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

[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.]

In this post, 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. You can read part I here.

Genocidal Acts

Preventing Births

As noted in part I, Articles II(b-d) of genocide can all be evinced by reproductive violence. Article II(d) is the natural place to start since it is focused on the imposition of measures intended to prevent births. Such measures can include physical measures such as forced sterilization and abortion, forced pregnancy, rape and other forms of sexual violence, and segregation of the sexes, or be legal or policy measures including prohibitions of marriage and restrictions on reproduction. These measures can also be mental, including as a consequence of rape “when the person raped refuses subsequently to procreate,” or when members of a group, “through threats or trauma” can be impelled to not procreate. Crucially, while these measures do not need to result in the actual prevention of births, it must be shown that they were imposed with the intent to do so.

In the context of Gaza, the UN International Independent Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel (COI) has found that the attack on the Al-Basma IVF clinic, which resulted in the destruction of all reproductive material held at the facility, was a measure intended to prevent births. The COI in particular quoted an expert who noted that “children who were meant to be born from these 5000 reproductive specimens will never exist…families will be forever changed and bloodlines may end.” In addition, while there is no direct documentation of this point as yet, it could be reasonably inferred that the physical and mental trauma suffered during pregnancy and the postpartum period due to the lack of reproductive health care resulting from Israel’s intentional attacks on healthcare facilities and denial of medical and humanitarian aid may lead Palestinians in Gaza to decide not to procreate. The same could be said for the trauma inflicted on those who experienced pregnancy loss or stillbirths due to denied care, or watched their newborns die from the lack of health care, the inability to breastfeed, or lack of adequate food, including formula, as a result of the same. With access to Gaza now theoretically possible, further documentation of these points could support a clearer understanding of the consequences of Israel’s acts and Israel’s intent.

Going beyond Article II(d) is, however, essential – both because the intent requirement may be difficult to demonstrate, and because the harms of reproductive violence go beyond preventing births. For example, in the context of Gaza, the documentation of the harms experienced by women trying to conceive, pregnant, postpartum, and lactating women and newborns also supports an understanding of the genocidal acts of causing serious bodily or mental harm, as well as imposing conditions of life calculated to bring about physical destruction. 

Serious Bodily or Mental Harm

Serious bodily or mental harm, Article II(b), in the context of genocide is situation-specific, and can include, for example, “harm that damages health or causes disfigurement or serious injury to the external or internal organs of members of the group.” Such harm must also be severe enough to threaten the destruction of the group in whole or in part, physically or biologically. It was under this act of genocide that the International Criminal Tribunal for Rwanda (ICTR), first found that sexual violence can be a constitutive act of genocide.

As documented in Gaza by Physicians for Human Rights, women of reproductive age, as well as pregnant, postpartum, and lactating women, faced serious, often life-threatening consequences and suffered severe physical harm due to both lack of access to appropriate medical care and Israel’s restrictions on the entry of adequate nutrition. These consequences have, in many cases, caused both immediate and long-term physical damage, affecting future health and fertility. For example, pregnant women have been unable to access basic postpartum care, as well as appropriate care during pregnancy and labor, increasing risks of sepsis and hemorrhage, as well as the need for emergency obstetric care, which is often performed without appropriate medical supplies, including anesthesia medications and infection control supplies. 

Starvation also has a distinct impact on pregnant women, raising the risk of health complications during pregnancy, including adverse pregnancy outcomes, such as preterm labor, miscarriage, or stillbirths, as well as impacts on fetal development and health. Post-partum starvation can impair physical recovery, and during lactation, impact the quality and volume of their breastmilk, with serious consequences for newborns. For those seeking to become pregnant, starvation may impair their ability to become pregnant or carry a pregnancy to term and have lasting impacts on their fertility. Similarly, while more research is needed in Gaza, starvation can impact male fertility. 

Newborns also experience specific physical harm caused by various factors, such as impaired fetal development due to conflict-related harm to their mothers, including lack of medical care and the severe effects of acute malnutrition on both their immediate and long-term physical health.

