icc statute forced pregnancy
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icc statute forced pregnancy
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icc statute forced pregnancy
Belarusian The Rome Statute of the International Criminal Court is the first international treaty to explicitly define the crime of forced pregnancy, but its enactment was controversial. Although the concept of a forced pregnancy crime is relatively new, "forced impregnation" has been used throughout history as a tool of assimilation or subjugation of the enemy, minority, or slave populations." The document containing the charges alleged that many of the women victims of rapes and gang-rapes contracted HIV, and became pregnant as a result of these rapes.122 These acts of forcible impregnation, as distinct from the rapes that preceded them, were not captured in the charges.123 However, in the sentencing decision, the Trial Chamber regarded the unwanted pregnancies as an aggravating factor of rape.124 As the Courts first case to include a conviction for rape, this sentencing decision set an important precedent for future cases. Oriya Kinyarwanda This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.' As Oosterveld explains, when we label conduct as a crime, this can authoritatively transform a legally unacknowledged experience into an acknowledged wrong requiring legal redress.147 There are additional expressive benefits to defining these acts as crimes under international law, specifically: it signals that these acts offend the values of the international community as a whole; and it positions these acts as comparably grave to acts which are expressly recognized in instruments of international criminal law.148 From that perspective, it is positive to note that some of the acts on Askins list could potentially be prosecuted under international criminal law, without offending the principle of legality.149, Consider forced impregnation, a common form of reproductive violence in peacetime and in war. However, several states pushed back against this proposal because they feared that the crime of enforced pregnancy (as it was then called) might be used to challenge restrictions on abortion under domestic law or to entrench a broader right to reproductive self-determination under international law.93 Some states also argued that this crime would be superfluous because rape was already a crime under international law, and forced/enforced pregnancy was already (in their view) best understood as an aggravating factor of rape.94 Evidently, these states did not consider that the acts of forcibly making and keeping a woman pregnant are distinct from the act of forced penetration, which is the actus reus of rape.95 Nor do they appear to have put much weight on the principle of fair labelling, which calls for clear distinctions between all types of offences, so that they may be classified, defined, and labelled in order to reflect fairly the nature and degree of seriousness of the crime.96. Persian The second act of reproductive violence charged in the RuSHA case was hampering reproduction of enemy nationals. Count One of the indictment, regarding crimes against humanity, alleged that the defendants carried out various acts aimed at the destruction of foreign nations and ethnic groups, with the ultimate aim of strengthen[ing] the German nation and the so-called Aryan race at the expense of such other nations and groups.38 Of the nine acts charged under this heading, two focused on the use of reproductive violence.39. 91 C.K. Against this backdrop, feminist groups united to create the Women's Caucus for Gender Justice in the ICC ("Women's Caucus"). ICC Office of the Prosecutor, Policy Paper on Sexual and Gender-Based Crimes, June 2014, available online at https://www.icc-cpi.int/iccdocs/otp/OTP-Policy-Paper-on-Sexual-and-Gender-Based-CrimesJune-2014.pdf (visited 12 October 2017); ICTR Office of the Prosecutor, Best Practices Manual for the Investigation and Prosecution of Sexual Violence Crimes in Post-Conflict Regions, 30 January 2014, available online at http://w.unictr.org/sites/unictr.org/files/legal-library/140130_prosecution_of_sexual_violence.pdf (visited 12 October 2017). The Rome Statute Explanatory Memorandum, which defines the jurisdiction of the International Criminal Court, recognises rape, sexual slavery, forced prostitution, and forced pregnancy as crimes against humanity if part of a widespread or systematic practice. Swahili 34 The indictment also described experiments involving freezing and poisoning people, forcing them to drink seawater, and infecting them with diseases. (PT-2000-1-T), Women's International War Crimes Tribunal on Japan's Military Sexual Slavery, 4 December 2001 (Womens Tribunal Oral Judgment); Judgment on the Common Indictment and the Application for Restitution and Reparation, Hirohito et al. The author notes that prior to the Statute, rape and forced pregnancy were considered crimes that violated honour; post-Statute, these crimes are framed in light of the harm done to the victim's . 2 Arts 7(1)(g), 8(2)(b)(xxii) and 8(2)(e)(vi) ICCSt. Serbian Other inhumane . 