Editor’s note: This is part of our series on gender in the draft crimes against humanity treaty.
In Colombia, the Fuerzas Armadas Revolucionarias de Colombia (FARC) forced contraception and unsafe abortions on female fighters. In Guatemala, military forces injected indigenous women held as sexual slaves with contraceptives and subjected them to other measures intended to prevent births, including feticide and sexual violence that harmed their reproductive organs. In Uganda, women and girls abducted by the Lord’s Resistance Army (LRA) and forced into slavery were raped and subjected to forced pregnancy by LRA leaders.
Courts and investigative bodies have turned their attention to these forms of conflict-related reproductive violence: the Colombian Constitutional Court found that the forced contraception and forced abortion committed by the FARC constituted war crimes; a Guatemalan court found that the forced contraception amounted to “crimes against the duties of humanity” and that other measures intended to prevent births amounted to genocide; and the International Criminal Court (ICC) convicted LRA commander Dominic Ongwen of forced pregnancy as a war crime and crime against humanity.
States currently deliberating the Draft articles on Prevention and Punishment of Crimes Against Humanity in a U.N. process have a historic opportunity to build on these legal precedents and ensure that the draft treaty has strong protections for reproductive autonomy – the right of every individual to exercise agency over their fertility, and their choice about whether, and in what circumstances, to reproduce.
We, together with 11 leading human rights organizations and international experts on reproductive autonomy, sent a legal brief to U.N. Member States in October, outlining three specific ways in which the draft crimes against humanity treaty could be strengthened to protect reproductive autonomy:
- amending draft article 2(1)(g) to expressly refer to reproductive violence as a crime against humanity;
- removing the redundant reference to “national laws relating to pregnancy” from the existing definition of forced pregnancy in draft article 2(2)(f); and
- using gender-inclusive language (“woman, girl, or other person” instead of “woman”) in the definition of forced pregnancy in draft article 2(2)(f).
Expressly Recognizing Reproductive Violence as a Crime Against Humanity
Our brief argues that the draft treaty should expressly include reproductive violence as a crime against humanity, by adding the words “or reproductive” to draft article 2(1)(g) as follows (in bold):
For the purpose of the present draft articles, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual or reproductive violence of comparable gravity.
Mirroring the 1998 Rome Statute of the International Criminal Court (ICC), the draft treaty already identifies two forms of reproductive violence as capable of constituting crimes against humanity, namely forced pregnancy and enforced sterilization, but there are other equally grave violations of reproductive autonomy that are not specifically listed, such as forced abortion, forced contraception, forced breastfeeding, forcible impregnation (impregnating a victim by force, threat, coercion, or deception, without the additional elements of unlawful confinement and special intent required for the crime against humanity of forced pregnancy), or forcing a person to impregnate a third party, among others.
While these violations may fall under other acts already prohibited by the draft treaty, such as enslavement, torture, sexual violence, or other inhumane acts, the draft treaty should still expressly recognize reproductive violations as a distinct legal harm. This will demonstrate States’ commitment to protecting reproductive autonomy, draw attention to a historically overlooked category of violations, and help make these crimes more visible to investigators, prosecutors, and judges who might otherwise overlook violations of reproductive autonomy that have not been specifically enumerated as crimes against humanity in past treaties.
Twenty-five years ago, in drafting the Rome Statute, States recognized that although sexual violence could be prosecuted using existing war crimes and crimes against humanity like torture, enslavement and other inhumane acts, expressly articulating rape and other forms of sexual violence in the Rome Statute was essential to ensuring that these historically overlooked crimes did not continue to be sidelined by the ICC. As a result, the Rome Statute explicitly recognizes a range of sexual violence crimes. Now, States should take the same approach by recognizing reproductive violence as a distinct harm in the draft treaty.
Removing the Unnecessary “National Laws” Sentence from the Crime of Forced Pregnancy
Following the Rome Statute, the draft treaty 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 grave violations of international law.” This crime was compelled into codification in the Rome Statute because of the atrocities committed in Bosnia and Herzegovina between 1992 and 1995, where Serb forces reportedly raped non-Serbian women, and then detained them in facilities without access to abortion, so that they would be forced to bear what their captors called “Serb babies.”
However, the Rome Statute’s definition of forced pregnancy, which has been copied into the crimes against humanity draft treaty, includes the following legally meaningless sentence: “This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.” As the drafting history shows, this sentence was added as a political compromise during the negotiations at Rome to placate certain states concerned about the Rome Statute’s ability to nullify national abortion laws. It serves no legal purpose and ought to be excluded from the draft treaty.
As our brief notes, restrictions on abortion under domestic law are unlikely to amount to “forced pregnancy,” because of the cumulative requirements that the victim was forcibly impregnated and unlawfully confined, and that such confinement was committed with the intent of either affecting the ethnic composition of a population or carrying out grave violations of international law. Further, the contextual elements of a crime against humanity, of widespread or systematic attack, with knowledge of the attack, must also be met.
Second, the sentence does not add any element to the crime of forced pregnancy or impact its legal definition in any way. This was affirmed by the ICC Appeals Chamber in Ongwen, which clarified that the sentence “was inserted to alleviate the concerns raised by some States” and that it “does not impose a new element to the crime.” Instead, it merely states the obvious, that the ICC has no authority to directly amend, nullify, or void national legislation. It has no relevance in the draft treaty, which does not define the ICC’s jurisdiction.
Instead, the sentence might actually add to confusion and be counterproductive by allowing for religious and ideological concerns about control over women’s bodies to be raised, rather than addressing the grave violation of reproductive violation that the section is intended to deal with. Additionally, the sentence goes against the development of international law towards recognizing reproductive autonomy.
The brief therefore recommends deleting the redundant reference to national laws from the definition of forced pregnancy in the draft treaty, consistent with many international court statutes and national laws codifying the crime against humanity of forced pregnancy after the Rome Statute.
Using Gender Inclusive Language in the Definition of Forced Pregnancy
Consistent with the Rome Statute, the definition of “forced pregnancy” in the draft treaty is currently limited to victims who are “women.” This language excludes other individuals who may be capable of becoming pregnant, including transgender men, intersex persons, or non-binary/gender non-conforming persons. It is also the only crime in the draft treaty for which the identified victim is referred to with a gendered term – all other crimes refer to “persons.”
Accordingly, to cover all potential victims of “forced pregnancy,” the brief recommends adding the words “girl, or other person” in draft article 2(2)(f) as follows (in bold):
the unlawful confinement of a woman, girl, or other person forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law.
Conclusion
In the draft crimes against humanity treaty, States have a historic opportunity to strengthen protections for reproductive autonomy within the framework of international law. At a minimum, States should consider these three changes to the text of the draft treaty to ensure that the treaty is truly relevant to the lived experience of all people whose reproductive autonomy is imperiled in the context of a widespread or systematic attack against a civilian population.