The first is the emphasis on reproductive choice in the prosecutions case. 115 Annex A: Public Redacted Version of the Prosecutors Application under Article 58, Bashir (ICC-02/05-157-AnxA), Pre-Trial Chamber I, 14 July 2008, 121. 74 of the Statute, Lubanga (ICC-01/04-01/06-2842), Trial Chamber I, 14 March 2014, 630. Ntagandas case expanded the category of victims of sexual slavery to include child soldiers. The Rome Statute of the International Criminal Court (ICC) has established in article 7(1)(g) that "rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity" constitutes a crime against humanity. humanitarian law mentioned in the 1949 Geneva Conventions and their 1977 Additional Protocols, whether committed during international or non-international armed conflicts. Rape and Forced Pregnancy under the ICC Statute: Human Dignity 142 Intentionally causing forced abortion or forced miscarriage. PDF Rome Statute International Criminal 104 Cottier and Mzee, supra note 91, at 499. S/1994/674, 27 May 1995, 248; R. Fisk, Bosnia War Crimes: The Rapes went on Day and Night, The Independent, 8 February 1993, available online at http://www.independent.co.uk/news/world/europe/bosnia-war-crimes-the-rapes-went-on-day-and-night-robert-fisk-in-mostar-gathers-detailed-evidence-of-1471656.html (visited 17 April 2017). Vessels of Reproduction: Forced Pregnancy and the ICC - Texas A&M It would be difficult (if not impossible) to establish that the perpetrator of the rape intended these subsequent harms, in the sense required by the ICC.160 As a result, that perpetrator could not be held criminally responsible for these harms, even if a layperson may regard such harms as the foreseeable result of the rape. 93 Boon, supra note 5, at 658; B. Bedont, Gender-specific provisions in the Statute of the International Criminal Court, in F. Lattanzi and W. Schabas (eds), Essays on the Rome Statute: Vol. II, at 148, 32; and at 166, 72. It seems that little has changed since 1994, when feminist scholar Rhonda Copelon observed, following reports of Serbian forces raping Bosnian Muslim women so that they would bear Serbian babies, that the issue of forced pregnancy has drawn condemnation only when it reflects an intent to harm the victimized race. Yet as Copelon argued: [T]he taunt that Muslim will bear Serbian babies is not simply an ethnic harm When examined through a feminist lens, forced pregnancy appears as an assault on the reproductive self-determination of women; it expresses the desire to mark the rape and the rapist upon the woman's body and upon the woman's life.16, As may be apparent by now, the article concentrates on reproductive violence against women and girls. Mongol ICC's First 'Forced Pregnancy' Case in Historical Perspective Ongwen is alleged to have forcibly impregnated these women through rape, and then confined them by preventing them from leaving the LRA with a view to carrying out grave violations of international law: namely, to continue using them as wives, and to rape, torture and sexually enslave them.128 There are several aspects of this charge that deserve attention here. Nonetheless, there are ways to recognize reproductive violence other than by prosecuting it as a distinct crime. 111 Judgment pursuant to Art. These groundbreaking provisions have provided a new language to describe and prosecute these heinous crimes.. 123 Ibid. While the ICC has only just begun hearing cases, the court has already gone far beyond any other international tribunal in recognizing crimes committed against women. 60 Dolgopal and Paranjape, supra note 54, at 118. Traditional Chinese Forced pregnancy is defined by the International Criminal Court (ICC) as the "unlawful confinement of a woman who has been forcibly impregnated, with the intent of affecting the ethnic. My Account | IV (US Government Printing Office, 1949). For many years, information on the treatment of the 100,000 to 200,000 women in these facilities was hard to come by. The document containing the charges alleged that many of the women victims of rapes and gang-rapes contracted HIV, and became pregnant as a result of these rapes.122 These acts of forcible impregnation, as distinct from the rapes that preceded them, were not captured in the charges.123 However, in the sentencing decision, the Trial Chamber regarded the unwanted pregnancies as an aggravating factor of rape.124 As the Courts first case to include a conviction for rape, this sentencing decision set an important precedent for future cases. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form . Can the ICC prosecute forced contraception? Dieneke De Vos Under the Rome Statute, the crime of forced pregnancy . For example, although soldiers who used the comfort stations were supposed to use condoms, most did not. Ido 164 Womens Tribunal Written Judgment, supra note 54, 406412. Symposium in Pursuit of Intersectional Justice at the International The International Criminal Court (ICC) is the first tribunal to criminalize forced pregnancy.1 The Court's statute defines forced pregnancy as "the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other violations of international law."2 Although . It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as In 1998, the Rome Statute of the International Criminal Court (ICC Statute) became the first international instrument to expressly list forced pregnancy as a crime against humanity and a war crime. Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (Oxford University press, 2011), at 428. Qeqchi 2 Arts 7(1)(g), 8(2)(b)(xxii) and 8(2)(e)(vi) ICCSt. It is clear that perceptions of the types of conduct that can and should be prosecuted under international law have changed since the first international war crimes trials in the 1940s, where sexual violence crimes were largely overlooked,3 and the initial practice of the ICTY, ICTR and ICC, where these crimes were not always investigated and charged as a priority.4 Yet despite this increased attention to sexual violence, many other types of gender-based violence remain largely invisible in the study and the practice of international criminal law. Hungarian We urge you to recognize and support the condemnation of this crime by the international community and to ensure accountability for this egregious crime against women and children. However, the Rome Statute's negotiating history shows that this idea still enjoyed broad support at the time. For example, in 2008, the former ICC Prosecutor applied for an arrest warrant against Sudanese President Omar Al-Bashir in relation to alleged war crimes, crimes against humanity and genocide in Darfur. All rights reserved. Rather, it focused on the agencys role in encouraging and compelling abortions (emphasis added), suggesting that the central concern was the use of abortion in order to eliminate particular racial groups, rather than the interference with womens reproductive autonomy as such. 137 Transcript, Ongwen supra note 129, at 26, lines 2021. The Statute of Rome defines SGBV as those crimes committed against persons - whether male or female - because of their sex or socially constructed gender roles. Forced pregnancy is considered a crime against humanity by the International Criminal Court, but not when it comes to "national laws relating to pregnancy.". 121 Decision on the confirmation of charges, Mbarushimana (ICC-01/04-01/10-465-Red), Pre-Trial Chamber I, 16 December 2011. One could say that reproductive violence was viewed only through the lens of genocide a crime which was not recognized in the IMT Charter or in Control Council Law 10, but which had been defined by Polish jurist Raphael Lemkin before these instruments were adopted,48 and was referred to in the IMT indictment,49 as well as the indictment in the RuSHA case.50. In the past two decades, international criminal courts have become increasingly attuned to womens experiences of war. Published by Oxford University Press. Southern Sotho Conclusion Placing the ICC's first 'forced pregnancy' case on a historical timeline has both positive and negative implications. 136 Art. According to the ICC, the Rome Statute is the first international treaty to establish conflict-related SGBV as crimes against humanity, war crimes and, in some instances, genocide. 92 See Boon, supra note 5, at 656; de Brouwer, supra note 1, at 144; B. Bedont and K. Hall-Martinez, Ending Impunity for Gender Crimes Under the International Criminal Court, 6 Brown Journal of World Affairs (1999) 65, at 7374; C. Steains, Gender Issues, in R.S. Consistent with these reports, there are numerous references to ethnically motivated forced pregnancies in the jurisprudence of the ICTY. See Steains, supra note 92, at 366 (original emphasis). 2 of the Genocide Convention, where the act is of a sexual nature, and affects the victims reproductive capacity, and is committed with an intent to destroy, in whole or in part, a national, ethnic, racial, religious or gender group. For example, in the Gagovi case, the initial indictment referred to several rapes in which victim was told that she would give birth to Serb babies,69 and in the Karadi and Mladi case, the Trial Chamber recognized evidence that [s]ome 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 to undergo an abortion.70 Yet, while some aspects of this conduct (including the rape and confinement) were captured by other charges, the ICTY prosecutors did not bring specific charges for forced pregnancy, such as by applying the residual crime against humanity of other inhumane acts. Prosecutors and judges could be more emphatic when describing this conduct, to ensure that significance of the pregnancy is clear in the trial narrative, even if the legal framework does not regard this as a relevant factor. Georgian Going into the Rome Conference, many states were in favour of the proposal to recognize the crime of forced pregnancy as a war crime and crime against humanity within the jurisdiction of the ICC. Vessels of Reproduction: Forced Pregnancy and the ICC - CORE 84 Judgment and Sentence, Muhimana (ICTR- 95-1B), Trial Chamber, 28 April 2005, 393, 570. The Court's Statute defines forced pregnancy as "the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other violations of international law." The Rome Statute of the International Criminal Court is the first international treaty to explicitly define the crime of forced pregnancy, but its enactment was controversial. This definition shall not in any way be interpreted as . Forced pregnancy also took place during the period of African-American slavery. Armenian 134 Ongwen confirmation of charges decision, supra note 127, 100. The third notable point relates to the knowledge element of the crime. 