Going Beyond Sexual Violence: Reproductive Violence as Genocide (Part I)

[Akila Radhakrishnan is an independent human rights lawyer and gender justice expert. She is the former President and Legal Director of the Global Justice Center.

Payal Shah is an international legal expert on gender, health, and conflict. She serves as the Director of Research, Legal, and Advocacy at Physicians for Human Rights.]

Today marks the International Day for the Elimination of Sexual Violence in Conflict, a day created to raise awareness of the need to end conflict-related sexual violence and honor its victims and survivors. The recognition of this day followed decades of feminist legal advocacy to make visible the gendered forms of violence that occur in conflict and atrocity situations. In the context of genocide, nearly 30 years ago, the International Criminal Tribunal for Rwanda in the Akayesu case found that sexual violence can be a constitutive element of the crime, a precedent that has been instrumental in recognizing the gendered dimensions of genocide. Today, international courts are considering two landmark cases that provide another “Akayesu moment” to shine a light on a distinct and often narrowly understood gendered form of genocide—reproductive violence.

Reproductive violence is defined as an act or omission that causes harm by interfering with reproductive autonomy and rights or violence directed at people because of their actual or perceived reproductive capacity, and can constitute violations of international human rights, humanitarian, and criminal law. While this post focuses on genocide, important progress is also being made with respect to the concept in other areas of law, including proposals to include reproductive violence or the deprivation of reproductive autonomy and integrity in the draft Convention on the Prevention of Crimes against Humanity.

The Genocide Convention explicitly recognizes that the imposition of measures intended to prevent births can be a constitutive act of genocide (under Article II(d)). However, as we see from the situations in Ethiopia, Myanmar, and Gaza, reproductive violence can manifest across the crime of genocide, and is not limited to genocidal acts under Article II(d). Rather, reproductive violence may constitute acts prohibited under Articles II (b) and (c) of the Genocide Convention, which respectively include acts that “cause serious bodily harm or mental harm to members of the group” and “deliberately inflict on the group conditions of life calculated to bring about its physical destruction in whole or in part,” and also evince genocidal intent. This is clearly reflected in recent filings in ongoing genocide proceedings at the International Court of Justice (ICJ) in both Gambia v. Myanmar and South Africa v. Israel. 

For example, in Gambia v. Myanmar, Gambia argued that “the sexual violence inflicted on Rohingya women and girls was destructive of the Rohingya’s physical integrity, reproductive capacity…and satisfy Article II (b), II (c) and II (d), and reveal the specific intent that the Convention requires.” Similarly, a group intervention by several states in the case noted that the intent to destroy encompasses both physical and biological destruction, with the latter aimed at the “regenerative power of the group.” 

As we wait for the decision in the Myanmar case to come down, the South Africa v. Israel case continues to develop, with 22 states having submitted declarations of intervention. While the topics of interventions vary, from genocidal intent and the only reasonable inference test to the impact on children, a handful of state interventions (as well as South Africa’s own application instituting proceedings) reflect a consideration of reproductive violence, or more broadly impact of Israeli actions in Gaza on reproductive health, as key aspects of understanding genocide in Gaza. 

This post, using Gaza as a case study, will reflect on the applicable legal standards, to demonstrate the imperative to take a broad view on how reproductive violence can support understandings of genocide—both intent and acts, including Acts II(b) and (c) of genocide.

Reproductive Violence in ICJ Filings in South Africa v. Israel

South Africa, in its application instituting proceedings, specifically alleged that the “reproductive violence inflicted on Palestinian women, newborn babies, infants and children” constituted “measures instituted to prevent Palestinian births in Gaza,” citing to evidence of the targeting of pregnant women, as well as the impacts of denied medical care and aid deprivations. In the oral proceedings requesting provisional measures, South Africa further connected the denial of humanitarian aid to the denial of care for pregnant women in the context of article II(d).  

Declarations of intervention filed with the ICJ build on South Africa’s initial arguments but also cite Articles II (b) and (c), when considering the impacts of destruction of or denial of health care, particularly on vulnerable groups of individuals including pregnant, postpartum, and lactating women. For example, Mexico, in discussing the impact of denied humanitarian aid on women and girls, noted that “in front of the possibility that a genocide exists, special consideration needs to be given to the differentiated effects that the policies have in already vulnerable groups. This analysis should add up to the consideration as to whether the denial of humanitarian aid can be considered as constituting a breach of Article II(c) of the Genocide Convention.” 

