Symposium on Reproductive Violence in International Law: Protections for Reproductive Violence in the ICC – Continuing the Women’s Caucus for Gender Justice’s Legacy

[Alix Vuillemin is the Executive Director of Women’s Initiatives for Gender Justice. Rosemary Grey is a Senior Lecturer at Sydney Law School, The University of Sydney.]

This post forms part of the Opinio Juris Symposium on Reproductive Violence in International Law, in which diverse authors reflect on how the International Criminal Court and other jurisdictions have responded to violations of reproductive health and reproductive autonomy. The symposium complements a one-day conference to be held on 11 June 2024,  in which legal practitioners, scholars, activists, and survivors will meet in The Hague and online to share knowledge and strategies for addressing reproductive violence in international criminal law. Interested readers can register to attend the conference online without cost.

This post recognises and honours the role that women’s rights activists, working together as the Women’s Caucus for Gender Justice played in surfacing reproductive violence during the creation of the International Criminal Court (ICC) while reassessing certain positions in light of contemporary understandings. It also highlights ways that the Caucus’s successor organisation, Women’s Initiatives for Gender Justice (WIGJ), continues the mission.

Putting Reproductive Violence on the Agenda

The Women’s Caucus for Gender Justice, a multinational network of women’s rights activists and lawyers, formed in 1997 to enhance the gender-competence of the ICC and embed a gender perspective in the Rome Statute. Before the Caucus’s involvement there had been some attention to sexual violence in the codification of international criminal law, but almost none to violations of reproductive autonomy and reproductive health (‘reproductive violence’). 

The 1993 ICTY Statute and 1994 ICTR Statute listed rape as a crime against humanity, and the latter also referred to rape, enforced prostitution and indecent assault as war crimes. These crimes were similarly listed as war crimes and crimes against humanity in the International Law Commission (ILC)’s 1996 Draft Code of Crimes against the Peace and Security of Mankind, and as war crimes in a February 1997 proposal by New Zealand and Switzerland to the Preparatory Committee on the Establishment of an ICC (PrepCom).

The turning point came in December 1997, when the Women’s Caucus made its first recommendations to the PrepCom’s working group on war crimes, referring to ‘attacks on reproductive integrity such as forced pregnancy or forced sterilization’ and urging states to list both offences as war crimes in the ICC Statute. 

This mention of ‘forced sterilization’ recalled the large-scale forced sterilization of Jews, Roma, Polish and other non-Aryan peoples in Nazi Germany, as prosecuted in the Nuremberg Tribunal and subsequent trials under Control Council Law 10. The reference to ‘forced pregnancy’ picked up on the 1993 Vienna Declaration on Human Rights, listing ‘systematic rape, sexual slavery, and forced pregnancy’ as violations of international humanitarian law. 

It also responded to reporting from Rwanda, where thousands of women had borne children as a result of rape, and Bosnia, where Serb forces had raped and detained non-Serbian women so they would bear what the perpetrators called ‘Serb babies’ (e.g. UN Experts 1992, para. 248; Fisk 1993; BiH ICJ 1993, paras 54-55; Goldstein 1993; Decision on Karadžić & Mladić Indictments 1996, para 94). 

The Caucus argued:

‘Where impregnation or enforced pregnancy results [from rape], the invasion of the body and self is total. Women are being treated as chattel for the purpose of reproduction; this is another form of gender enslavement […] A more invasive form of violence is hardly imaginable: the pregnancy of rape is intended to and does take over a woman’s body for nine months, at the end of which she faces the intolerable “choice” of keeping a child of rape, abandoning it, and, in some contexts, giving it up for adoption.’

The advocacy had impact. The PrepCom’s December 1997 draft statute included an option to name rape, sexual slavery, enforced prostitution, enforced pregnancy, enforced sterilization, and any other form of sexual violence also constituting a grave breach of the 1949 Geneva Conventions or serious violation of common Article 3 of those conventions as war crimes. 

At last, some forms of reproductive violence – albeit classified as sexual violence – were on the agenda. But it would be an uphill battle to secure their recognition in the Rome Statute. Particularly, the proposal to include forced pregnancy proved controversial.

