) Decisions Taken by the Preparatory Committee at its Session Held From 1 to 12 December 1997, UN Doc. A/AC.249/1997/L.9/Rev.1 Preparatory Committee on the Establishment of an International Court (1998a) Proposal Submitted by the Holy See, UN Doc. A/AC.249/1998/DP.13 Preparatory Committee on the Establishment of an International Court (1998b) Report, UN Doc. A/CONF.183/2 Raab A, Hobbs S (2018) Forced Relationships: Prosecutorial Discretion as a Pathway to SurvivorCentric Justice. Opinio Juris. https://opiniojuris.org/2018/09/13/forced-relationships-prosecuto rial-discretion-as-a-pathway-to-survivor-centric-justice/. Accessed 24 October 2020 Ray AE (1997) The Shame of It: Gender-Based Terrorism in the Former Yugoslavia and the Failure of International Human Rights Law to Comprehend the Injuries. The American University Law Review 46:793–840 Rimmer SH (2010) Gender and Transitional Justice: The Women of East Timor. Routledge, London Roach SC (2005) Arab States and the Role of Islam in the International Criminal Court. Political Studies 53:143–161 Robinson D (1999) Defining “Crimes Against Humanity” at the Rome Conference. The American Journal of International Law 93:43–57 Robinson D (2000) Article 7(1)(g)-Crime Against Humanity of Rape, Sexual Slavery, Enforced Prostitution, Forced Pregnancy, Enforced Sterilization, or Any Other Form of Sexual Violence of Comparable Gravity. In: Lee RS (ed) The International Criminal Court, vol 2: Elements of Crimes and Rules of Procedure and Evidence. Transnational Publishers, Ardsley, p 93 Rubio-Marín R (2009) The Gender of Reparations in Transitional Societies. In: Rubio-Marín R (ed) The Gender of Reparations: Unsettling Sexual Hierarchies While Redressing Human Rights Violations. Cambridge University Press, Cambridge, pp 63–120 Rubio-Marín R (2012) Reparations for Conflict-Related Sexual and Reproductive Violence: A Decalogue. William & Mary Journal of Women and the Law 19:69–104

References

267

Rückert W, Witschel G (2001) Genocide and Crimes Against Humanity in the Elements of Crimes. In: Fischer H, Kreß C, Lüder SR (eds) International and National Prosecution of Crimes Under International Law: Current Developments. Arno Spitz GmbH, Berlin, pp 59–93 Salzmann TA (1998) Rape Camps as a Means of Ethnic Cleansing: Religious, Cultural, and Ethical Responses to Rape Victims in the Former Yugoslavia. Human Rights Quarterly 20:348–378 Satzger H (2002) Das neue Völkerstrafgesetzbuch – Eine kritische Würdigung. Neue Zeitschrift für Strafrecht 2002:125–132 Schabas W (2016) The International Criminal Court: A Commentary on the Rome Statute, 2nd edn. Oxford University Press, Oxford Schomburg W, Peterson I (2007) Genuine Consent to Sexual Violence Under International Criminal Law. The American Journal of International Law 101:121–140 Schwarz A (2019) Das völkerrechtliche Sexualstrafrecht: Sexualisierte und geschlechtsbezogene Gewalt vor dem Internationalen Strafgerichtshof. Duncker & Humblot, Berlin Short JMH (2003) Sexual Violence as Genocide: The Developing Law of the International Criminal Tribunals and the International Criminal Court. Michigan Journal of Race & Law 8:503–527 Soh SEJ (2006) Forced Pregnancy: Codification in the Rome Statute and its Prospect as Implicit Genocide. New Zealand Journal of Public and International Law 4:311–337 Steains C (1999) Gender Issues. In: Lee RS (ed) The International Criminal Court, vol 1: The Making of the Rome Statute: Issues, Negotiations, Results. Kluwer Law International, The Hague/London, pp 357–390 The Office of the Prosecutor of the International Criminal Court (2016) Policy on Children. https:// www.icc-cpi.int/iccdocs/otp/20161115_OTP_ICC_Policy-on-Children_Eng.PDF. Accessed 24 October 2020 Tompkins TL (1995) Prosecuting Rape as a War Crime: Speaking the Unspeakable. Notre Dame Law Review 70:845–891 Toy-Cronin BA (2010) What is Forced Marriage? Towards a Definition of Forced Marriage as a Crime Against Humanity. Columbia Journal of Gender and Law 19:539–590 United Nations Ad Hoc Committee on the Establishment of an International Criminal Court (1995a) Informal Paper Submitted by the Bureau: Substantive Law and Jurisdiction. https://legal-tools. org/doc/f09f54. Accessed 24 October 2020 United Nations Ad Hoc Committee on the Establishment of an International Criminal Court (1995b) Report, General Assembly Official Records, Fiftieth Session, Supplement no. 22 (A/50/22) United Nations Commission on Human Rights (1995) Resolution 1995/85 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/1995/85 United Nations Commission on Human Rights (1996) Resolution 1996/49 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/1996/49 United Nations Commission on Human Rights (1997a) Resolution 1997/44 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/1997/44 United Nations Commission on Human Rights (1997b) Resolution 1997/78 on Rights of the Child, UN Doc. E/CN.4/RES/1997/78 United Nations Commission on Human Rights (1998a) Resolution 1998/52 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/1998/52 United Nations Commission on Human Rights (1998b) Resolution 1998/76 on Rights of the Child, UN Doc. E/CN.4/RES/1998/76 United Nations Commission on Human Rights (1999) Resolution 1999/42 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/1999/42 United Nations Commission on Human Rights (2001) Resolution 2001/49 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/2001/49 United Nations Commission on Human Rights (2002) Resolution 2002/52 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/2002/52 United Nations Commission on Human Rights (2003) Resolution 2003/45 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/2003/45

268

5 Forced Pregnancy as a Crime Against Humanity and a War Crime

United Nations Commission on Human Rights (2004) Resolution 2004/46 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/2004/46 United Nations Commission on Human Rights (2005) Resolution 2005/41 on Elimination of Violence Against Women, UN Doc. E/CN.4/RES/2005/41 United Nations Committee Against Torture (2013a) Concluding Observations on Kenya, UN Doc. CAT/C/KEN/CO/2 United Nations Committee Against Torture (2013b) Concluding Observations on Poland, UN Doc. CAT/C/POL/CO/5-6 United Nations Committee Against Torture (2016) Concluding Observations on the Philippines, UN Doc. CAT/C/PHL/CO/3 United Nations Committee on Economic, Social and Cultural Rights (2001) Concluding Observations on Nepal, UN Doc. E/C.12/1/Add.66 United Nations Committee on Economic, Social and Cultural Rights (2004) Concluding Observations on Chile, UN Doc. E/C.12/1/Add.105 United Nations Committee on Economic, Social and Cultural Rights (2008) Concluding Observations on Costa Rica, UN Doc. E/C.12/CRI/CO/4 United Nations Committee on Economic, Social and Cultural Rights (2014) Concluding Observations on El Salvador, UN Doc. E/C.12/SLV/CO/3-5 United Nations Committee on Economic, Social and Cultural Rights (2016) General Comment no. 22 (2016) on the Right to Sexual and Reproductive Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), UN Doc. E/C.12/GC/22 United Nations Committee on the Elimination of Discrimination Against Women (1994) General Recommendation no. 21: Equality in Marriage and Family Relations, General Assembly Official Records, Forty-Ninth Session, Supplement no. 38 (A/49/38) United Nations Committee on the Elimination of Discrimination Against Women (1999) General Recommendation no. 24: Article 12 of the Convention (Women and Health), General Assembly Official Records, Fifty-Fourth Session, Supplement no. 38 (A/54/38/Rev.1) United Nations Committee on the Elimination of Discrimination Against Women (2011) Communication no. 22/2009: Views Adopted by the Committee at its Fiftieth Session, 3 to 21 October 2011, UN Doc. CEDAW/C/50/D/22/2009 United Nations Committee on the Elimination of Discrimination Against Women (2013a) Concluding Observations on Angola, UN Doc. CEDAW/C/AGO/CO/6 United Nations Committee on the Elimination of Discrimination Against Women (2013b) General Recommendation no. 30 on Women in Conflict Prevention, Conflict and Post-Conflict Situations, UN Doc. CEDAW/C/GC/30 United Nations Committee on the Elimination of Discrimination Against Women (2014) Concluding Observations on Peru, UN Doc. CEDAW/C/PER/CO/7-8 United Nations Committee on the Elimination of Discrimination Against Women (2015) Summary of the Inquiry Concerning the Philippines, UN Doc. CEDAW/C/OP.8/PHL/1 United Nations Committee on the Elimination of Discrimination Against Women (2017a) Concluding Observations on El Salvador, UN Doc. CEDAW/C/SLV/CO/8-9 United Nations Committee on the Elimination of Discrimination Against Women (2017b) General Recommendation no. 35 on Gender-Based Violence Against Women, Updating General Recommendation no. 19, UN Doc. CEDAW/C/GC/35 United Nations Committee on the Elimination of Discrimination Against Women (2018a) Inquiry Concerning the United Kingdom of Great Britain and Northern Ireland, UN Doc. CEDAW/C/OP.8/GBR/1 United Nations Committee on the Elimination of Discrimination Against Women (2018b) Concluding Observations on Palestine, UN Doc. CEDAW/C/PSE/CO/1 United Nations Committee on the Rights of Persons With Disabilities and United Nations Committee on the Elimination of Discrimination Against Women (2018) Guaranteeing Sexual and Reproductive Health and Rights for all Women, in Particular Women With Disabilities: Joint Statement by the Committee on the Rights of Persons With Disabilities and the Committee on the Elimination

