01 Feb Reproductive Violence in Palestine: The Need for a Feminist Approach to Justice
[Ruby Mae Axelson is a Senior Legal Advisor with Global Rights Compliance specialising in the area of international criminal law and gender justice.
Prachiti Venkatraman is a Legal Advisor with Global Rights Compliance, primarily practising in the areas of international criminal, human rights and humanitarian law.]
The systemic oppression that has characterised the decades long Israeli apartheid and occupation of Palestinian territory and the most recent attack on Gaza impacts all Palestinians: regardless of age, gender, or sexual orientation. Any attempt to seek accountability for international crimes should be grounded in emancipatory, feminist approaches and aim to uncover and highlight the gender-specific causes, modalities and impacts of crimes within the overall framework of Israel’s occupation.
South Africa’s recent submissions to the International Court of Justice (ICJ) made reference to an important, yet under-acknowledged, aspect of Israel’s crimes: reproductive violence. The submissions alleged that, amongst other provisions of the Genocide Convention, Israel is responsible for violations of Article 2(d) which prohibits ‘imposing measures intended to prevent births within the group’ with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group. Israel was ordered to take all measures within its power to prevent the commission of such acts in the order for provisional measures issued by the ICJ on 26 January 2024.
Accordingly, this post seeks to examine further Israel’s conduct which may amount to a violation of Article 2(d) and to situate this within a broader gender-analysis of how the infrastructure of occupation and apartheid perpetuates reproductive violence against Palestinians. We use the language of reproductive justice to acknowledge that the right of all Palestinians to “maintain personal bodily autonomy, have children, not have children, and parent children in safe and sustainable communities” must be secured.
Reproductive Violence as a Violation of Article 2(d)
Gender permeates all aspects of the crime of genocide, from the perpetrator’s commission of genocidal acts to our understanding of the perpetrator’s genocidal intent.. However, despite the widespread attention South Africa’s submissions to the ICJ have attracted across the world, little attention has been given to its inclusion of Article 2(d) or, more generally, the gender-analysis of genocide woven throughout.
The gendered impact of the violence, and the affect this has had on the reproductive health of the population in Gaza was a central feature throughout South Africa’s submissions in relation to all acts of genocide. To provide just a few examples, South Africa highlighted that: at least 70% of the Palestinians reportedly killed in Gaza are believed to be women and children (Application, para. 45); the majority of the wounded Palestinians are women and children (Application, para. 51); large numbers of Palestinian civilians, including children, have reportedly been forced to undress during arrest or detention (Application, para. 54); the lack of water in Gaza (due to Israel cutting off piped water and the aerial bombardment which has rendered most of the water system inoperable) is severely impacting lactating women, and many have been forced to use contaminated water to prepare formula (Application, paras 66-67); and women, children and newborns in Gaza are disproportionately bearing the burden of hostilities both as casualties and in reduced access to health services (Application, para. 85).
More specifically, South Africa allege that Israel is responsible for genocide by imposing measures intended to prevent Palestinian births under Article 2(d) of the Genocide Convention (see e.g., Hearing, p.29). To support this contention, South Africa draws on evidence of direct and indirect violence against pregnant Palestinian women, including the significant impact that the bombardment has had on access to medical care and resources necessary for survival. In particular, South Africa allege that: there are multiple eye-witness accounts of pregnant women being killed by Israeli soldiers, including while trying to access healthcare (Application, para. 95); pregnant women and children –– including new born babies –– are particularly impacted by displacement and lack of access to food, water, shelter, clothes, hygiene, sanitation, and health services, with an estimated 5,500 pregnant women in Gaza giving birth each month in unsafe conditions (Application, para. 96); due to a lack of medical supplies, pregnant women are being subjected to caesareans without anaesthetic and doctors have been forced to perform ordinarily unnecessary hysterectomies on young women in an attempt to save their lives, leaving them unable to have more children (Application, paras 96-97); and premature births have reportedly increased by between 25-30 per cent, as stressed and traumatised pregnant women face a myriad of challenges (Application, para. 98).
At the merits stage, to prove this aspect of its case, South Africa will need to convince the Court that Israel imposed certain measures which were intended to prevent births within a group (i.e., Palestinians in Gaza), and that this was done with the intent to destroy, in whole or in part, that group. However, despite its common occurrence in previous genocides (for example the Nazi regime’s use of forced sterilisation and other methods of preventing births [paras 158-159], through the weaponization of rape and HIV during the Rwandan genocide, and in the use of reproductive violence against Yazidi women) the genocidal act of imposing measures intended to prevent births suffers from a dearth of interpretation in international jurisprudence.
Nonetheless, such measures have briefly been considered by the International Criminal Tribunal for Rwanda (ICTR) to include both direct means of preventing birth and indirect means such as rape or sexual violence resulting in a refusal to subsequently procreate (paras 507-508). Accordingly, Israel’s repeated and targeted attacks against Gaza’s medical infrastructure resulting in the destruction and incapacity of hospitals, along with the deliberate deprivation of food, water and other essential resources and impediments to the flow of humanitarian aid (including medical equipment and menstrual hygiene products), may be considered as indirect measures which are intended to prevent births amongst the Palestinian population of Gaza by negatively impacting their access to essential sexual and reproductive health services and supplies.