98 Steains, supra note 92, at 366 (original emphasis). See Copelon, supra note 16. These groundbreaking provisions have provided a new language to describe and prosecute these heinous crimes.. In this Article, I will examine the potential difficulties associated with prosecuting forced pregnancy before the ICC. Not only is this the first case in any international criminal court to include charges of forced pregnancy; it is also one of the only cases in which reproductive violence outside the context of genocide or ethnic cleansing has been understood as a crime under international law. 164 Womens Tribunal Written Judgment, supra note 54, 406412. . This view continued to enjoy support during the negotiations for the Rome Statute, as the following section explains. The establishment of the ICTY in 1993 marked the start of a new era in the enforcement of international criminal law. Portuguese Ntagandas case expanded the category of victims of sexual slavery to include child soldiers. For Permissions, please email: journals.permissions@oup.com. Charges against him related to attacks on civilian populations in four camps for internally displaced people in northern Uganda between 2002 and 2005 during the vicious two-decade war between the LRA and the Ugandan army. The Ongwen case, which commenced trial in the International Criminal Court in December 2016, is a step forward in this regard. Forced impregnation was also widespread in the conflict that prompted the Security Council to establish the ICTR in 1994. . Ibid., at 402403. The purpose of these experiments was to develop a method of sterilization which would be suitable for sterilizing millions of people with a minimum of time and effort. In February 2021, nearly 20 years after the Rome Statute's entry into force, the International Criminal Court (ICC) secured its first conviction for forced pregnancy as a war crime and a crime against humanity in the case against Lord's Resistance Army (LRA) commander Dominic Ongwen. Thus far, none have been brought to justice. Rome Statute of the International Criminal Court. In response to the Appeals Chamber's order,1 we respectfully seek leave to file amicus curiae observations on the Rome Statute's definition of 'forced pregnancy', noting that this is the Appeals Chamber's first opportunity to interpret this crime. Bulgarian ESTABLISHMENT OF THE COURT Article 1 The Court An International Criminal Court ("the Court") is hereby established. Nevertheless, it was not until the mass rapes in Bosnia and Rwanda caught the attention of feminist legal scholars that forced pregnancy began to capture the public consciousness. For all of these reasons, the Ongwen case has the potential to significantly develop the ICCs jurisprudence on reproductive violence. See Arts 67 ICCSt. Koenig and K.D. The author thanks Dr Philippa Webb, Laurel Baig, and the anonymous reviewer for their comments on an earlier draft. Prosecutors and judges could be more emphatic when describing this conduct, to ensure that significance of the pregnancy is clear in the trial narrative, even if the legal framework does not regard this as a relevant factor. (f) "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. The indictment alleged that as a part of the gigantic programme of strengthening Germany while weakening, and ultimately destroying, enemy nations, measures were taken to hamper and impede the reproduction of enemy nationals.45 Initially, these measures took the form of restrictions on marriages between certain segments of the population, in order to reduce the birth rate among enemy nationals and thereby gradually bring about the destruction of the entire national group.46 However, upon realizing that enemy nationals were still having children outside of marriage, further measures were taken to prevent births, including forcibly sterilizing foreign workers, implementing a ruthless but skilful propaganda campaign aimed at dissuading them from producing children on German soil, and the inconspicuous distribution of contraceptives among farm workers of alien blood.47 As with the charge of encouraging and compelling abortions, the tribunal found that this charge was made out. The ICC Statute is the first international criminal legal instrument to recognize a separate crime of forced pregnancy, both as a crime against humanity and a war crime. There are particular challenges to prosecuting forced pregnancy as a crime against humanity and war crime. 111 Judgment pursuant to Art. Lee (ed. Is it possible to make sense of "forced pregnancy" without in some sense recognizing a women's fundamental right to terminate her pregnancy? Armenian I will also address the claim that the ICC Statute does not go far enough - that forced pregnancy is genocide. 92 See Boon, supra note 5, at 656; de Brouwer, supra note 1, at 144; B. Bedont and K. Hall-Martinez, Ending Impunity for Gender Crimes Under the International Criminal Court, 6 Brown Journal of World Affairs (1999) 65, at 7374; C. Steains, Gender Issues, in R.S. Guarani Khmer In Bosnia, particularly, commentators have alleged that Serbs had a systematic plan to impregnate Croatian and Muslim women and force them to bear Chetnik (i.e., Serb) babies. 132 Transcript, Ongwen supra note 128, at 48, line 25 to 49, line 2; at 49, lines 1415; at 49, line 22 to 50, line 1. Building on this progress, the final section of this article considers the possibilities for further developing the jurisprudence on reproductive violence, and reflects critically on the limitations of international criminal law in this regard. 99 For example, the delegate for Lebanon argued that [i]n view of reports on crimes committed in Bosnia and Herzegovina it might be better to refer to forcible pregnancies the purpose of which was to change the identity of a population group. The United Nations (UN) Security Council created the tribunal in response to reports of widespread and flagrant violations of international humanitarian law in the former Yugoslavia, including mass killings, massive, organized and systematic detention and rape of women, and the continuance of the practice of ethnic cleansing.65 Both sexual and reproductive violence were endemic in this conflict. 163, Vessels of Reproduction: Forced Pregnancy and the ICC, Milan Markovic, Texas A&M University School of LawFollow, Michigan State Journal of International Law. The Author (2017). 108 D.M. 74 of the Statute, Lubanga (ICC-01/04-01/06-2842), Trial Chamber I, 14 March 2014, 630. 62 Copelon, supra note 3, at 221-223; Dolgopol and Paranjape, supra note 54, at 1617; Womens Tribunal Written Judgment, supra note 54, 4. 