References

269

of All Forms of Discrimination Against Women. https://www.ohchr.org/EN/HRBodies/CRPD/ Pages/CRPDStatements.aspx. Accessed 24 October 2020 United Nations Department of Economic and Social Affairs, Population Division (2014) Abortion Policies and Reproductive Health Around the World United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (1998a) Official Records (Volume II), UN Doc. A/CONF.183/13 (Vol. II) United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (1998b) Proposal Submitted by the United States of America, UN Doc. A/CONF.183/C.1/L.10 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (1998c) Article 5 Crimes Within the Jurisdiction of the Court: Crimes Against Humanity – Recommendations of the Coordinator, UN Doc. A/CONF.183/C.1/L.44 United Nations Economic and Social Council (1988) Report of the Special Rapporteur, Mr. P. Kooijmans, Pursuant to Commission on Human Rights Resolution 1987/29, UN Doc. E/CN.4/1988/17 United Nations General Assembly (1989) Resolution 44/39, UN Doc. A/RES/44/39 United Nations General Assembly (1995) Resolution 50/46, UN Doc. A/RES/50/46 United Nations General Assembly (1998) Resolution 52/160, UN Doc. A/RES/52/160 United Nations General Assembly (2019) Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences on a Human Rights-Based Approach to Mistreatment and Violence Against Women in Reproductive Health Services With a Focus on Childbirth and Obstetric Violence, UN Doc. A/74/137 United Nations Human Rights Committee (2012a) Concluding Observations on the Dominican Republic, UN Doc. CCPR/C/DOM/CO/5 United Nations Human Rights Committee (2012b) Concluding Observations on the Philippines, UN Doc. CCPR/C/PHL/CO/4 United Nations Human Rights Committee (2018a) Concluding Observations on Guatemala, UN Doc. CCPR/C/GTM/CO/4 United Nations Human Rights Committee (2018b) General Comment no. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, UN Doc. CCPR/C/GC/36 United Nations Human Rights Council (2015) Violations and Abuses Committed by Boko Haram and the Impact on Human Rights in the Countries Affected: Report of the United Nations High Commissioner for Human Rights, UN Doc. A/HRC/30/67 United Nations Human Rights Council (2016) Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. A/HRC/31/57 United Nations Security Council (2019) Conflict-Related Sexual Violence: Report of the SecretaryGeneral, UN Doc. S/2019/280 Vest H, Sutter U (2014) Art. 264a lit. g. In: Vest H, Ziegler AR, Lindenmann J, Wehrenberg S (eds) Die völkerstrafrechtlichen Bestimmungen des StGB: Kommentar zu Art. 101, 259, 260bis und 264–264n. Dike/Nomos, Zürich/Baden-Baden von Hebel H, Robinson D (1999) Crimes Within the Jurisdiction of the Court. In: Lee RS (ed) The International Criminal Court, vol 1: The Making of the Rome Statute: Issues, Negotiations, Results. Kluwer Law International, The Hague/London, pp 79–126 Weiß N (2001) Vergewaltigung und erzwungene Mutterschaft als Verbrechen gegen die Menschlichkeit, Kriegsverbrechen und Genozid: Wie beurteilen sich diese Vorfälle aus der Perspektive der Kinder, die gewaltsam gezeugt wurden? MenschenRechtsMagazin 2001:132–142 Werkmeister A (2015) Straftheorien im Völkerstrafrecht. Nomos, Baden-Baden Werle G (2018) § 7 Völkerstrafgesetzbuch. In: Joecks W, Miebach K (eds) Münchener Kommentar zum Strafgesetzbuch: Band 8: Nebenstrafrecht III, Völkerstrafgesetzbuch, 3rd edn. C.H. Beck, Munich Werle G, Jeßberger F (2020) Völkerstrafrecht, 5th edn. Mohr Siebeck, Tübingen

270

5 Forced Pregnancy as a Crime Against Humanity and a War Crime

Wilkins RG, Reynolds J (2006) International Law and the Right to Life. Ave Maria Law Review 4:123–170 Women in the Law Project (1994) No Justice, No Peace: Accountability for Rape and Gender-Based Violence in the Former Yugoslavia. Hastings Women’s Law Journal 5:91–127 Women’s Caucus for Gender Justice (1997) Recommendations and Commentary for December 1997 PrepCom on the Establishment of an International Criminal Court, United Nations Headquarters December 1–12, 1997 (on file with author) Women’s Caucus for Gender Justice (1998) The Crime of Forced Pregnancy. iccwomen.org/wigjdr aft1/Archives/oldWCGJ/icc/iccpc/rome/forcedpreg.html. Accessed 24 October 2020 Women’s Caucus for Gender Justice (1999) Recommendations and Commentary for the Elements Annex: Submitted to the July 26 – August 13 1999 Preparatory Commission for the International Criminal Court. iccwomen.org/wigjdraft1/Archives/oldWCGJ/icc/iccpc/071999pc/ele ments.html. Accessed 24 October 2020 Zampas C, Gher JM (2008) Abortion as a Human Right: International and Regional Standards. Human Rights Law Review 8:249–294 Zimmermann A, Geiß R (2018) § 8 Völkerstrafgesetzbuch. In: Joecks W, Miebach K (eds) Münchener Kommentar zum Strafgesetzbuch: Band 8: Nebenstrafrecht III, Völkerstrafgesetzbuch, 3rd edn. C.H. Beck, Munich Zulficar M (1994–1995) From Human Rights to Program Reality: Vienna, Cairo, and Beijing in Perspective. American University Law Review 44:1017–1036

Chapter 6

Enforced Sterilization and Other Forms of Reproductive Violence as Crimes Against Humanity and War Crimes

Contents 6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 The Crime of Enforced Sterilization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.1 Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.2 Elements of the Crime of Enforced Sterilization . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.3 Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 “Unnamed” Reproductive Crimes: Implicit Prosecution of Reproductive Violence . . . . . 6.3.1 The Categorization of Reproductive Violence as “Any Other Form of Sexual Violence”? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.2 Persecution on the Grounds of Gender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.3 Necessity of Separate Reproductive Crimes? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter addresses the potentials of the ICC Statute to respond to negative forms of reproductive violence under the umbrella of crimes against humanity and war crimes. It first examines the crime of enforced sterilization, which has played no role in the practice of any modern international criminal court thus far. There appears to be a reluctance on the part of prosecutors to charge acts causing permanent loss of reproductive capacity explicitly as enforced sterilization. This is problematic because it erases the unique harm suffered by the victims from the narrative of international trials. The second part of the chapter addresses other forms of reproductive violence not explicitly criminalized. It is argued that the ICC Statute offers a broad array of more general crimes which can and should be used to prosecute acts such as forced abortion and forced contraception. The analysis also highlights that the lack of distinction between the concepts of sexual and reproductive violence in the ICC Statute is problematic and proposes amendments in this regard. Keywords Enforced sterilization · Forced abortion · Forced contraception · ICC Statute · Reproductive capacity · Sexual violence · Reproductive violence · Residual clause · Persecution · Explicit criminalization

© t.m.c. asser press and the author 2021 T. Altunjan, Reproductive Violence and International Criminal Law, International Criminal Justice Series 29, https://doi.org/10.1007/978-94-6265-451-8_6

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6.1 Introduction Besides the crime of forced pregnancy, the ICC Statute includes a further explicit reproductive crime: enforced sterilization, which is encompassed both as a crime against humanity and as a war crime. Furthermore, beyond these two explicit crimes, the ICC Statute has the potential to apply to many other manifestations of reproductive violence. In the absence of an explicit criminalization, more general offenses such as persecution or sexual violence may be used in order to prosecute such conduct. This chapter portrays avenues, in a non-exhaustive manner, for the prosecution of reproductive violence as crimes against humanity and war crimes. While this method of implicit prosecution is a very important tool in addressing the broad scope of conflictrelated gender-based crimes, the chapter concludes with a discussion of the benefits of a separate criminalization pertaining to certain manifestations of reproductive violence.

6.2 The Crime of Enforced Sterilization While the practice of enforced sterilization has received the broadest attention out of all reproductive crimes in the early stages of international criminal law, the corresponding crime in the ICC Statute has not been subject to any prosecutions thus far. In fact, the crime of enforced sterilization has played no practical role in modern international criminal law at all. The following subsections discuss the negotiating history and the elements of this crime under the ICC Statute.

6.2.1 Historical Background The crime of enforced sterilization received international attention particularly against the background of the respective acts committed in Nazi Germany.1 The ICC Statute is the first instrument to explicitly codify the crime of enforced sterilization,2 although it has been prosecuted under more general charges in the past.3

1 See

Grey 2017, p 919; Vest and Sutter 2014, marginal no 529; Zimmermann and Geiß 2018, marginal no 155. 2 See De Brouwer 2005, p 146; La Haye 2000, p 195; Schwarz 2019, p 266; Vest and Sutter 2014, marginal no 529; Werle and Jeßberger 2020, marginal no 1079. 3 See Chap. 3, Sect. 3.3.2 and Chap. 4, Sect. 4.4.1.2.

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Negotiating History

Like the crime of forced pregnancy,4 the war crime of enforced sterilization was first added to the draft Statute at the December 1997 session of the Preparatory Committee.5 This addition also originated from a suggestion by the Women’s Caucus for Gender Justice in the International Criminal Court.6 It was added without brackets, indicating consensus.7 As there were no further objections at the final session, the war crime of enforced sterilization was part of the draft Statute recommended by the Preparatory Committee.8 At the Rome Conference, there appeared to be no disagreement on the inclusion of the crime of enforced sterilization, and it was thus adopted as both a crime against humanity and a war crime. However, there was some disagreement on the elements of the crime of enforced sterilization during the negotiations in the Preparatory Commission. During the first session of the Commission, the United States delegation proposed elements for the crime that focused on non-consensual “termination of the natural reproductive capacity”.9 During the second session, more proposals, which were all rather similar, followed, namely by Costa Rica/Hungary/Switzerland,10 Belgium,11 and Colombia.12 However, the discussion paper compiled by the Coordinator of the PrepCom’s Working Group on the Elements of Crimes during the second session deviated from these suggestions and was already very similar to the final provision: 2. The accused deprived one or more persons of biological reproductive capacity. (Footnote: The deprivation is not intended to include birth-control measures.) 3. The conduct neither was justified by the medical or hospital treatment of the person or persons concerned nor was carried out with their genuine consent. (Footnote: It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity.)13

The most controversial aspect of this proposal was the exclusion of birth control measures in the footnote to the second element.14 As pointed out jointly by Canada 4 See

Chap. 5, Sect. 5.3.2. Committee on the Establishment of an International Court 1997b. 6 Women’s Caucus for Gender Justice 1997. See also Glasius 2006, p 88. 7 In fact, the Holy See did not object to the crime of enforced sterilization, unlike other crimes in the newly-added category of sexualized and gender-based crimes, see Preparatory Committee on the Establishment of an International Court 1997a. 8 Preparatory Committee on the Establishment of an International Court 1998. 9 Preparatory Commission for the International Criminal Court 1999a. 10 Preparatory Commission for the International Criminal Court 1999b: “The perpetrator coerced a person to be sterilized.” 11 Preparatory Commission for the International Criminal Court 1999c: “The perpetrator caused a person to be sterile under circumstances which constituted coercion.” 12 Preparatory Commission for the International Criminal Court 1999d: “The agent sterilizes a person without his or her consent.” 13 Preparatory Commission for the International Criminal Court 1999e, p 72. 14 See also Hall et al. 2016, marginal no 67. 5 Preparatory

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and Germany, this phrase might “nullify the entire crime”, because sterilization may be categorized as a form of birth control.15 Colombia agreed, pointing out that “[a] crime exists only when the means used is force, and therefore any personal or voluntary decision concerning birth control is excluded.”16 Accordingly, it later proposed the element of forcible deprivation of reproductive capacity and the deletion of the reference to consent.17 However, the Chinese delegation insisted on the following footnote: “The deprivation is not intended to include national birth-rate control measures aiming at controlling the growth rate of the nation’s whole population.”18 None of these proposals found a majority during the negotiations. The coordinator’s proposal originating from the second session was adopted with only slight linguistic variations. Likely in order to dispel the concerns raised by Canada and Germany, the footnote in question was amended to exclude only birth-control measures with a non-permanent effect.