This novel application of Article 2(d), a peremptory norm of international law, acknowledges the broad ways in which births can be prevented and encourages a recognition of the underlying interest of reproductive autonomy and, in turn, the reproductive capacity of the group, an area often marginalised in analyses of genocide. There is no scarcity of evidence that these measures have in fact resulted, and continue to result, in the prevention of births amongst Gazans. On 3 November 2023, the World Health Organisation warned that maternal deaths are expected to rise (a fact the ICJ took explicit notice of in its provisional measures order – see para 71), while there has been a “rise in stress-induced miscarriages, stillbirths and premature births.” In January 2024, health care workers reported a 300 per cent increase in the miscarriage rate among pregnant people in Gaza.
A Feminist Approach to Justice in Palestine
While South Africa’s submissions offer an important first step towards accountability for reproductive violence committed as an act of genocide, further work is urgently required to ensure a gender-analysis is embedded within all documentation and investigations of Israeli crimes committed across Palestine.
Crucially, our analysis cannot begin on 7 October 2023, but must consider the patterns of gender and reproductive violence that are integral to the infrastructure of Israeli apartheid and occupation. Within these systems women’s bodily and reproductive autonomy are systematically curtailed. As Ammal Awadallah, the executive director of the Palestinian Family Planning and Protection Association (PFPPA), has stated: what is happening now in Gaza is an accumulation of years of neglect and a lack of resources in Palestine’s health system, particularly reproductive care, as a result of the occupation.
Throughout occupied Palestine, women have long “faced barriers and systematic denial to comprehensive sexual and reproductive health and rights”, impacting pregnancy, childbirth, menstruation, contraceptive access and bodily autonomy. A cursory overview includes the following examples: between 2000-2005, travel restrictions imposed by the occupation (including permits, checkpoints and curfews) resulted in a five-fold decrease in antenatal care and a ten-fold increase in unsafe deliveries; between 2001-2005, the United Nations Population Fund (UNFPA) recorded more than 70 cases of women in labour at checkpoints that resulted in both maternal and new born deaths; in Gaza, the 16-year blockade, has restricted freedom of movement and limited imports of essential supplies, adversely affecting maternal health; and in 2015, 80 per cent of mothers participating in a study reported that they had suffered political violence during pregnancy, with 25 per cent of women in East Jerusalem reporting they were exposed to tear gas inhalation while pregnant.
Even this brief review highlights the centrality of reproductive violence and the control of women’s autonomy to the apparatus of occupation: through restrictions on movement, checkpoints, settler violence, and deprivation of supplies. As Palestinian scholars have emphasised “nationalist framings of reproduction and the idea of women’s bodies as vessels of population growth that must be controlled have framed the Palestinian woman’s womb as a weapon that must be curtailed”. When understood in this way, we can move beyond a narrow view of gender or reproductive violence as an individual harm committed by a perpetrator against a victim, and instead properly situate it as an intrinsic and inevitable aspect of oppressive regimes.
Indeed, gender and reproductive violence have been inherent in systems of oppression throughout history, including slavery, colonisation, apartheid and genocide. For example, under South Africa’s apartheid regime black women were viewed as “impossible to rape” due to their so called “hypersexuality and licentiousness”, while measures were imposed that sought to control racial reproduction including through family planning policies that urged white women to have children and black women to limit family size, employer- and state-backed policies requiring black women to have contraceptive injections to retain jobs, and the more common use of sterilization for black women. In the United States, indigenous women endured a long history of sexual violence and reproductive injustice at the hands of colonial entities and policies. In the 1970s, 25 per cent of Native American women of child-bearing age were sterilised – often under duress or without their consent – following the passage of the Family Planning Services and Population Research Act of 1970. This legacy continues as Native American women suffer one of the highest rates of sexual violence for which there is little accountability and continue to have higher rates of sterilisation than the rest of the population.
This dehumanisation and ‘other’-ing of oppressed women’s bodies in disparate situations and across history highlights that reproductive justice will always lack under the framework of occupation, colonisation and genocide. Unless Palestine is liberated, there is no possibility for reproductive justice.
Ultimately, as international lawyers it is incumbent on us to ensure our analyses understand and unpack the gendered impact of the Israeli occupation and apartheid across occupied Palestine, and the most recent military assault on Gaza, to reveal the full panoply of crimes which are often rendered invisible. South Africa’s submissions before the ICJ relating to the imposition of measures intended to prevent births goes some way in this regard. But further work is necessary to understand the gendered and reproductive impacts of the crimes committed by Israel which cannot be divorced from the wider context of occupation and colonialism. If international law is unable to reckon with these structural injustices, then it is responsible for breeding the very impunity it was created to overcome.