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.. Serious bodily or mental harm to members of the group will be punished with 3 - Forced pregnancy of female members of the group will . Read the original article. Sinhalese Hindi Reproductive violence, as distinct from the related issue of sexual violence, is yet to be truly surfaced in international criminal law. Khmer 1 The Court's Statute defines forced pregnancy as "the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other violations of international law." 2 It also explores the bargaining process and divisive debates that surrounded the proposals to include and subsequently define rape and forced pregnancy. 130 GC III; Art. Xinca Genocide and Ukraine: Do Words Mean What We Choose them to Mean? 439 As a result, many women were subjected to forced impregnation, in addition being subjected to rape.56 Once pregnant, the women generally had no choice about whether to continue with the pregnancy: some were denied access to abortion; others had abortion forced on them.57 One witness testified that at the age of fourteen, the comfort station manager forced her to have an abortion, but because the drugs supplied for that purpose did not work, he pressed her abdomen until she miscarried.58 Another woman recalled having tablets forced down her throat by the comfort station manager, in order to terminate her pregnancy against her will.59 In other cases, the perpetrators avoided the difficulties of childbirth by killing expectant mothers, including by throwing them in a trench and killing them with hand grenades,60 and by cutting open the womans belly with a sword.61. Postdoctoral Fellow, Melbourne Law School (Australia). 4 Copelon, supra note 3, 228230; M. Jarvis and K. Vigneswaran, Challenges to Successful Outcomes in Sexual Violence Cases, in Brammertz and Jarvis (eds), supra note 1, 33, at 47, 5657; P. Kuo, Prosecuting Crimes of Sexual Violence in an International Tribunal, 34 Case Western Reserve Journal of International Law (2002) 305, at 310311; B. Askin, The International Criminal Tribunal for Rwanda and its Treatment of Crimes Against Women, in J. Carey, W.V. Rape and Forced Pregnancy under the ICC Statute: Human Dignity, Autonomy, and Consent, Georgetown Institute for Women, Peace and Security Homepage, Beijing+25: The Way Forward for Gender Equality, U.S. Women, Peace, and Security Index 2020, Diversity, Equity & Inclusion in Higher Education, 1412 36th street, N.W., washington d.c. 20057. Serbian Yet, this kind of violence has long been a feature of war, and is repugnant to the values that international criminal law protects. Azerbaijani Forced pregnancy qualifies as both a crime against humanity and a war crime under the ICC statute. 140 E.g. . He was also convicted for conscripting children under the age of 15 into the LRA. (2007). As one victim explained: they kill our males and dilute our blood with rape. 126 Warrant of arrest for Dominic Ongwen, Situation in Uganda (ICC-02/04-01/05-57), Pre-Trial Chamber II, 8 July 2005. Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Application Instituting Proceedings of 20 March 1993, 5455; Final Report of the Commission of Experts Established Pursuant to Security Council. This omission was not for want of evidence, which was available at the time.62 Nor was there a clear lack of jurisdiction, given that the general war crimes provisions in the IMTFE Charter were used to prosecute numerous acts that were not expressly criminalized therein, including rape.63 Rather, it seems that the reason there were no charges for the abuse of the comfort women was that the prosecutors declined to investigate and prosecute these crimes, a decision which the Tokyo Womens Tribunal would later describe as unconscionable and profoundly discriminatory.64 The lack of accountability for the crimes committed against these women, especially when contrasted with the proceedings in post-war Germany, can be seen as further entrenching a perception that the violation of womens dignity and bodily autonomy was not fitting subject matter for prosecution in an international criminal court, in the absence of a genocidal or similar intent. Forced sterilization was also recognized in the Medical case, one of the cases prosecuted by the United States (US) under Control Council Law 10.31 Count Two of the indictment, which related to war crimes, alleged that: Sterilization experiments were conducted at the Auschwitz and Ravensbrck concentration camps, and other places. Korean Second, by applying the charge of forced pregnancy in the LRA setting, the prosecution has demonstrated that this crime has utility outside the context of genocide or ethnic cleansing. This view continued to enjoy support during the negotiations for the Rome Statute, as the following section explains. Chinese