6.2.1.2

Enforced Sterilization in Other Statutes

Following the ICC Statute, the crime of enforced sterilization is also included as both a crime against humanity and a war crime in the Statute of the Special Panels for Serious Crimes in the Courts of Dili in East Timor19 and the proposed Statute of the African Criminal Court.20 It appears only as a war crime in the Law on the Specialist Chambers in Kosovo21 and only as a crime against humanity in the Statute of the Extraordinary African Chambers.22 It is completely absent from the Statute of the Special Tribunal for Sierra Leone: Pertaining to crimes against humanity, the Statute largely copies the ICC’s provision on sexualized and gender-based violence as crimes against humanity, but curiously omits only enforced sterilizations.23 The 15 Preparatory

Commission for the International Criminal Court 1999f, p 7, footnote 11. Commission for the International Criminal Court 1999g, p 3. 17 Preparatory Commission for the International Criminal Court 2000a; Preparatory Commission for the International Criminal Court 2000b. 18 Preparatory Commission for the International Criminal Court 1999h. 19 Statute of the Special Panels for Serious Crimes in the Courts of Dili, Regulation no. 2000/15 on the Establishment of Panels With Exclusive Jurisdiction Over Serious Criminal Offences, UN Doc. UNTAET/REG/2000/15, 6 June 2000, Section 5.1(g) (crimes against humanity), Section 6.1(b)(xxii) and (e)(vi) (war crimes). 20 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, opened for signature 27 June 2014, Article 28C(1)(g) and (h) (crimes against humanity), Article 28D(b)(xxiii) and (e)(vi) (war crimes). 21 Law no. 05/L-053 by the Assembly of Republic of Kosovo on Specialist Chambers and Specialist Prosecutor’s Office, 3 August 2015, Article 14(1)(b)(xxii) and (d)(vi). 22 Accord Entre le Gouvernement de la République du Sénégal et l’Union Africaine sur la Création de Chambres Africaines Extraordinaires au Sein des Juridictions Sénégalaises, 22 August 2012, Article 6(a). 23 Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 2178 UNTS 137, 16 January 2002 (SCSL Statute), Article 2(g). 16 Preparatory

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crime is not included in the relevant provisions on war crimes either.24 Furthermore, enforced sterilization does not appear in the Statute of the Extraordinary Chambers in the Courts of Cambodia.

6.2.2 Elements of the Crime of Enforced Sterilization The Elements of Crimes resulting from the negotiations read as follows: 1. The perpetrator deprived one or more persons of biological reproductive capacity. (Footnote: The deprivation is not intended to include birth-control measures which have a non-permanent effect in practice.) 2. The conduct was neither justified by the medical or hospital treatment of the person or persons concerned nor carried out with their genuine consent. (Footnote: It is understood that “genuine consent” does not include consent obtained through deception.)25

Accordingly, the actus reus of the crime of enforced sterilization consists of the permanent deprivation of reproductive capacity in an “enforced” manner.

6.2.2.1

Deprivation of Reproductive Capacity

Enforced sterilization is a gender-neutral crime, meaning that it can be committed against both men and women.26 The element of “deprivation of reproductive capacity” requires that the victim had the capacity to reproduce, or the potential to develop this capacity.27 Accordingly, the provision also protects children who are not yet able to reproduce,28 but not, for example, women who have undergone menopause and are no longer able to reproduce.29 Pertaining to the conduct, the crime encompasses both “medical” procedures and other forms of violence that cause loss of reproductive capability (e.g. gang rape and mutilations of sexual organs),30 though in the latter case intent to deprive the victim of reproductive capabilities could be difficult to prove in practice.31 Furthermore, the reference in the Elements to “biological reproductive capacity” appears to exclude cases in which loss of reproductive 24 Ibid.,

Articles 3, 4. Elements of Crimes, Article 7(1)(g)-5, Article 8(2)(b)(xxii)-5; Article 8(2)(e)(vi)-5. 26 See Schwarz 2019, p 268; Vest and Sutter 2014, marginal no 544; Zimmermann and Geiß 2018, marginal no 155. 27 See Schwarz 2019, p 268; Zimmermann and Geiß 2018, marginal no 155. 28 See Zimmermann and Geiß 2018, marginal no 155. 29 See Schwarz 2019, p 268; Vest and Sutter 2014, marginal no 544. 30 See De Brouwer 2005, pp 146–147; Hall et al. 2016, marginal no 67; Schwarz 2019, pp 270–271; Vest and Sutter 2014, marginal nos 536–539. 31 See Schabas 2016, p 192. 25 ICC

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capacity results from trauma or other psychological barriers.32 The crime also covers, but does not necessarily require,33 the complete removal of reproductive organs (i.e. castration).34

6.2.2.2

Permanency

Most scholars asserted that the deprivation of reproductive capacity must be of a permanent nature.35 This is deduced from the footnote to the first element, which excludes birth-control measures with a non-permanent effect.36 This clause was the result of controversial negotiations:37 Some delegations feared that the crime of enforced sterilization would cover restrictive national population policies such as China’s one-child-policy.38 However, the clause now included in the footnote to the first element is quite extensive and its consistency with international law is questionable.39 Thus, it should be applied restrictively in practice.40 Some scholars do not require the element of permanency at all and thus generally include measures with only a temporary effect.41 This approach is not convincing, because it would relinquish the distinction between sterilization and contraceptive measures, which are less invasive. In any case, permanency of loss of reproductive capacity does not mean irreversibility; the element of permanency is also fulfilled if there is a possibility of restoring reproductive capacity through medical procedures.42 It excludes only such cases in which reproductive capacity will be restored naturally within a foreseeable period.43

32 See

Schwarz 2019, p 269; Vest and Sutter 2014, marginal no 532. De Brouwer 2005, pp 146–147; La Haye 2000, pp 195–196; Zimmermann and Geiß 2018, marginal no 155. 34 See Schwarz 2019, p 270. 35 See Cottier and Mzee 2016, marginal no 729; Schwarz 2019, p 269; Vest and Sutter 2014, marginal no 533; Werle and Jeßberger 2020, marginal no 1079; Zimmermann and Geiß 2018, marginal no 155. 36 See Cottier and Mzee 2016, marginal no 729; Schwarz 2019, p 269; Vest and Sutter 2014, marginal no 533. 37 See La Haye 2000, p 196. 38 See La Haye 2000, pp 195–196; Schwarz 2019, p 272. 39 See Ambos 2013, p 103; Hall et al. 2016, marginal no 67. 40 See Schwarz 2019, p 272. 41 See De Brouwer 2005, p 146; La Haye 2000, p 196. See also Hall et al. 2016, marginal no 67, pointing out even non-permanent measures could have devastating effects and violate human rights. 42 See Ambos 2018, § 7 marginal no 212; Schwarz 2019, pp 269–270. 43 See Schwarz 2019, p 269. 33 See

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“Enforced”

The sterilization must be “enforced”, which generally covers situations of force, threat of force, or coercion.44 Furthermore, some authors asserted that a sterilization is “enforced” when it is committed against a person’s will, i.e. without his or her “genuine consent”.45 This is supported by the second element in the Elements of Crimes, requiring that “[t]he conduct was [not] carried out with [the person’s] genuine consent”.46 As pointed out above,47 the relationship between the elements of force and non-consent is not entirely clear. Similar to the crimes against humanity and war crimes of rape and forced pregnancy, there is no room for “genuine consent” to sterilization conducted under forcible circumstances,48 which are commonly present in an environment of mass criminality. In this regard, the observations on the requirement “forcibly” of the crime of forced pregnancy apply here as well. According to La Haye, the reference to “genuine consent” was only added to the Elements of Crimes in order to clarify in a footnote that consent obtained by way of deception would not be genuine, which was considered especially relevant in the context of sterilizations, in contrast to the other crimes included in the provision.49 Furthermore, the second element in the Elements of Crimes states that the sterilization amounts to a crime only if it was not “justified by the medical or hospital treatment of the person”. The formulation seems to suggest that medically justified procedures would not fall under the scope of the crime even if they are carried out without or against the person’s genuine consent or otherwise under forcible circumstances. In this regard, the relationship between the elements of force and absence of medical justification is not entirely clear.50 Following a human rights-based approach and taking into account the protected value of reproductive autonomy, medical justification should not preclude criminal accountability when the procedure is conducted against a person’s express will.

6.2.3 Practice To date, the crime of enforced sterilization has not been charged before the ICC. In the light of the historical precedents of its prosecution, the absence of enforced sterilization charges in modern international criminal trials is rather peculiar. Seeing as it may apply both to targeted sterilization campaigns, as documented for example 44 See

ibid. Ambos 2011, p 294; Cottier and Mzee 2016, marginal no 730. 46 ICC Elements of Crimes, Article 7(1)(g)-5, no. 2; Article 8(2)(b)(xxii)-5, no. 2; Article 8(2)(e)(vi)-5, no. 2. 47 See Chap. 5, Sects. 5.5.3.2 and 5.5.3.3. 48 See also Schwarz 2019, p 273. 49 La Haye 2000, p 196. 50 See also Cottier and Mzee 2016, marginal no 730. 45 See

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in Peru under Fujimori,51 as well as to genital mutilations, its scope of application appears rather broad. It is noteworthy, however, that the act of penile amputation was charged by the Prosecutor in the case against Kenyatta and others under the umbrella of the crime against humanity of any other form of sexual violence under Article 7(1)(g) of the ICC Statute.52 It is unclear why the Prosecutor did not charge this conduct under the crime of enforced sterilization specifically, as the elements would likely have been fulfilled.53 In the absence of enforced sterilization charges, the aspect of the potentially permanent loss of reproductive capacity did not feature in the ensuing trial. This effectively rendered the reproductive component of the criminal conduct entirely invisible.