Similarly, Namibia in discussing the impact of attacks on health care under Article II(b), noted that “The destruction of medical facilities or prevention of the supply of anesthetics and other medical supplies have distinctive effects on women, including in relation to maternal health and care during the process of giving birth, as well as on their newborn babies.” Colombia also noted that should a causal relation be found between strikes and blockades and “miscarriages, stillbirths, and premature births as well as deaths from preventable causes in both women and babies,” this would be sufficient for inference of genocidal intent. Iceland emphasized “the situation of pregnant, postpartum and breastfeeding women, and those trying to conceive, as well as the overall conditions of maternity and reproductive health” and noted  that “in this respect, the application of Article II (c), as well as Article II (b) is without prejudice to the specific scope of Article II (d).”

Genocidal Intent: Destruction of the Regenerative Capacity of the Group

While gender competent analysis of genocide often focuses on acts of genocide (see part II), it can also be used to support a finding of genocidal intent. The specific intent of genocide, to “destroy, in whole or in part” a protected group, can be accomplished through either physical or biological destruction. While analyses of genocidal intent often focus on physical destruction, biological destruction, which targets the regenerative capacity and long-term survival of a group, can also help to substantiate the special intent of genocide. Courts have also found that the foreseeable procreative impacts of acts that do not, on their face, target reproductive capacity can also support inferences of genocidal intent. For example, in assessing genocidal intent with respect to the separation of the sexes and killing of men in Srebrenica, the ICTY found that “Bosnian Serb Forces must have been aware of the detrimental impact that the eradication of multiple generations of men…would have severe procreative implications for the Bosnian Muslims in Srebrenica and thus result in their physical extinction.” There is clear room to understand Israel’s intentional and foreseeable actions targeting maternity and reproduction, as a part of the facts and circumstances, including the general context that can lend itself to an inference of genocidal intent. 

On foreseeability, the consequences of starvation, destruction of medical facilities, and limitations on medical supplies on pregnancy and reproductive health, including fertility, are well documented and understood. Israel’s own guidelines for pregnant and lactating women, including in situations of emergency, reflect these understandings. This is further supported by the documentation and warnings issued by multiple international agencies and organizations, including the World Health Organization, UN Office for the Coordination of Humanitarian Affairs, and Oxfam. The International Court of Justice, in its advisory opinion on Israel’s obligations in relation to the presence and activities of the UN, has also noted these adverse consequences and stated that “Israel is obliged to ensure that women in the Occupied Palestinian Territory have ‘appropriate services in connection with pregnancy, confinement, and the post-natal period…as well as adequate nutrition during pregnancy and lactation.’”

The harm to the reproductive capacity of Palestinians living in Gaza is not only foreseeable but also apparent in Israel’s deliberate attacks, including blockade of aid, raids, and the destruction of facilities that provide reproductive services and healthcare. This includes the repeated targeting of Al-Awda Hospital, the primary reproductive health care facility operating in northern Gaza, despite MSF sharing the hospital’s geo-location with authorities. Other hospitals that were designated explicitly as providing reproductive health care, including Emirati Maternity Hospital and Sahabah Hospital, were also targeted and, as a result, forced to cease operations. Maternity wards, such as at Al-Shifa and Nasser hospitals, were deliberately attacked and rendered inoperative. As noted above, the destruction of the Al-Basma IVF clinic, which not only destroyed the facilities but also all reproductive material stored there, had a direct impact on the reproductive capacity and fertility of Palestinians in Gaza. While Israel has argued that these facilities were militarized, PHR’s data does not confirm this finding; further, an international humanitarian legal analysis of the legality of these attacks in light of allegation of militarization still requires a comprehensive assessment of repercussive impact on reproductive health as part of a proportionality and precaution analysis.

Attacks on reproductive care should also be viewed alongside the destruction and denial of medical supplies and facilities, including neonatal intensive care units, to support newborn survival. Any analysis of Israel’s genocidal intent should specifically consider how its patterns of attack, targeting, and deprivation impact the regenerative capacity of Palestinians in Gaza.

In part II, we delve into how reproductive violence can support findings of the genocidal acts of preventing births, serious bodily or mental harm, and conditions of life, and look at the imperative to ensure that reproductive violence is comprehensively considered in all potential cases of genocide.