Forced Pregnancy in the Rome Statute

Although many states backed this proposal, the Holy See opposed, preferring ‘forcible impregnation’ instead.  That term was rejected because it did not capture all elements of enforced pregnancy, including the implications of forcibly keeping a woman pregnant for any period of time (pp. 366-367). Further opposition, including from Libya, the UAE, Saudi Arabia, Iran, and Ireland, was based on the fear that restricting access to abortion under national law would constitute ‘enforced/forced pregnancy’ under the Rome Statute. This set the scene for difficult negotiations. Women’s Caucus co-founder Rhonda Copelon recalled:

‘Forced pregnancy was the last to be resolved [at Rome], as the Vatican, supported by the Islamic countries, sought unsuccessfully to eliminate any suggestion that obstructing a woman’s access to abortion could be a crime.’

Continued advocacy by the Women’s Caucus, and support from like-minded states — including Azerbaijan, Australia, Bosnia-Herzegovina, Canada, Costa Rica, India, Mexico, Nigeria, Solomon Islands, South Africa, Turkey, the USA, Finland, the Netherlands and Sweden —was critical to overcoming this impasse (Glasius, Ch. 5; Steains pp. 365-369). It helped that the Caucus had a large and geographically diverse presence at the Rome Conference, enabling Caucus members to forge strong links with delegates of like-minded states and to respond quickly to negotiating challenges.  

Ten days into the Conference, the Caucus circulated a memo seeking alleviate concerns about the crime of forced pregnancy. It stated:

‘National laws which criminalize the termination of pregnancy are not violations under international law and thus would not come within the ICC’s jurisdiction. The issue of abortion has no place in the current discussions about the crime of enforced pregnancy.

[…] The most recent and publicised example of forced pregnancy occurred in Bosnia and Herzegovina, where soldiers raped women until they became pregnant and then continued to imprison them. Although not as well publicised, forced pregnancy occurred in Rwanda where thousands of women were raped and then bore children as a result of those rapes.

[…] Forced pregnancy also took place during the period of African-American slavery. 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. Some but not all of these pregnancies were the result of rape.

It is crucial that this conference recognize, punish and deter the future commission of this terrible crime of violence against women. Therefore, the crime of forced pregnancy must be listed as both a war crime and a crime against humanity.’

On the second-last day of the Conference, delegates finally reached a compromise. ‘Forced pregnancy’ would be named as a war crime and crime against humanity, but with an awkward clause: 

‘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. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.

This definition was narrower than the Caucus had hoped: the ‘unlawful confinement’ test excluded for example most women and girls in Rwanda, who were not typically confined after being forcibly made pregnant. 

However, the Caucus and like-minded states managed to broaden the crime beyond situations where victims are impregnated with a view to making them to bear children who will (in the perpetrators’ view) be of a different ethnicity to the mother, as in Bosnia. This was achieved by including two alternative specific intents: to change the ethnic composition of a population or to carry out other grave violations of international law. Thus, the definition recognises the particularity of forced pregnancy when used as a tool of genocide or ‘ethnic cleansing’ and allows the crime to be applied more widely. 

This would later be important in the ICC’s first ‘forced pregnancy’ case (Ongwen, from the situation in Uganda). In that case, Ongwen was convicted of forced pregnancy based on evidence that he impregnated two women by raping them and then unlawfully confined them with the intent of carrying out ‘other grave violations of international law’, namely, to continue subjecting them to rape and other Rome Statute crimes. 

Negotiating the ICC Elements of Crimes

During the negotiations for the ICC Elements of Crimes (providing detailed guidance on Rome Statute crimes), negotiations between 1999 and 2002, the Women’s Caucus advocacy continued. 

The Caucus warned against a proposal by eleven states stipulating that the inclusion of any act as a in the Rome Statute crime against humanity ‘do[es] not affect family matters recognized by different national laws of the State Parties’, and seeking to water down certain gender crimes, such as by excluding from the crime of forced pregnancy all ‘acts related to natural marital sexual relations or the bearing of children in different national laws in accordance with religious principles or cultural norms’.

In response, the Women’s Caucus cautioned:

‘Such restrictions and limitations will clearly affect the ability of the Court to prosecute violations of women’s human rights, particularly crimes of gender and sexual violence as these often take place within the realm of family when committed in times of “peace”’. The best example is that it will put the current Afghanistan situation out of the ICC’s jurisdiction.’