See Askin, supra note 3, at 397. II, at 163, 16. However, this term and variations on it (e.g. By the same token, it is not necessary to prove that the perpetrator has a special intent with respect to the outcome of the pregnancy, or that the pregnancy of the woman is in any way causally linked to her confinement.134. By continuing to develop the jurisprudence in this area, the Office and the Court may play a central role in ending impunity for a kind of gender-based violence that remains marginalized in international criminal law, even as the related issue of sexual violence has risen to the fore. . Rwanda Main article: Rwandan Genocide 100 by President Lincoln, 24 April 1863. He was charged with the war crimes of conscripting and enlisting children into an armed group and using them to participate actively in hostilities pursuant to Article 8(2)(e)(vii) of the ICC Statute. Another case to include references to reproductive violence was the Mbarushimana case, which focused on crimes allegedly committed by the Forces Democratiques de Liberation du Rwanda (FDLR), an armed group involved in the conflict in the Kivu provinces of the DRC. R. Cryer, H. Friman, D. Robinson and E. Wilmshurst, An Introduction to International Criminal Law and Procedure (3rd edn., Cambridge University Press, 2014); C. Stahn (ed. The Court's Statute defines forced pregnancy as "the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other . Jalloh (ed. Catherine MacKinnon railed against a legal system that made states lack of protection for women internationally protected. 106 Indeed, Steains recalls that for states and NGOs who wanted to see forced pregnancy recognized in the Rome Statute, an important point to emphasize was that the purpose of this crime was not to interfere in the abortion debate. 110 Prosecutions final brief, Lubanga (ICC-01/04-01/06-2748-Red), Trial Chamber I, 1 July 2002, 205. Danish The United Nations defines "forced pregnancy" as a CRIME AGAINST HUMANITY. 20 Annex II: Beijing Declaration and Platform of Action, adopted at the Fourth World Conference on Women, 27 October 1995, 92. Women held as slaves were forced to bear children and were subjected to torture, beatings and other forms of coercion and deprivation if they did not. 62 Copelon, supra note 3, at 221-223; Dolgopol and Paranjape, supra note 54, at 1617; Womens Tribunal Written Judgment, supra note 54, 4. Search for other works by this author on: The Author (2017). In Part I, I examine the ambiguities in the definition of forced pregnancy as well as the mens rea and actus reus of the crime. In particular, reproductive violence was seldom considered as a crime under international law, except when used as a tool of genocide or ethnic cleansing. Placing the ICCs first forced pregnancy case on a historical timeline has both positive and negative implications. Pashto The United Nations (UN) Security Council created the tribunal in response to reports of widespread and flagrant violations of international humanitarian law in the former Yugoslavia, including mass killings, massive, organized and systematic detention and rape of women, and the continuance of the practice of ethnic cleansing.65 Both sexual and reproductive violence were endemic in this conflict. The Statute of Rome defines SGBV as those crimes committed against persons -. Conversely, reproductive violence does not always involve an act of a sexual nature or impact on the victims sexual identity. Faculty Scholarship Statute, including: committed with the intent to destroy, rape, sexual slavery, enforced prostitution, forced pregnancy or other forms of sexual violence; using children under the age of 15 to participate actively in hostilities. Reproductive Violence in the ICC Statute, 4. See also attempted forced maternity. Telugu 12 E.g. Rome Statute of the International Criminal Court Article 7 (2) (f) states that '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'.98 In the first leg of this law, unlawful confinement is a key element. As the witness explained, she was a Hutu, but she had to die because her husband was a Tutsi and the baby would, therefore, follow the paternal line.77 Several witnesses also spoke of pregnant women miscarrying as a result of sexual and physical violence by Hutu militia.78 Reflecting the lack of attention to reproductive violence in the ICTR Statute, these examples of reproductive violence were all but buried in the indictment. For example, one witness, a doctor who had been working in Rwanda during the genocide, testified about the murder of several hospital staff including a Hutu nurse who was pregnant with a Tutsi baby. Kurdish Finally, this Article considers how the ICC Statute creates a new legal framework for sexual crimes derived from the notions of human dignity and agency. Available at: Resolution 780 (1992), UN Doc. For example, there is evidence that thousands of women were forcibly impregnated during conflicts in Rwanda and the former Yugoslavia, in some cases as the intended outcome of rape, but mostly as the unintended (albeit foreseeable) result.6 There have also been reports of forced sterilization, forced abortion, forced miscarriage