6.2.4 Summary In the light of the recognition of enforced sterilization as a criminal act dating back to the trials after World War II, its explicit criminalization in the ICC Statute is a welcome development. However, the crime has not been charged before the ICC thus far. Given its practical relevance and the documentations from several conflict situations, it is to be hoped that the crime of enforced sterilization will play a bigger role in future trials.

6.3 “Unnamed” Reproductive Crimes: Implicit Prosecution of Reproductive Violence The ICC Statute does not specifically criminalize other forms of reproductive violence beyond enforced sterilization and forced pregnancy. There also exist no further separate reproductive crimes in any other international courts’ statutes or under customary international law. In the absence of a distinct criminalization, this section outlines possible avenues for the prosecution of other forms of reproductive violence under the ambit of existing crimes against humanity and war crimes. This is followed by a discussion on the necessity of further distinct crimes relating to reproductive violence. As discussed above, the acts of forced abortion and forced contraception may be prosecuted as acts of genocide.54 Beyond genocidal contexts, several crimes against 51 See

Chap. 3, Sect. 3.2.1.6. Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, Decision on the Confirmation of Charges, 23 January 2012, ICC-01/09-02/11 (Kenyatta et al. 2012), para 254. The charge was not confirmed, see also this chapter, Sect. 6.3.1.1. 53 See Cottier and Mzee 2016, marginal no 737. 54 See Chap. 4, Sect. 4.4.2 and 4.4.3. 52 ICC,

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humanity and war crimes under the ICC Statute potentially encompass these acts and other forms of reproductive violence, depending on the circumstances.55 The act of forced abortion may be prosecuted under the umbrella of the crimes against humanity of torture56 or other inhumane acts.57 With regard to war crimes, forced abortion could be charged as torture or inhuman treatment,58 wilfully causing great suffering or serious injury to body or health,59 subjecting persons who are in the power of an adverse party to physical mutilation,60 outrages upon personal dignity,61 or violence to life and person, in particular cruel treatment and torture.62 The forced use of contraception may also fall under existing crimes, especially the crime against humanity of other inhumane acts.63 Furthermore, acts of reproductive violence such as forced abortion and forced contraception could potentially be charged as the crime against humanity or war crime of “any other form of sexual violence”64 or the crime against humanity of persecution on the grounds of gender.65 This will be discussed in the next sections.

6.3.1 The Categorization of Reproductive Violence as “Any Other Form of Sexual Violence”? In the light of the distinction between sexualized violence and reproductive violence as outlined above,66 it may be called into question whether forms of reproductive violence can be prosecuted under the ambit of “any other form of sexual violence” at the ICC.

55 See

generally Grey forthcoming, pp 24–32.

56 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS

3 (entered into force 1 July 2002) (ICC Statute), Article 7(1)(f). 57 Ibid., Article 7(1)(k). 58 Ibid., Article 8(2)(a)(ii). 59 Ibid., Article 8(2)(a)(iii). 60 Ibid., Article 8(2)(b)(x). 61 Ibid., Article 8(2)(b)(xxi) and Article 8(2)(c)(ii). 62 Ibid., Article 8(2)(c)(i). 63 Ibid., Article 7(1)(k). See De Vos 2016. 64 ICC Statute, above n 56, Article 7(1)(g) (“of comparable gravity”), Article 8(2)(b)(xxii) (“also constituting a grave breach of the Geneva Conventions”), Article 8(2)(e)(vi) (“also constituting a serious violation of article 3 common to the four Geneva Conventions”). 65 Ibid., Article 7(1)(h). 66 See Chap. 3, Sect. 3.3.1.2.

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Approaches to the Residual Clause in ICC Jurisprudence and in the Literature

A clear understanding of what constitutes a crime of sexual violence has not yet been established in international criminal justice.67 In this regard, the ICC Elements of Crimes do not provide any guidance beyond referring to “an act of a sexual nature”.68 According to Oosterveld, who was a member of the Canadian delegation at the Rome Conference, the drafters intended to capture acts such as forced nudity, sexual mutilation, and “other similarly degrading acts”.69 The ICC dealt with a charge of “any other form of sexual violence” in the proceedings against Kenyatta et al. In this case, the Office of the Prosecutor brought evidence on the act of forcible circumcision and penile amputation under the charge of sexual violence as a crime against humanity under Article 7(1)(g) of the ICC Statute.70 The charge of sexual violence was not confirmed, however, because the Pre-Trial Chamber held that such acts were not of a sexual nature, but motivated by ethnic prejudice and the desire to demonstrate cultural superiority.71 Instead, the Chamber characterized these acts as the crime against humanity of other inhumane acts.72 This decision was heavily criticized in the literature.73 The underlying conceptualization of sexual violence is remarkably restrictive and fails to take into account the intersectional nature inherent in the selective targeting of specific victims. Sexualized violence has often been used precisely as a tool of asserting cultural superiority in conflict scenarios with ethnic dimensions. Against this background, the Chamber’s assumption that sexualized violence and ethnically motivated violence are mutually exclusive is entirely unconvincing. In the literature, various avenues have been explored in order to determine what constitutes an act of sexual violence. For example, Schwarz put forward four criteria for this assessment, namely whether the act (1) targets a person’s sexual characteristics or (2) his or her sexuality, (3) violates the value of sexual autonomy or 67 See

generally Ambos 2013, pp 103–104; De Brouwer 2005, pp 147–152; Grey 2014, 2019, pp 291–295; Hall et al. 2016, marginal no 68; Schwarz 2019, pp 279–288. 68 ICC Elements of Crimes, Article 7(1)(g)-6, no. 1; Article 8(2)(b)(xxii)-6, no. 1; Article 8(2)(e)(vi)-6, no. 1. 69 Oosterveld 2005, p 124. On the categorization of forced nudity as an act of sexual violence, see also ICTR, Prosecutor v Jean-Paul Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, para 688. However, ICC Pre-Trial Chamber III, in its decision on the application for an arrest warrant against Bemba, held that there were no reasonable grounds to believe that evidence of forced nudity constituted another form of sexual violence of comparable gravity, though without giving reasons, see ICC, Prosecutor v Jean-Pierre Bemba Gombo, Arrest Warrant Decision, 10 June 2008, ICC-01/05-01/08, paras 39–40. 70 Kenyatta et al. 2012, above n 52, para 254. 71 Ibid., para 266. See also para 265: “not every act of violence which targets parts of the body commonly associated with sexuality should be considered an act of sexual violence”. 72 Ibid., para 270. The Prosecutor later attempted to re-characterize the charges at the trial stage, but withdrew the case before the judges decided on this motion. 73 See e.g. Grey 2014, pp 282–283; Grey 2019, pp 292–294; Hall et al. 2016, marginal no 68; Hayes 2016, pp 41–42; Schwarz 2019, pp 321–322.

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(4) is sexually motivated.74 This proposal followed the definition of sexual violence advanced by the UN Special Rapporteur on Contemporary Forms of Slavery in 1998, which defined sexual violence as “any violence, physical or psychological, carried out through sexual means or by targeting sexuality”.75 The report further stated that “sexual violence covers both physical and psychological attacks directed at a person’s sexual characteristics, such as forcing a person to strip naked in public, mutilating a person’s genitals, or slicing off a woman’s breasts”76 as well as “situations in which two victims are forced to perform sexual acts on one another or to harm one another in a sexual manner”.77 Based on a survey of the ad hoc tribunals’ jurisprudence, De Brouwer emphasized that sexual violence does not necessarily require physical contact, and suggested a broad interpretation of the crime.78 Conversely, Ambos favoured a restrictive definition that would require some form of physical conduct, pointing out that dignity violations are punishable under other provisions irrespective of their sexual connotation.79 Grey highlighted the importance of culturally sensitive and local perspectives to the assessment.80 In the same vein, the Women’s Initiatives for Gender Justice, which originated from the Women’s Caucus, adopted an inclusive and survivor-centric approach in its “Call It What It Is” initiative. Through consultations with civil society organizations, academics, legal practitioners, policy makers, and—first and foremost—survivors of sexualized violence, this project aimed to define what makes an act of violence sexual. The resulting The Hague Principles on Sexual Violence81 contribute immensely to a nuanced and comprehensive understanding of sexual violence and may serve as a reference point for future international trials. The Principles advance a broad understanding of what constitutes an act of a sexual nature, referring, among other factors, to the perpetrator’s motivation, the impact on the victim’s sexual autonomy, sexual orientation, gender identity, or reproductive capacity or autonomy, as well as the use of sexual innuendos or language.82

74 Schwarz

2019, pp 281–288. Similarly, see Hall et al. 2016, marginal no 68. Nations Commission on Human Rights 1998, para 21. This was also referred to by the ICC, Prosecutor v Dominic Ongwen, Judgment, 4 February 2021, para 2716, footnote 7163. 76 Ibid. 77 Ibid., para 22. 78 De Brouwer 2005, pp 147–151. See also Grey 2014, p 284, criticizing the “overreliance on penetration as the determinative factor”. 79 Ambos 2013, pp 103–104. Similarly, see Schwarz 2019, pp 338–342. 80 Grey 2019, p 321. See also Grey 2014. 81 The Hague Principles on Sexual Violence, December 2019 (Hague Principles), https://4gende rjustice.org/wp-content/uploads/2019/11/The-Hague-Principles-on-Sexual-Violence.pdf (accessed 24 October 2020). 82 Ibid., p 7. 75 United

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Systematic Interpretation: Forced Pregnancy and Enforced Sterilization as “Sexual Violence”