The Caucus also noted  the proposal conflicted with the 1993 Declaration on the Elimination of Violence Against Women, which provides that ‘states should condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination’. A majority of states agreed with the Caucus, leading to the proposal’s rejection.

Ongoing Efforts 

The Women’s Initiatives for Gender Justice (WIGJ), celebrating its 20^th anniversary this year, was created to build on the Women’s Caucus legacy. 

In 2021 we co-jointly filed an amicus curiae brief on forced pregnancy, together with the Global Justice Centre and Amnesty International. The brief, and our oral submissions in the Appeals Chamber, offered a detailed analysis of the elements of ‘forced pregnancy’, identified reproductive autonomy as the value protected by this crime, and argued that the Trial Chamber was correct in finding that laws relating to pregnancy in the perpetrator’s state (Uganda) were irrelevant to the ICC’s analysis of this crime. 

It was a privilege to see the brief cited in the 2022 Appeals Judgment (paras 1051-1068), recognising that ‘[t]he negotiations on this crime originated from the proposal of the Women’s Caucus for Gender Justice’ (para. 1053).

More recently, WIGJ’s 2023 report ‘Judicial Approaches to Sexual and Gender-Based Crimes at the International Criminal Court’ identified progress and gaps around reproductive violence in the Court’s jurisprudence, and recommended that the reproductive consequences of crimes be viewed as aggravating circumstances on sentencing, such as where rape results in pregnancy.

Reflections 

As advocates having the privilege to continue the Women’s Caucus spirit and legacy, we reassess certain positions in light of contemporary understandings.

Informed by the reproductive justice movement, we might ask if this advocacy was inclusive enough of marginalised actors, and whether it could have put greater weight on the need to create economic and social conditions in which people can exercise reproductive autonomy, rather than focusing on freedom from interference with reproductive choices.

In addition, while understanding the strategic necessity of the advocacy, we now query the Caucus’s perception that national abortion bans necessarily fall outside the definition of ‘forced pregnancy’. The ICC may one day find, we argue, that national abortions bans may, in some circumstances, satisfy the elements of forced pregnancy or other Rome Statute crimes.

Today, advocacy on the term ‘woman’ in the definition of this crime would be updated to understand any person forcibly made pregnant.

We also recognize now that the focus on ‘forced pregnancy’ may have diverted attention from other serious violations of reproductive autonomy, such as forced impregnation, forced abortion, forced maternity, or the intentional destruction of reproductive healthcare. While such violations can be prosecuted using existing Rome Statute crimes, the lack of a specific provision – such as ‘other forms of reproductive violence’ – means that justice actors are not explicitly prompted to examine these crimes.

The Way Ahead 

The inclusion of enforced sterilization and forced pregnancy in the Rome Statute, and the ICC Appeals Chamber’s affirmation that reproductive autonomy is a value protected by the Statute, are important milestones. Now, further conceptualising and action to make full use of the Statute in this regard is needed. 

This includes advanced use of Article 21(3), ensuring non-discriminatory outcomes in adjudicating international crimes, and incorporating progressive understandings of international human rights law on reproductive violence. 

Moreover, a clear understanding of the conceptual differences between sexual and reproductive violence is essential. Placing reproductive violence under the umbrella of ‘sexual violence’ makes it difficult to speak about continuing gaps in investigations and prosecutions (i.e. gaps around reproductive violations, as opposed to gaps around forced sexual acts). It also indicates the primary harm is violating sexual autonomy, but with crimes of reproductive violence there is an additional aspect to consider: violating reproductive autonomy. 

Accordingly, recognising sexual and reproductive violence as overlapping but distinct concepts, as the ICC Office of the Prosecutor’s new Gender Crimes Policy does, can enhance justice processes and better capture the lived experience of victims/survivors. 

To support further discussion among practitioners, scholars, activists and survivors, Women’s Initiatives for Gender Justice is convening an one-day international conference on June 11^th 2024 in The Hague. The conference aims to facilitate knowledge-sharing and legal strategizing about accountability for reproductive violence under international law. Online registrations are still open, without cost.

The inclusion of forced pregnancy in the Rome Statute, with a central role for the Women’s Caucus, was hard-won. Today’s UN Sixth Committee’s deliberations on a convention on crimes against humanity are showing how challenging it still is – decades later – to secure protections for reproductive violence under binding international law.