and forced (continuation of) pregnancy in numerous conflicts, including the ongoing conflict with the so-called Islamic State.7 All of these acts are capable of causing serious harms, which differ in some respects from harms of a sexual character. Rome Conference Official Records, Vol. B. Gujarati 107 L. Chappell, Womens Rights and Religious Opposition: The Politics of Gender at the International Criminal Court, in Y. Abu-Laban (ed. Forced pregnancy is crime against humanity in these cases - WNEP 57 Womens Tribunal Oral Judgment, supra note 54, 37, 46; Womens Tribunal Written Judgment, supra note 54, 341. Patrycja Grzebyk, Human and Non-Human Targets in Armed Conflicts, Investigative and Charging Considerations for International Crimes Targeting Individuals on the Basis of Sexual Orientation and Gender Identity, Achieving Justice for Child Survivors of Conflict-related Sexual Violence in the Democratic Republic of the Congo in Light of the Kavumu Case: : A Reply to Perissi and Naimer, About Journal of International Criminal Justice, 2. 129 Ongwen Pre-Trial Brief, supra note 128, 512. Filipino II, at 160, 63 and at 162, 11. 78 Ibid., 31 October 1997, at 3435; Transcript, Akayesu (ICTR-96-4-T), Trial Chamber I, 4 November 1997, at 2324. This requirement is not specified in the statutory definition of the crime, but can be inferred from the title of the crime and its negotiating history. Accordingly, it is worth exploring whether other acts of reproductive violence may be prosecuted or otherwise surfaced in international criminal courts. Distinguishing between sexual violence and reproductive violence is therefore conceptually possible and practically useful, because it enables a more nuanced analysis of patterns of impunity for gender-based violence under international criminal law. 18 As others have noted, reproductive violence and sexual violence often overlap (e.g. Urdu For other reports of women becoming pregnant due to rape in this conflict, see Amnesty International, Bosnia-Herzegovina: Rape and Sexual Abuse by Armed Forces (1993), available online at https://www.amnesty.org/en/documents/eur63/001/1993/en/ (visited 17 April 2017), at 19, 27; Ministry of Foreign Affairs Copenhagen, Investigative Mission into the Treatment of Muslim Women in the Former Yugoslavia: Report to the EC Foreign Ministers (Warburton Mission II report) (1993), available online at http://www.womenaid.org/press/info/humanrights/warburtonfull.htm (visited 17 April 2017), 15. 97 Steains, supra note 92, at 366; Bedont, supra note 93, at 197. Forced Pregnancy Law and Legal Definition | USLegal, Inc. Thus far, none have been brought to justice. Aymara Violence which involves a violation of reproductive autonomy or which is directed at people because of their reproductive capacity, henceforth reproductive violence, is one example.5, Incidents of reproductive violence have been documented in numerous twentieth and twenty-first century conflicts, including those where international criminal law has been applied. In addition to reciting the conventional definition of genocide, which refers to the imposition of measures aimed at preventing births,85 the Statute enumerates two other forms of reproductive violence as war crimes and crimes against humanity within the jurisdiction of the ICC. Dari > Punjabi Greek Not even state parties are expressly obliged to do so under the present. As this overview shows, reproductive violence has long been a feature of conflict, and there has been some discussion of it in international criminal courts established prior to the ICC. For example, a report by UN Special Rapporteur found that in 1992, at least 119 women in Zagreb, Sarajevo, Zenica and Belgrade were made pregnant as a result of rape.66 The report does not suggest all of these rapes were committed with an intent to impregnate. Guarani This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.. As others have observed, this definition excludes many experiences which one might expect to be covered by the crime of forced pregnancy. An example, is forced nudity, which is a form of sexual violence with no direct impact on reproductive health or autonomy. It's right there on the first page of the official UN page. Oxford University Press is a department of the University of Oxford. ICC Statute defines forced pregnancy to mean the unlawful confinement of a 'woman' as explained in Part III.A below, "woman" for the purposes of the definition should be interpreted to include women, girls, transgender and intersex persons who are biologically capable of becoming pregnant. "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. Malayalam Haitian Creole you may Download the file to your hard drive. Count One of the indictment, regarding crimes against humanity, alleged that the defendants carried out various acts aimed at the destruction of foreign nations and ethnic groups, with the ultimate aim of strengthen[ing] the German nation and the so-called Aryan race at the expense of such other nations and groups.38 Of the nine acts charged under this heading, two focused on the use of reproductive violence.39.
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