What appears to be missing from some of the approaches outlined in the previous section is a distinction between sexualized violence and the broader concept of gender-based violence, which also encompasses non-sexual manifestations. As outlined in the previous chapters, the concepts of sexual or sexualized violence, gender-based violence, and reproductive violence are not synonymous.83 The ICC Statute, however, does not draw this distinction. Indeed, the phrasing of “any other form of sexual violence” implies, by way of systematic interpretation, that all acts listed in the provision must be considered as examples of sexual violence. This also includes, besides rape, sexual slavery, and enforced prostitution, the crimes of forced pregnancy and enforced sterilization.84 Similarly, in the literature both enforced sterilization85 and forced pregnancy86 are generally categorized as sexual acts. Only a few authors have put forward the idea that these crimes are not forms of sexual violence.87 For example, Stahn pointed out that the ICC Statute is the first instrument to codify reproductive violence in addition to sexual violence, implying that reproductive and sexual violence are not congruent.88 Pertaining to forced pregnancy, Werle and Jeßberger questioned whether its classification of as a sexual crime was correct.89 With regard to enforced sterilization, Schabas further asserted that the “[p]lacement of sterilization within the paragraph dealing with sexual violence may not be entirely appropriate.”90 Considering the actus reus of enforced sterilization (forcible deprivation of reproductive capacity) and of forced pregnancy (unlawful confinement of a woman forcibly made pregnant), the categorization of these crimes as forms of sexual violence is imprecise. Although both acts may affect the victim’s sexual life as well, this aspect is merely a potential consequence and not a necessary element of the offenses. Pertaining to enforced sterilization, it was pointed out above that it can be committed through sexualized means, such as gang rape leading to a loss of reproductive capacity or through mutilation of sexual organs, but this is not a required element of the offense.91 In fact, enforced sterilization can be committed through medical procedures, which are not carried out in a sexualized manner and which—when conducted professionally—do not necessarily affect the victim’s sexual life. Regarding forced pregnancy, the actus reus of unlawful confinement does not entail a sexualized element at all. As discussed above, the forcible impregnation of the victim, which is 83 See

Chap. 1, Sects. 1.3.2 and 1.3.3 and Chap. 3, Sect. 3.3.1. also The Office of the Prosecutor of the International Criminal Court 2014, p 3. 85 See e.g. De Brouwer and Ruiz 2019, p 170. 86 See e.g. Short 2003, p 504. 87 See generally Grey 2017. See also De Vos 2019, pp 398–400. 88 Stahn 2019, p 64. 89 Werle and Jeßberger 2020, marginal no 1077. 90 Schabas 2016, p 192. 91 See this chapter, Sect. 6.2.2.1. 84 See

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typically (though not necessarily) carried out through a sexualized act, is a circumstantial element of the crime and not directly related to the criminalized conduct.92 Accordingly, both crimes are not (necessarily) sexualized in nature. As elaborated on above,93 they primarily protect the value of reproductive autonomy, not sexual autonomy. Nevertheless, the ICC Statute categorizes them as acts of sexual violence.

6.3.1.3

Evaluation on the Interpretation of the Residual Clause

The previous subsection demonstrated that a systematic interpretation of the ICC Statute allows for a broad understanding of the provision of “any other form of sexual violence”. However, an overly extensive interpretation of what constitutes an act of sexual violence is not only problematic with regard to the principle of legality;94 it may also prove impractical and thus counterproductive in practice.95 It is suggested here that an act should be considered as sexual when it violates the victim’s sexual autonomy.96 Sexual autonomy is understood as the freedom to decide whether, how and under what circumstances to engage in sexual activity.97 This will typically be the case when the act is committed through sexualized means, when it has an impact on the victim’s sexual organs or functions, or when the victim is targeted precisely because of his or her sexual organs or functions. As pointed out above, there is a close connection between sexualized and reproductive violence, and the values of sexual and reproductive autonomy.98 Reproductive autonomy is often exercised through sexuality, and sexualized and reproductive violence often overlap. In the case of forced pregnancy, the forcible impregnation— which is a prerequisite to the offense—is typically conducted through an act of sexualized violence, i.e. rape. Similarly, the crime of enforced sterilization is often committed through sexualized conduct, for example through mutilations of sexual organs. Furthermore, Schwarz pointed out that this crime also has a sexual dimension, by way of preventing the victim from engaging in sexual behaviour that will result

92 See

Chap. 5, Sects. 5.5.3 and 5.5.4. Chap. 5, Sect. 5.5.1.2. 94 See also Ambos 2013, p 103; Schwarz 2019, p 277; Werle and Jeßberger 2020, marginal no 1080. 95 See also Grey 2019, pp 318–321; Schwarz 2019, p 347. 96 See also Ambos 2011, p 288: “Das geschützte Rechtsgut erweist sich gerade bei den Sexualdelikten häufig als einziges rationales Kriterium, um den genauen Anwendungsbereich einer Strafvorschrift zu bestimmen.” (Especially with regard to sexual offenses, the protected legal good often proves to be the only rational criterion to define the exact scope of application of a criminal provision.) 97 On sexual autonomy in the context of the crime of rape, see Dowds 2020, pp 143–144, highlighting the positive and negative facets of sexual autonomy. 98 See Chap. 3, Sect. 3.3.1.2. 93 See

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in reproduction.99 In this sense, it might be argued that the distinction between sexualized and reproductive violence, and sexual and reproductive autonomy, is artificial and meaningless. As understood here, however, sexualized and reproductive violations are distinct harms, despite frequent overlaps. Loss of reproductive capacity does not automatically affect the victim’s sexuality. Similarly, violations of sexual autonomy do not automatically have an effect on the reproductive system. The distinction between sexualized and reproductive violence and the precise labelling of the underlying value of the offenses is important for the same reasons as given above with regard to the separate criminalization of certain acts.100 The conceptualization of reproductive violence as a distinct form of gender-based violence “surfaces”101 the reproductive dimension of the harm imposed on the victim and proclaims that such conduct amounts to a serious violation of his or her rights. In contrast, a sole focus on sexualized violations neglects this reproductive dimension and thus silences a fundamental aspect of the victim’s experience, which often has severe long-term consequences. Although the increasing attention that international law has paid to sexualized violence is a welcome development, it also entails the dangers of reinforcing the stereotypical notion of women as passive victims and of overemphasizing their sexuality.102 Similarly, the focus on sexual crimes may create a hierarchy of violations and thus silence other forms of (gender-based) violence experienced by both men and women in macro-criminal contexts, including reproductive violence.103 Against this background, the categorization of enforced sterilization and forced pregnancy as sexual crimes is indeed inappropriate. To remedy this, a separate category of “forced pregnancy, enforced sterilization or any other form of reproductive violence” should be added to the ICC Statute. Alternatively, the provision on any other form of sexual violence could be amended to refer to “any other form of sexual or reproductive violence”.

6.3.1.4

Results

Despite their miscategorization, the placement of the crimes of enforced sterilization and forced pregnancy in the provision on sexual crimes de lege lata informs the interpretation of what constitutes an act of sexual violence for the purposes of the ICC Statute. In this regard, “unnamed” forms of reproductive violence may be prosecuted as other forms of sexual violence.104 In fact, the Office of the Prosecutor

99 Schwarz

2019, pp 267–268. Chap. 5, Sect. 5.4.2. 101 Copelon 1994; Grey 2017. 102 See with regard to the “rape as a weapon of war”-narrative, Chap. 2, Sect. 2.2.4.2. 103 See also Rubio-Marín 2009, pp 80–81; Rubio-Marín 2012, p 85. 104 See also Grey forthcoming, pp 25–27. 100 See

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already adopted this approach in its 2012 interim report on the Colombian preliminary examination, in which it listed forced contraception and forced abortion among a list of possible sexual crimes.105 Concerning forced abortion, this interpretation has also been put forward by the ICTY Trial Chamber in the judgment against Kvo´cka and others,106 and it has found support in the literature.107 It is convincing particularly in the light of the similarity between forced abortion on the one hand and enforced sterilization and forced pregnancy on the other hand. This applies not only with regard to the protected value of reproductive autonomy, but also with regard to the unique harm imposed upon the victim. The acts of enforced sterilization and forced abortion both prevent the victim from reproducing, though at different stages of the reproductive process (i.e. before versus after the occurrence of a pregnancy). Similarly, the acts of forced pregnancy and forced abortion both concern an existing pregnancy, though with different focus points (i.e. the forced continuation versus the forced termination of a pregnancy). Similarly, there is some support for the prosecution of forced contraception as an act of sexual violence. It is included as an example for an act of a sexual nature in the 2019 Civil Society Declaration on Sexual Violence.108 Dieneke de Vos also argued that forced contraception could be prosecuted as sexual violence. However, she also pointed out the uncertainty surrounding the provision and the problematic interpretation offered by the ICC Pre-Trial Chamber II in the case against Kenyatta et al., and thus concluded that the crime against humanity of other inhumane acts would be the more likely charge in practice.109 In the case of forced contraception, the similarity to enforced sterilization is obvious: Both acts negatively target the victim’s reproductive capacity in preventing him or her from reproducing. The only difference is that enforced sterilization only encompasses permanent (though not necessarily irreversible) measures. However, some forms of contraception such as hormonal implants or intrauterine devices also have long-term effects. Against this background, it is warranted to regard forced contraception as an act of a sexualized nature. Indeed, the choice whether to use contraception and which form of it to use may also be seen as encompassed under sexual autonomy, namely the freedom to choose under which circumstances to engage in sexual relations. The more problematic aspect of the prosecution of forced contraception under the provision on sexual violence is the gravity threshold. This can only be assessed on a case-by-case basis. Alternatively to the prosecution as a sexual crime in and of itself, evidence of forced contraception can be taken into account in the context of the prosecution of rape, for example in establishing the forcible nature of the act or as an aggravating factor with regard to sentencing. 105 The

Office of the Prosecutor of the International Criminal Court 2012, para 143. - Radi´c and Zoran Prosecutor v Miroslav Kvoˇcka, Dragoljub Prca´c, Milojica Kos, Mlado Žigi´c, Judgment, 2 November 2001, IT-98-30/1-T, para 180, footnote 343. 107 See De Brouwer 2005, p 150; Koenig and Askin 2000, p 17; Hague Principles, above n 81, p 8. 108 Hague Principles, above n 81, pp 8, 16. 109 ICC Statute, above n 56, Article 7(1)(k); De Vos 2016. On the decision, see this chapter, Sect. 6.3.1.1. 106 ICTY,

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6.3.2 Persecution on the Grounds of Gender Reproductive violence may also be charged as the crime against humanity of persecution on the grounds of gender.110 As discussed above,111 the definition of gender in Article 7(3) of the ICC Statute is somewhat ambiguous with regard to the “context of society” and thus the inclusion of the socially constructed roles traditionally foreseen for men and women. However, it unquestionably comprises the biological differences between males and females, including the different sexual organs that are the basis of human reproductive capacity. Thus, the concept of gender under Article 7(3) of the ICC Statute encompasses biological reproductive capacity, both in the form of being able to become pregnant and bear children and in the form of being able to impregnate another person. When an identifiable group or collectivity in the sense of Article 7(1)(h) of the ICC Statute is targeted because of reproductive capacity, this potentially falls under the crime of persecution on gender grounds, given that the other elements are fulfilled. For example, targeting pregnant women by way of forced abortion or women with the ability to become pregnant by way of forced contraception and thus interfering with their freedom to choose whether to reproduce constitutes discrimination on gender grounds, which may amount to persecution.

