Reproductive Violence in International Criminal Law and the ICC OTP’s Revised Policy on Gender-Based Crimes: An Emerging Concept

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We are on the cusp of a new concept emerging in international criminal justice (ICJ): reproductive violence.

While the broader concept of reproductive rights is well-known, and has a long and fraught history in domestic and international human rights law (for instance, Center for Reproductive Rights), the narrower concept of reproductive violence occurring in contexts of mass atrocities – that is, violence that violates reproductive autonomy and/or is directed at people on account of their actual or potential reproductive capacity, or perceptions thereof – has remained relatively underexplored.

Some crimes within the jurisdiction of the International Criminal Court (ICC) involve reproductive violence. Three are specifically enumerated in the Rome Statute: forced pregnancy as a crime against humanity and war crime (articles 7(1)(g), 8(2)(b)(xxii), 8(2)(e)(vi)); enforced sterilization as a crime against humanity and war crime (articles 7(1)(g), 8(2)(b)(xxii), 8(2)(e)(vi)); and genocide by imposing measures intended to prevent births (article 6(d)).

Many other acts of reproductive violence are not, however, explicitly named as such in the Rome Statute, though they could be charged under different provisions. These acts, occurring in the context of mass atrocities, might include forced abortion, forced breeding, forced castration, denial of essential reproductive healthcare, physical violence aimed at reproductive organs, forced separation of the sexes, and forced use of contraception.

It is only very recently, however, that the concept of reproductive violence has been recognised in a formal ICL policy.

The Revised ICC OTP Policy on Gender-Based Crimes

Throughout 2023, the Office of the Prosecutor (OTP) conducted a review process to renew its 2014 Policy Paper on sexual and gender-based crimes (‘2014 SGBC Policy’). This process was led by Professor Kim Thuy Seelinger, guided by Deputy Prosecutor Nazhat Shameem Khan, and supported by the OTP’s Gender and Children Unit. As part of the 2023 review process, the team engaged external experts from around the world, including through a global call for submissions and in-depth consultations with colleagues in different regions.

The revised 2023 Policy on gender-based crimes (‘2023 GBC Policy’), which was launched during a side event to the 22nd Session of the Assembly of States Parties on 4 December 2023, clarifies fundamental principles, builds on new jurisprudence and lessons learned in the past several years, and strengthens the OTP’s ability to take an intersectional, survivor-centred approach in its work.

The 2023 GBC Policy consists of a general introduction, presentation of key terms and concepts, an articulation of fundamental principles grounding the OTP’s work on gender-based crimes and a discussion of the OTP’s practical application of these principles at every stage.

As will be discussed below, this renewed Policy also, importantly, recognises the concept of reproductive violence. However, with the exception of this Policy, the concept of reproductive violence has not been included in any formal ICJ or transitional justice instruments and acts of reproductive violence have rarely been charged or prosecuted. As Laverty and de Vos have put it, reproductive violence has been ‘overwhelmingly absent’ from transitional justice [and ICJ] processes, ‘both as a substantive area of focus as well as in the discourse adopted.’ This has given rise to a significant knowledge and accountability gap around the concept.

Knowledge and Accountability Gaps

Though not expressly recognised as such, reproductive violence is not a new phenomenon. It has occurred in several mass atrocities in the past and present. Altunjan notes, for instance, that from 1933 on, reproductive violence was an important element of Nazis’ eugenics and racial hygiene policies. These policies included forced sterilisation and forced abortions. Thus, for instance, the District Court of Jerusalem convicted Eichmann, inter alia, for measures he took ‘calculated to prevent births among Jews, by directing that births be banned and pregnancies terminated among Jewish women in the Terezin Ghetto, with intent to exterminate the Jewish People.’

Other situations where acts of reproductive violence have occurred include forced breeding in Cambodia, ‘rape camps’ in the former Yugoslavia, forced contraception and forced abortion in Colombia, and forced pregnancies in Sierra Leone and Uganda.

However, reproductive violence has rarely been recognised as a distinct category of gender-based violence. Instead, the traditional approach in ICJ has been to frame (and bundle) it with the better-known ‘sexual violence’ category. Thus, for instance, while the ICC Rome Statute refers to forced pregnancy and enforced sterilization, these crimes appear halfway in a list of sexual violence crimes, which ends with the words ‘or any other form of sexual violence’. And similarly, in its original 2014 SGBC Policy, the ICC OTP described forced pregnancy and enforced sterilization as ‘sexual and gender-based crimes’, with no reference anywhere in that document to their reproductive dimensions.

Various challenges arise from this conceptualisation of acts of reproductive violence. Firstly, the conflation of sexual and reproductive violence gives rise to a knowledge gap with respect to our understanding of why reproductive violence occurs in mass atrocities. The phenomenon of sexual violence in mass atrocities has received extensive attention in the literature (eg. Ní Aoláin 2000, Brammertz and Jarvis 2016), and theories from this area may be extremely valuable in shedding light on aspects of reproductive violence. However, broader or newer theories may be necessary to understand reproductive violence in its own right (rather than as a form of sexual violence), and how such violence may intersect with aspects of demographic engineering, population strategies, xenophobia and extremist ideologies.

Secondly, the conflation of sexual and reproductive violence may blur the distinction between the harms inflicted by the two categories of violence. As Altunjan (2021) notes, the primary injury of sexual violence lies in the violation of sexual autonomy, as in the right to decide whether, how and under what circumstances to engage in sexual activity. In contrast, the primary injury of reproductive violence is a violation of reproductive autonomy, as in the right to decide whether, how, and under what circumstances to reproduce.