These physical harms are compounded by the psychological trauma they endure, stemming from the intersecting issues related to conflict stress, lack of medical care, physical pain and injury, distress over adverse reproductive outcomes such as miscarriage and stillbirth, and witnessing the suffering and/or deaths of their newborns due to lack of access to life-saving health care and adequate nutrition (see above). For example, lactating women who are unable to produce sufficient, high-quality breastmilk as a result of starvation and other denials of care experience shame, stigma, and trauma, including fear of harm or death to their newborns. 

Conditions of Life

As a genocidal act, imposing poor conditions of life may include the “deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion from homes,” as well as “subjecting a group of people to a subsistence diet…and the reduction of essential medical services below minimum requirement.” Imposing conditions to destroy life are often distinguished from the genocidal act of killing, as creating the circumstances for “slow death.” For these conditions to qualify as a genocidal act, it must be accompanied by the intent that these acts be calculated to cause the physical destruction of the group, which can be evidenced directly or inferred from the “objective probability of these conditions leading to the physical destruction of the group,” including based on the nature of the conditions, the duration that group members were exposed to them, and characteristics of the group, such as its vulnerability. 

Israel’s actions in Gaza have created conditions of life that have been described over time by the ICJ as “adverse,” “worsening,” and “catastrophic.” Israel’s operations in Gaza, since October 7, 2023, have included the deliberate and systematic targeting of medical infrastructure, with attacks on and blocking access to facilities providing reproductive health care, including maternity services. These attacks have been paired with “extreme, inconsistent, and deliberately opaque” restrictions on medical supplies, which have inhibited essential medical supplies in Gaza, including those needed to provide reproductive and maternal health care and neonatal care. Together, these conditions have worked since the start of the war in Gaza—for over two years—to deny necessary, and often life-saving, care to women of reproductive age and newborns. 

The conditions of food deprivation and famine in Gaza are well documented, with the IPC declaring severe, emergency, or catastrophic food insecurity (which continues post-ceasefire), UNICEF placing the entire child population of Gaza under age five at risk for acute malnutrition, and WHO in December 2023, reporting that 93% of the population is facing “crisis levels of hunger.” As documented by PHR, newborns and pregnant, post-partum, and lactating women not only have heightened nutritional needs but also face increased and acute vulnerabilities from food deprivation and malnutrition, including severe physical harm and death. Furthermore, during the implementation of aid distribution by the Gaza Humanitarian Foundation (GHF), children, pregnant and lactating women faced, amongst others, increased vulnerability due to specific risks in accessing distribution sites. Taken together, the destruction and denial of reproductive health care and adequate food for over two years to the pregnant, post-partum, and lactating, and newborn populations of Gaza—a population with specific vulnerabilities and needs in this regard—can support the objective probability that the conditions of life imposed on them in Gaza can lead to their physical destruction.

Conclusion

The emerging jurisprudence and the evidentiary record before the ICJ clearly show that reproductive violence is becoming an increasingly important factor in genocide cases and that it cannot be limited to the genocidal act of “preventing births” under Article II(d). Instead, as evidence from Gaza, Myanmar, and other situations demonstrates, such violence is woven into multiple genocidal acts and plays a crucial role in revealing genocidal intent. The harm inflicted on pregnant, postpartum, and lactating women, those seeking to conceive, and newborns is not just incidental to conflict; it is essential to understanding how physical and biological destruction can be executed in genocidal campaigns.

A gender-competent reading of the Genocide Convention requires considering how impacts on reproductive capacity, severe bodily and mental harm, and conditions designed to destroy life converge. In Gaza, systematic attacks on medical facilities that have decimated reproductive healthcare infrastructure, combined with the denial of essential medical and nutritional resources and the resulting acute and long-term harms to women and newborns, collectively indicate a pattern that can evidence both the acts and intent of genocide. These acts strike at the core of the group’s regenerative capacity, undermining its ability to sustain itself in the future. 

As accountability proceedings for genocide in Gaza (and elsewhere) continue to unfold, it is imperative that further consideration is given to how evidence of reproductive violence is essential to understanding harm in atrocity settings. States should support, and documentation mechanisms, UN experts, NGOs, and others should undertake further work to document reproductive violence and its impacts. States should consider how these aspects can be reflected in their interventions at the ICJ, and states or others bringing cases should take a comprehensive approach, integrating evidence of reproductive violence comprehensively. This is vital not only to supporting full justice and accountability for those in Gaza, but also to build and develop the law of genocide to more fully reflect its lived realities.