6.3.3 Necessity of Separate Reproductive Crimes? Beyond the possibility to prosecute reproductive violence under existing crimes in the ICC Statute, the recognition of certain forms of such violence as distinct crimes may be called for in the light of the unique harm imposed upon the victim.

6.3.3.1

Forced Abortion

With regard to forced abortion, the inclusion of a distinct crime was apparently not discussed in the negotiations for the ICC Statute. Koenig and Askin explained that the Women’s Caucus was divided on the issue of such a distinct crime, because some delegates feared that it could be used in order to further an anti-abortion agenda.112 This is regrettable because a potential crime of forced abortion would likely have found support among many delegations, including those that had been opposed to forced pregnancy. Indeed, a crime of forced abortion would encompass a unique harm suffered by the victim, namely the loss of a pregnancy, which is not captured by prosecution under more general offenses. Furthermore, there is 110 ICC

Statute, above n 56, Article 7(1)(h). Chap. 2, Sect. 2.4.5.2. 112 Koenig and Askin 2000, p 14, footnote 50. 111 See

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precedent for the prosecution of the act of forced abortion, in parallel to forced sterilization, committed by the Nazis.113 Including both crimes in the ICC Statute would thus have been consistent. Forced abortion has also been explicitly recognized as a violation of human rights, for example in the Beijing Declaration and Platform for Action,114 in the Council of Europe’s Istanbul Convention,115 as well as by the CEDAW Committee,116 the Committee on Economic, Social and Cultural Rights,117 and the Human Rights Committee.118 Furthermore, forced abortion policies have been documented in several more recent conflicts such as in Colombia.119 Despite its widespread occurrence and condemnation, forced abortion has not been prosecuted by any modern international criminal court. In the Lubanga trial at the ICC, evidence relating to forced abortion of child soldiers, who had gotten pregnant as a result of rape, emerged during the trial.120 However, just like evidence on sexualized violence, this was not part of the charges brought by the prosecution, and the judges subsequently held that it exceeded the scope of the charges on which the judgment could be based.

6.3.3.2

Forced Contraception

While documentations also extend to the act of forced contraception, typically committed with the purpose of retaining women as fighters or as victims of further sexual abuse,121 there is no precedent for the prosecution of this act under international criminal law. Under international human rights law, the forced use of contraceptives was listed as an act of violence against women alongside forced sterilization in the Beijing Platform for Action,122 but this has not been taken up by other international human rights institutions. Against this background, a distinct crime currently does not appear necessary or justified.

113 See

Chap. 3, Sect. 3.3.2 and Chap. 4, Sect. 4.4.2.2.

114 Beijing Declaration and Platform for Action, 15 September 1995 (Beijing Declaration), Platform

for Action paras 11, 115. of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, opened for signature 11 May 2011, CETS no. 210 (entered into force 1 August 2014), Article 39(a). 116 United Nations Committee on the Elimination of Discrimination Against Women 1993, para 22; United Nations Committee on the Elimination of Discrimination Against Women 2013, para 34; United Nations Committee on the Elimination of Discrimination Against Women 2017, para 18. 117 United Nations Committee on Economic, Social and Cultural Rights 2016, para 59. 118 United Nations Human Rights Committee 2000, para 11. 119 See Chap. 3, Sect. 3.2.1.7. 120 ICC, Prosecutor v Thomas Lubanga Dyilo, Transcript, 18 March 2009, ICC-01/04-01/06-T-150Red-ENG CT WT, pp 35–36. See also Grey 2019, p 136; Grey forthcoming, p 2. 121 With regard to genocidal contexts, see also Chap. 4, Sect. 4.4.3. 122 Beijing Declaration, above n 114, Platform for Action para 115. See also Eriksson 2000, pp 252–259. 115 Council

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6.3.4 Summary Although reproductive violence has not received much attention in ICC practice thus far, the Statute opens up several possibilities for its prosecution, even beyond the separate crimes of enforced sterilization and forced pregnancy. As shown in this section, other forms of reproductive violence can be prosecuted under various provisions in the Statute. This applies, for example, to the act of forced abortion, which should also be conceptualized as a separate crime in the future. Furthermore, depending on the individual circumstances, the act of forced contraception may also be prosecuted under the ICC Statute. While the crime of sexual violence in Article 7(1)(g), Article 8(2)(b)(xxii), and Article 8(2)(e)(vi) of the ICC Statute must be understood broadly and applies to reproductive violence as well, the provision should be amended to explicitly include the crime of forced abortion alongside forced pregnancy and enforced sterilization. Furthermore, in order to surface the unique harm of reproductive violence, the provision should refer to “any other form of sexual or reproductive violence”.

6.4 Conclusion The ICC Statute has the potential to apply to a broad range of reproductive violence. This chapter first discussed the crime of enforced sterilization, which may be considered the least controversial reproductive crime, but which has nonetheless not been addressed by the ICC or any other modern international criminal court. The fact that genital mutilations have in the past not been charged as enforced sterilization illustrates that the reproductive facets of crimes under international law are still considered as mere consequences of criminal conduct, rather than conduct worthy of prosecution in and of itself. Given the permanent harm often suffered by the victims as well as the strategic and discriminatory nature of many sterilization campaigns, investigators, prosecutors, and judges should pay closer attention to conduct causing loss of reproductive capacity. In order to highlight this unique harm, such conduct should be charged explicitly as enforced sterilization. The second part of this chapter highlighted avenues to prosecute reproductive violence beyond the explicit crimes of enforced sterilization and forced pregnancy. It was shown that, among other possibilities, the crimes of any other form of sexual violence as well as persecution should be applied to manifestations of reproductive violence in appropriate cases. The most likely candidates for prosecution are the acts of forced abortion and forced contraception. In order to acknowledge the particular harm caused by the crime of forced abortion, and given its longstanding recognition as a human rights violation and a criminal act, an explicit crime of forced abortion should be added to the ICC Statute in the future. In addressing the provision of sexual violence in the ICC Statute, this chapter also advocated for a more nuanced and differentiated understanding of what makes an act of violence sexual. It was argued that,

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in contrast to the understanding currently put forward in the ICC Statute, sexual and reproductive violence are not congruent. In order to surface the reproductive dimension of international crimes, the provisions in the ICC Statute should be expanded to refer to any other form of reproductive violence of comparable gravity.

References Ambos K (2011) Sexuelle Gewalt in bewaffneten Konflikten und Völkerstrafrecht. Zeitschrift für Internationale Strafrechtsdogmatik 2011:287–299 Ambos K (2013) Treatise on International Criminal Law, vol 2: The Crimes and Sentencing. Oxford University Press, Oxford Ambos K (2018) Internationales Strafrecht: Strafanwendungsrecht, Völkerstrafrecht, Europäisches Strafrecht, Rechtshilfe, 5th edn. C.H. Beck, Munich Copelon R (1994) Surfacing Gender: Re-Engraving Crimes Against Women in Humanitarian Law. Hastings Women’s Law Journal 5:243–266 Cottier M, Mzee S (2016) Article 8. In: Triffterer O, Ambos K (eds) Rome Statute of the International Criminal Court: A Commentary, 3rd edn. C.H. Beck, Munich De Brouwer A-MLM (2005) Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR. Intersentia, Antwerp/Tilburg De Brouwer A-MLM, Ruiz L (2019) Male Victims and Female Perpetrators of Sexual Violence in Conflict. In: Mouthaan S, Jurasz O (eds) Gender and War: International and Transitional Justice Perspectives. Intersentia, Cambridge, pp 169–208 De Vos D (2016) Can the ICC Prosecute Forced Contraception? https://me.eui.eu/dieneke-de-vos/ blog/can-the-icc-prosecute-forced-contraception/. Accessed 24 October 2020 De Vos D (2019) Prosecuting Sexual and Gender-Based Violence at the International Criminal Court. In: Shepherd LJ (ed) Handbook on Gender and Violence. Edward Elgar, Cheltenham/Northampton, pp 395–413 Dowds E (2020) Feminist Engagement With International Criminal Law: Norm Transfer, Complementarity, Rape and Consent. Hart Publishing, Oxford Eriksson MK (2000) Reproductive Freedom: In the Context of International Human Rights and Humanitarian Law. Martinus Nijhoff, The Hague/London Glasius M (2006) The International Criminal Court: A Global Civil Society Achievement. Routledge, London Grey R (2014) Conflicting Interpretations of “Sexual Violence” in the International Criminal Court. Australian Feminist Studies 29:273–288 Grey R (2017) The ICC’s First “Forced Pregnancy” Case in Historical Perspective. Journal of International Criminal Justice 15:905–930 Grey R (2019) Prosecuting Sexual and Gender-Based Crimes at the International Criminal Court: Practice, Progress and Potential. Cambridge University Press, Cambridge Grey R (forthcoming) Reproductive Crimes in International Criminal Law. In: Rosenthal I, Oosterveld V, SáCouto S (eds) Gender and International Criminal Law. Oxford University Press, Oxford Hall CK, Powderly J, Hayes N (2016) Article 7. In: Triffterer O, Ambos K (eds) Rome Statute of the International Criminal Court: A Commentary, 3rd edn. C.H. Beck, Munich Hayes N (2016) Sisyphus Wept: Sexual Violence at the International Criminal Court. In: McDermott Y, Hayes N, Varaki M, Schabas WA (eds) The Ashgate Research Companion to International Criminal Law: Critical Perspectives. Taylor and Francis, London, pp 7–43 Koenig DM, Askin KD (2000) International Criminal Law and the International Criminal Court Statute: Crimes Against Women. In: Askin KD, Koenig DM (eds) Women and International Human Rights Law, vol 2. Transnational Publishers, New York, pp 3–29