And thirdly, the conflation of sexual and reproductive violence tends to relegate the latter to the background. Prosecutors, for instance, may tend to prioritise better-known crimes of sexual violence for investigation and prosecution, over lesser-known and less specific acts of reproductive violence. And this, in turn, may give rise to an accountability gap.

While in some situations where acts of reproductive violence have occurred there were no viable options for accountability, in other cases, courts that had the power and jurisdiction to try those acts did not do so. Grey notes, for instance, that even though evidence of forced abortions emerged during the Lubanga trial at the International Criminal Court (ICC), this act was not charged. And similarly, no charges for forced breeding were brought before the Extraordinary Chambers in the Courts of Cambodia, even though there was extensive evidence showing that men and women were forced into marriages, which they had to ‘consummate’ in order to produce more workers and soldiers for the state.

The Emergence of a New Concept in ICJ

It was, however, the lack of prosecutions for the ‘rape camps’ by the International Criminal Tribunal for the former Yugoslavia (ICTY) that generated the most attention in academic and non-academic literature. Even though evidence that Muslim women had been forcibly impregnated by Serbian soldiers emerged in various trials before the ICTY, and it was possible to charge those acts as violations of international humanitarian law, no charges for forced impregnation were brought (Verrall 2016).

This accountability gap served as a catalyst for feminist academics and NGOs, including the Women’s Caucus for Gender Justice, to subsequently advocate for an express reference to ‘forced pregnancy’ (and ‘enforced sterilisation’) as crimes under the ICC Rome Statute. While the proposal to include forced pregnancy was highly controversial and met with significant resistance, it was eventually accepted and that was a ground-breaking moment for reproductive violence in ICJ.  

However, progress towards accountability for reproductive violence soon began to slow down. In early ICC cases, many incidents of reproductive violence, such as in the Democratic Republic of the Congo, went uncharged. In the meantime, moreover, reproductive violence continued to occur and new reports of such violence in mass atrocities began to emerge. These included reports of forced abortions and use of contraception against the Yazidi people in Iraq and Syria, the use of forced sterilisation against the Uyghurs in China, and measures intended to prevent births against the Rohingyas in Myanmar.

The traditional approach of continuing to frame these acts as sexual violence in ICJ also persisted. As a result, a small group of scholars, including Altunjan, Chinkin, Grey, Laverty and de Vos and Zammit Borda, began advocating for reproductive violence to be recognised as a separate and distinct category of gender-based crimes, and for the need to ‘surface’ this category of violence in ICJ. These efforts were supported by a number of civil society organisations, such as the Women’s Initiatives for Gender Justice, the International Bar Association Human Rights Institute and Women for Justice.

The next important development came in March 2016, when the ICC Prosecutor brought, for the very first time, charges of forced pregnancy against Dominic Ongwen. The ICC Trial Chamber delivered its judgment in this case on 4 February 2021. In its judgment, the Chamber emphasized the value of ‘reproductive autonomy’ underpinning this crime (para. 2717). This was the first formal recognition by an ICC Chamber that the crime of forced pregnancy affected a victim’s reproductive, rather than sexual, autonomy.

Following this landmark judgment, the concept of reproductive violence as a distinct category of gender-based crimes was crystallised in the revised 2023 GBC Policy (December 2023). This revised Policy is tellingly sub-titled: ‘Crimes involving sexual, reproductive and other gender-based violence.’ Indeed, the renewed Policy signalled a clear shift in direction, stating:

While the term “sexual and gender-based crimes” (“SGBC”) reflected conceptualisation of these crimes in 2014 when the first Policy was launched, the Office now refers to “GBC”. The term “GBC” encompasses crimes involving sexual, reproductive, and other gender-based violence, better reflecting current understanding about these forms of harm and how they relate to each other.

This shift in direction was further reinforced by the ICC Prosecutor, Karim A. A. Khan KC, at the 2023 GBC Policy’s launch, who stated:

This Policy is not an editorial revision, it is a root and branch revision. It is a completely new draft that Professor Kim Seelinger has undertaken. […] The Policy of 2014, I think was a remarkable Policy. But times have changed, we had a deepening understanding from the world of academia, from community [civil society organisations], from the work of the [ICC Prosecutor’s] Office that required this fundamental re-write.

One of the most significant changes that this 2023 GBC Policy brings is that it recognises the importance of not conflating reproductive violence with sexual violence. In this respect, it defines the two separately: (a) reproductive violence violates reproductive autonomy and/or it is directed at people on account of their actual or potential reproductive capacity, or perceptions thereof; whereas (b) sexual violence is a form of gender-based violence that involves the commission or attempted commission of sexual acts.

The 2023 GBC Policy thus represents an important milestone for the emergences of a new concept in ICJ, that of reproductive violence. While this Policy is not legal-binding, it serves to articulate the concepts, principles, and practical considerations that ground the ICC OTP’s work on gender-based crimes. As Professor Seelinger noted at the launch of the new Policy:

‘we wanted to talk about gender-based crimes to signal that we are also talking about non-sexual crimes that are gendered either in motivation, in form, in targeting or in impact.’

This Policy has the potential to transform how gendered acts within genocide, mass atrocity, and war are prosecuted. This, in turn, may lead to greater recognition of, and accountability for, acts of reproductive violence which may further lead to more extensive and explicit criminalisation of such acts in the future.

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