290

6 Enforced Sterilization and Other Forms of Reproductive …

La Haye E (2000) Article 8(2)(b)(xxii)-Rape, Sexual Slavery, Enforced Prostitution, Forced Pregnancy, Enforced Sterilization, and Sexual Violence. In: Lee RS (ed) The International Criminal Court, vol 2: Elements of Crimes and Rules of Procedure and Evidence. Transnational Publishers, Ardsley, pp 184–199 Oosterveld V (2005) Gender-Sensitive Justice and the International Criminal Tribunal for Rwanda: Lessons Learned for the International Criminal Court. New England Journal of International and Comparative Law 12:119–133 Preparatory Commission for the International Criminal Court (1999a) Proposal Submitted by the United States of America: Draft Elements of Crimes, UN Doc. PCNICC/1999/DP.4/Add. 1 Preparatory Commission for the International Criminal Court (1999b) Proposal Submitted by Costa Rica, Hungary and Switzerland on Certain Provisions of Article 8 para. 2 (b) of the Rome Statute of the International Criminal Court: (viii), (x), (xiii), (xiv), (xv), (xvi), (xxi), (xxii), (xxvi), UN Doc. PCNICC/1999/WGEC/DP.8 Preparatory Commission for the International Criminal Court (1999c) Proposal by Belgium Concerning Article 8, Paragraph (2)(b)(xxii) of the Statute of the International Criminal Court, UN Doc. PCNICC/1999/WGEC/DP.14 Preparatory Commission for the International Criminal Court (1999d) Proposal Submitted by Colombia: Comments on the Proposal by the Delegations of Costa Rica, Hungary and Switzerland Concerning Article 8, Paragraph 2 (b) of the Rome Statute (PCNICC/1999/WGEC/DP.8), UN Doc. PCNICC/1999/WGEC/DP.16 Preparatory Commission for the International Criminal Court (1999e) Proceedings of the Preparatory Commission at its Second Session (26 July–13 August 1999), UN Doc. PCNICC/1999/L.4/Rev.1 Preparatory Commission for the International Criminal Court (1999f) Proposal Submitted by Canada and Germany on Article 7, UN Doc. PCNICC/1999/WGEC/DP.36 Preparatory Commission for the International Criminal Court (1999g) Proposal Submitted by Colombia, UN Doc. PCNICC/1999/WGEC/DP.43 Preparatory Commission for the International Criminal Court (1999h) Proposal Submitted by China, UN Doc. PCNICC/1999/WGEC/DP.45 Preparatory Commission for the International Criminal Court (2000a) Comments by Colombia on the Elements of Crimes in Article 7 in Document PCNICC/1999/L.5/Rev.1/Add.2, UN Doc. PCNICC/2000/WGEC/DP.2 Preparatory Commission for the International Criminal Court (2000b) Comments by Colombia Regarding the Elements of Crimes of Article 8 (2) (b), 8 (2) (c) and 8 (2) (e) in Document PCNICC/1999/L.5/Rev.1/Add.2, UN Doc. PCNICC/2000/WGEC/DP.4 Preparatory Committee on the Establishment of an International Court (1997a) Proposal Submitted by the Holy See, UN Doc. A/AC.249/1997/WG.1/DP.12 Preparatory Committee on the Establishment of an International Court (1997b) War Crimes, UN Doc. A/AC.249/1997/WG.1/CRP.9 Preparatory Committee on the Establishment of an International Court (1998) Report, UN Doc. A/CONF.183/2 Rubio-Marín R (2009) The Gender of Reparations in Transitional Societies. In: Rubio-Marín R (ed) The Gender of Reparations: Unsettling Sexual Hierarchies While Redressing Human Rights Violations. Cambridge University Press, Cambridge, pp 63–120 Rubio-Marín R (2012) Reparations for Conflict-Related Sexual and Reproductive Violence: A Decalogue. William & Mary Journal of Women and the Law 19:69–104 Schabas W (2016) The International Criminal Court: A Commentary on the Rome Statute, 2nd edn. Oxford University Press, Oxford Schwarz A (2019) Das völkerrechtliche Sexualstrafrecht: Sexualisierte und geschlechtsbezogene Gewalt vor dem Internationalen Strafgerichtshof. Duncker & Humblot, Berlin Short JMH (2003) Sexual Violence as Genocide: The Developing Law of the International Criminal Tribunals and the International Criminal Court. Michigan Journal of Race & Law 8:503–527

References

291

Stahn C (2019) A Critical Introduction to International Criminal Law. Cambridge University Press, Cambridge The Office of the Prosecutor of the International Criminal Court (2012) Situation in Colombia: Interim Report. https://www.icc-cpi.int/NR/rdonlyres/3D3055BD-16E2-4C83-BA85-35B CFD2A7922/285102/OTPCOLOMBIAPublicInterimReportNovember2012.pdf. Accessed 24 October 2020 The Office of the Prosecutor of the International Criminal Court (2014) Policy Paper on Sexual and Gender-Based Crimes. https://www.icc-cpi.int/iccdocs/otp/OTP-Policy-Paper-on-Sexualand-Gender-Based-Crimes--June-2014.pdf. Accessed 24 October 2020 United Nations Commission on Human Rights (1998) Final Report Submitted by Ms. Gay J. McDougall, Special Rapporteur on Contemporary Forms of Slavery: Systematic Rape, Sexual Slavery and Slavery-Like Practices During Armed Conflict, UN Doc. E/CN.4/Sub.2/1998/13 United Nations Committee on Economic, Social and Cultural Rights (2016) General Comment no. 22 (2016) on the Right to Sexual and Reproductive Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), UN Doc. E/C.12/GC/22 United Nations Committee on the Elimination of Discrimination Against Women (1993) General Recommendation no. 19: Violence Against Women, General Assembly Official Records, FortySeventh Session, Supplement no. 38 (A/47/38) United Nations Committee on the Elimination of Discrimination Against Women (2013) General Recommendation no. 30 on Women in Conflict Prevention, Conflict and Post-Conflict Situations, UN Doc. CEDAW/C/GC/30 United Nations Committee on the Elimination of Discrimination Against Women (2017) General Recommendation no. 35 on Gender-Based Violence Against Women, Updating General Recommendation no. 19, UN Doc. CEDAW/C/GC/35 United Nations Human Rights Committee (2000) General Comment no. 28: Article 3 (The Equality of Rights Between Men and Women), UN Doc. CCPR/C/21/Rev.1/Add.10 Vest H, Sutter U (2014) Art. 264a lit. g. In: Vest H, Ziegler AR, Lindenmann J, Wehrenberg S (eds) Die völkerstrafrechtlichen Bestimmungen des StGB: Kommentar zu Art. 101, 259, 260bis und 264–264n. Dike/Nomos, Zürich/Baden-Baden Werle G, Jeßberger F (2020) Völkerstrafrecht, 5th edn. Mohr Siebeck, Tübingen Women’s Caucus for Gender Justice (1997) Recommendations and Commentary for December 1997 PrepCom on the Establishment of an International Criminal Court, United Nations Headquarters December 1–12, 1997 (on file with author) Zimmermann A, Geiß R (2018) § 8 Völkerstrafgesetzbuch. In: Joecks W, Miebach K (eds) Münchener Kommentar zum Strafgesetzbuch: Band 8: Nebenstrafrecht III, Völkerstrafgesetzbuch, 3rd edn. C.H. Beck, Munich

Chapter 7

Conclusion

The treatment of gender-based violence under international criminal law has advanced immensely in the past two decades. As detailed in Chap. 2, the international legal framework treated sexualized violence as an unfortunate yet natural—and thus unavoidable—by-product of war throughout much of its history. It conceptualized sexualized violence as an attack upon the victim’s honour, not as an act of aggression. These narratives concealed not only the widespread occurrence of sexualized violence, but also its strategic and systematic nature as well as the devastating consequences for the victims and their communities. Although challenges persist, particularly with regard to legal practice, sexualized violence has since moved to the center of attention. The international community has visibly increased its efforts to respond to the phenomenon. Many recent international trials, most notably at the ad hoc tribunals for Rwanda and the former Yugoslavia and at the ICC, addressed sexualized crimes, often—though certainly not always—in a comprehensive and gender-sensitive manner. The transformation of the treatment of conflict-related sexualized violence took place at a point of rapid development of international law. The atrocities documented during the wars in the former Yugoslavia and during the genocide in Rwanda triggered not only a renaissance of international criminal law in general, but also this shift in the conceptualization of conflict-related sexualized violence. The ICC Statute, adopted in 1998, reflects these developments and largely constitutes a progressive instrument for the treatment of such acts. Nevertheless, the focus on conflict-related sexualized violence has sidelined other forms of gender-based violence. Most notably, reproductive violence has been treated as a by-product of sexualized violence in international criminal law. This book advocates for a conceptualization of reproductive violence as a distinct form of genderbased violence. Despite obvious similarities and frequent overlaps, sexualized and reproductive violence occur in distinct manifestations, through distinct means, and with distinct consequences. The harm victims experience as a result of reproductive violence is unique and goes beyond that of sexualized violence. As discussed in Chap. 3, reproductive violence has been a feature of conflict scenarios throughout history. Through either forcibly preventing or forcibly © t.m.c. asser press and the author 2021 T. Altunjan, Reproductive Violence and International Criminal Law, International Criminal Justice Series 29, https://doi.org/10.1007/978-94-6265-451-8_7

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promoting reproduction, perpetrators are able to exercise effective control over individuals as well as collectivities. Nevertheless, international criminal trials dealing with reproductive violence have been the exception. Although there is some precedent for the prosecution of certain forms of reproductive violence in the post-World War II trials, these rather progressive developments soon came to a halt. Until the adoption of the ICC Statute in 1998, international criminal law remained silent on reproductive violence, despite its frequent occurrence and the documentations relating thereto. If addressed at all, reproductive violence only received attention in contexts related to attacks upon certain groups. In this regard, international human rights law played a very important role, beginning in the early 1990s, in developing a more comprehensive legal framework. In numerous binding as well as non-binding instruments, it addressed certain manifestations of reproductive violence and gradually developed a regime for protecting several important facets of reproductive autonomy. While reproductive health and rights remain a controversial field of human rights law and there currently appears to be a danger of “rollback”, the comparatively progressive legal framework of international human rights law informs and influences the treatment of reproductive violence under international criminal law. Against this legal and practical background, Chaps. 4, 5 and 6 discussed and analysed the criminalization of certain forms of reproductive violence under the ambit of the crime of genocide as well as crimes against humanity and war crimes in the current legal framework. Chapter 4 demonstrated that some forms of reproductive violence potentially constitute genocidal acts under Article II of the 1948 Genocide Convention. This Convention notably included the first explicit criminalization of an act of reproductive violence under international law, namely in the form of imposing measures intended to prevent births within the group (Article II(d) of the Genocide Convention). This provision primarily applies to forms of negative reproductive targeting, most importantly forced sterilization and forced abortion, which were its historical prototypes. However, if adequately conceptualized, the provision also extends to forms of positive reproductive targeting, i.e. forced impregnation and forced pregnancy. While the prosecution of violence relating to the forcible promotion of reproduction as acts of genocide may seem counterintuitive, it was shown that such conduct might in fact constitute an instrument of destruction. In this regard, it was asserted that the legal analysis should be conducted with a view to the victim’s reproductive autonomy. In forcing a person to become or remain pregnant, the perpetrator potentially deprives her of her future reproductive capacity or of the possibility to reproduce under conditions that conform to her group’s conception of membership. Depending on the individual circumstances, forms of reproductive violence can also be prosecuted under Article II(b) and, though only in exceptional cases, Article II(c) of the Genocide Convention. Chapters 5 and 6 of this book focused on reproductive crimes against humanity and war crimes under the ICC Statute. Chapter 5 discussed the crime of forced pregnancy, which was added to the ICC Statute against heavy opposition. In delineating the process of the negotiations pertaining to this crime, traditional narratives concerning the treatment of reproductive violence became visible. Particularly, some delegations wished to restrict the crime to ethnicity-related contexts (“ethnic cleansing”). The

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resistance to these proposals as well as the adoption of the crime represents immense progress pertaining to the treatment of reproductive violence under international law. In the light of the unique harm imposed upon victims of forced pregnancy, the distinct criminalization is welcome and necessary. It proclaims that such conduct amounts to a serious violation of the victims’ rights, which deserves to be addressed by the international community as a whole. The crime as included in the ICC Statute protects the value of reproductive autonomy, i.e. the freedom to make one’s own choices relating to the reproductive system and process. This understanding, shared by the recent ICC judgment against Ongwen, informs the interpretation of the crime’s elements. Resulting from the difficult negotiations, the definition included in Article 7(2)(f) of the ICC Statute is complex and restrictive. Notably, it does not extend to the act of forced impregnation. Chapter 5 offered an interpretation of the elements of the crime, which takes into account its protected value as well as internationally recognized human rights. It further proposed future amendments to the provision, particularly the deletion of the special intent requirement and the deferential clause pertaining to national laws. Besides forced pregnancy, the ICC Statute also explicitly criminalizes enforced sterilization, as discussed in Chap. 6. Against the background of historical precedents, the adoption of this crime was relatively uncontroversial. It is regrettable that it has not been addressed in ICC practice thus far, despite relevant evidence in cases before the Court. As portrayed in Chap. 6, other forms of reproductive violence such as forced abortion and forced contraception may also be prosecuted under the ambit of existing crimes in the ICC Statute. Besides the catch-all crime against humanity of other inhumane acts, the crime against humanity of persecution on the grounds of gender and the crime against humanity and war crime of any other form of sexual violence are particularly relevant. In the latter context, the problematic overgeneralization and lack of distinction between the concepts of sexualized violence, reproductive violence, and gender-based violence become visible. A precise understanding of what constitutes an act of sexual violence has not yet evolved under international criminal law. Chapter 6 proposed a primarily value-based approach to this categorization, i.e. the qualification of acts as violations of sexual or reproductive autonomy. Currently, the ICC Statute only refers to sexual violence (in a broad sense) and does not distinguish it from reproductive violence. Chapter 6 suggested that the conceptualization of these forms of violence as distinct—though often overlapping— manifestations of gender-based violence is imperative for the future development of international criminal law in this regard. In summary, this book illustrated both the potentials and the weaknesses of the ICC Statute in its capacity to respond to conflict-related reproductive violence in an adequate and effective manner. Beyond the explicit criminalization of “imposing measures intended to prevent births” as an act of genocide and the crimes against humanity and war crimes of forced pregnancy and enforced sterilization, several provisions potentially encompass various forms of reproductive violence. These

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potentials must now be translated into practice, guided by an understanding of reproductive autonomy as the protected value and informed by the protection of reproductive rights under international human rights law. This will be an important step in order to break international law’s silence on reproductive violence and surface the reproductive dimension of gender-based violations experienced by its victims.

Index

B Beijing Declaration and Platform for Action, 65, 120–121, 127, 195, 202, 217, 287 Birth prevention, 165–169, 176–177, 180– 182

C Causing serious bodily or mental harm, 47, 161–162, 177, 180 Children born of rape, 92, 94–96, 144, 152– 155, 167–169, 172, 217, 223–224 Colombia, 87–89, 285, 287 “Comfort women”, 83–84 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, 41 Control Council Law No. 10, 45 Convention on the Elimination of All Forms of Discrimination against Women, 49, 64, 122, 125, 127, 196, 217, 232, 247, 248

D Definition of reproductive violence, 98 Deliberate infliction of conditions of life, 47, 162–164 Distinction between reproductive and sexualized violence, 99

E Effects of reproductive violence, 95, 96, 215–216 Eichmann, 106, 179, 181 Enforced procreation, 10, 111, 191, 257

Eugenics, 79 Explicit criminalization, 213–215, 286–287 Extraordinary Chambers in the Courts of Cambodia (ECCC) forced marriage, 84–85, 109–111 forced pregnancy, 191, 256–257, 259 sexualized crimes, 63

F Feminist approaches, 15–16 Forced abortion crime of forced abortion, 278–279, 285– 288 definition, 11 forced abortion as genocide, 180–181 forced abortion in Colombia, 87–89 forced abortion in Nazi Germany, 81, 102, 104–106, 180–181 Forced castration, 11 Forced childbearing, 10 Forced continuation of pregnancy, 10, 191, 232, 248 Forced contraception crime of forced contraception, 278–279, 285–288 definition, 11, 116 forced contraception as genocide, 181– 182 forced contraception in Colombia, 87–89 Forced impregnation definition, 117, 157–158, 189–192 forced impregnation in Burundi, 89–90 forced impregnation in Nazi Germany, 82–83, 101 ICC negotiations, 197–198, 208–209 implicit prosecution, 211

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297

298 separate crime, 217–219 Forced marriage Cambodia, 84–85 forced marriage and forced pregnancy, 193–194, 256–257 Sierra Leone, 90 Uganda, 90–91 Forced maternity, 10, 155, 190–192, 209, 219 Forced motherhood, 10, 190 Forced pregnancy actus reus, 225–236 definition, 158 forced pregnancy as genocide, 150–152 forced pregnancy in the former Yugoslavia, 85, 140, 144 ICC negotiations, 196–209 mens rea, 237–244 national laws relating to pregnancy, 244– 250 protected value, 220–224 Forced reproduction, 10 Forced sterilization definition, 11, 117 elements of enforced sterilization, 275– 278 forced sterilization as genocide, 177–179 forced sterilization in China, 87 forced sterilization in Nazi Germany, 81–82, 100–106, 177–179 forced sterilization in Peru, 85–87 forced sterilization in the United States, 86 negotiations on enforced sterilization, 273–274 Forcible transfer of children, 170–173 G Gender, 5–6, 250 Gender-based violence continuum, 31–32 definition, 7, 9 gender-based persecution, 59–61, 196, 286 Genocidal rape, 114, 118–119, 148–149 Genocide Convention, 46–47, 107, 156–157 Group membership, 158–160 I Intent to destroy, 173–176 International Criminal Court (ICC) Bemba Gombo, 58, 228

Index gender definition, 56–57 Katanga, 58 Kenyatta, 278, 280, 285 Lubanga, 57–58, 287 Mbarushimana, 58 Ntaganda, 59 Ongwen, 1–2, 59–60, 90–91, 112, 188, 193, 220, 224, 238, 242, 252–253 procedural rules, 55 sexualized crimes, 57–58 International Criminal Tribunal for Rwanda (ICTR) Akayesu, 47, 53, 107, 108, 150, 152, 154, 159, 163, 165, 167, 227 reproductive violence, 106, 107 sexualized crimes, 54, 55 International Criminal Tribunal for the Former Yugoslavia (ICTY) ˇ Celebi´ ci, 52 Furundžija, 52, 227–228 Jelisi´c, 160 Karadži´c and Mladi´c, 109, 145 Kunarac, 52, 109, 227–228 reproductive violence, 108–109 sexualized crimes, 51–52 International humanitarian law Geneva Conventions, 37–39 Hague Conventions, 37 honour, 39–40 Lieber Code, 36 prohibition of rape, 35–36 International human rights law, 12–14, 63– 67, 119–128, 194–196, 220–221, 246–250 International Law Commission crimes against humanity convention, 56– 57, 258 draft codes, 47–50, 197 International Military Tribunal, see Nuremberg trial International Military Tribunal for the Far East, see Tokyo trial Istanbul Convention, 64, 127, 287

K Kosovo Specialist Chambers, 62, 256, 274

M Maputo Protocol, 64, 122, 246, 248 Medical experiments, 101, 102, 105, 230 Medical Trial, 81, 102–103, 178

Index N Nazi pro- and anti-natalist policies, 80 Negative targeting, 95 Nuremberg principles, 46 Nuremberg trial, 41–42, 82, 100–102, 178, 180

P Patrilineality, 113, 150, 153, 171–172 Policy Paper on Sexual and Gender-Based Crimes, 7, 27, 57, 60 Positive targeting, 95 Preparatory Commission, 205–207, 273 Preparatory Committee, 197–200, 273 Protected value, 220–224, 285

R Rape, 226–230 Reproductive autonomy, 98–99, 111, 114– 116, 149, 158, 169, 220–224, 252– 253, 283–285 Reproductive rights, 120–126, 208 Right to life, 123, 125, 247, 253 Rome Conference, 200–204, 273–274 RuSHA case, 104–105, 179, 181

S Sexual and reproductive health, 124–125, 217, 236, 247–249 Sexual autonomy, 228–229, 280–285 Sexualized violence by-product of war, 23, 34 causes and motives, 27–31 crime of sexual violence, 279–285 definition, 7–9 demonstration of power, 31 effects, 26–27 militarized masculinities, 29 perpetrators, 25

299 sexualized violence as genocide, 148– 150 terrorism, 32 victims, 24–26 Slavery, 79 Sources of international criminal law, 14–15 Special Court for Sierra Leone forced marriage, 61–62, 90, 109, 111, 193 forced pregnancy, 256 sexualized crimes, 61–62 Special Panels for Serious Crimes, 62, 256, 274

T Tokyo trial, 43

U Unique harm, 214–216, 286–288 United Nations Commission on Human Rights, 66, 127, 195, 217 United Nations Human Rights Council, 66

V Vienna Declaration and Programme, 65, 127, 194–195, 217

W War Crimes Commission, 44–45 Weapon of war narrative, 32–34 Women’s Caucus for Gender Justice, 199, 202, 209–210, 273, 281, 286 Women, Peace and Security Agenda, 33

Y Yazidis, 91–92, 153, 154, 182