136 Art. The gravity of these harms, as well as the prevalence of reproductive violence in conflict situations, suggest that it is fitting subject matter for prosecution in international criminal courts.10 However, like many forms of violence that impact primarily on women and girls, reproductive violence has historically received little attention in international criminal law.11 Unlike the issue of sexual violence, for example, it has attracted little analysis in generalist academic texts,12 policies and manuals produced by international prosecutors,13 or the decisions of international criminal courts.14 To the extent that reproductive violence has been addressed in international criminal law at all, the focus has generally been on the impact on the group to which the victim belongs. Ibid., at 401. rights, the International Criminal Court (ICC) has criminalized forced pregnancy. Sinhalese Thai 30(1) ICCSt. For example, it seems that the experience in Nazi Germany was the main reference point in the negotiations for the crime of forced sterilization,91 and the reported attempts to force Bosnian Muslim women to bear Serbian babies was the main catalyst for the proposed crime of forced pregnancy.92 The negotiating history of the latter crime is complex, and is worth considering in more depth. 29 International Military Tribunal: Judgment and Sentence, 41 American Journal of International Law (1947) 172, at 247. 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. However, there is no such requirement under customary international law, or in the ICC Statute, for crimes against humanity and genocide. Western Sahara: Long-term prisoners await justice, Italy: Authorities must urgently allow rescued people to disembark in Catania, Egypt: Arrests over calls for protests during COP27 expose reality ofhuman rights crisis, COP27: Accounts of climate crisis victims underscore urgency of action, Qatar: Infantino must tackle human rights issues if world is to focus on the football. 48 R. Lemkin, Axis Rule in Occupied Europe (Carnegie Endowment for International Peace, Division of International Law, 1944). See Art. Catherine MacKinnon railed against a legal system that made states lack of protection for women internationally protected. 66 Annex II: Report on the Situation of Human Rights in the Territory of the Former Yugoslavia Submitted by Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, Pursuant to Commission Resolution 1992/S-1/1 of 14 August 1992, UN Doc. 106 Indeed, Steains recalls that for states and NGOs who wanted to see forced pregnancy recognized in the Rome Statute, an important point to emphasize was that the purpose of this crime was not to interfere in the abortion debate. See also Transcript, Ongwen (ICC-02/04-01/15-T-21-Red2-ENG), Pre-Trial Chamber II, 22 January 2016, 47, line 4; 48, lines 89. NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window. Albanian "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. Rome Conference Official Records, Vol. > Rome Statute of the International Criminal Court PART 1. Reproductive violence, as distinct from the related issue of sexual violence, is yet to be truly surfaced in international criminal law. Forced pregnancy qualifies as both a crime against humanity and a war crime under the ICC statute. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.. Ongwens experience as a former child soldier, having been forcibly abducted on his way to school at the age of ten by the LRA under the supreme command of Joseph Kony was a central theme in his defence. Lithuanian humanity in the Rome Statute of the International Criminal Court.9 Unlike rape, the prosecution of forced pregnancy as genocide is unlikely in Bangladesh: for both theoretical and practical reasons, the Tribunal may not be able to prove that the Pakistani army used forced pregnancy to "destroy" the target group. Turkmen However, other forms of reproductive violence may be impossible to prosecute under the existing legal framework, because they could not be attributed to the accused. It also explores the bargaining process and divisive debates that surrounded the proposals to include and subsequently define rape and forced pregnancy. There are particular challenges to prosecuting forced pregnancy as a crime against humanity and war crime. 130 Transcript, Ongwen (ICC-02/04-01/15-T-20-Red-ENG), Pre-Trial Chamber II, 21 January 2016, 14, lines 1415. Amnesty International has prepared this commentary on the crime of forced pregnancy as defined in the ICC Statute as part of its on-going work to promote sexual and reproductive rights and effective remedies for victims/survivors. Askin,'International Criminal Law and the International Criminal Court Statute: Crimes Against Women', . The third notable point relates to the knowledge element of the crime. Ido Certain other serious violations of international humanitarian law, such as unjustifiable delay in the Askin and D.M. Latvian . Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Application Instituting Proceedings of 20 March 1993, 5455; Final Report of the Commission of Experts Established Pursuant to Security Council. 7(2)(f) ICCSt. Amharic 107 L. Chappell, Womens Rights and Religious Opposition: The Politics of Gender at the International Criminal Court, in Y. Abu-Laban (ed. Rape and Forced Pregnancy under the ICC Statute: Human Dignity, Autonomy, and Consent, Georgetown Institute for Women, Peace and Security Homepage, Beijing+25: The Way Forward for Gender Equality, U.S. Women, Peace, and Security Index 2020, Diversity, Equity & Inclusion in Higher Education, 1412 36th street, N.W., washington d.c. 20057. Abstract: Forced pregnancy and forcible impregnation are contested terms in relation to genocidal rape. Published by Oxford University Press. 123 Ibid. Croatian This avoids one of the potential difficulties for the prosecution, namely proving that the perpetrator knew that the victim was pregnant, and that this pregnancy was the result of force.136 In a case where there is evidence that the accused impregnated the victim personally, this knowledge requirement is relatively easy to prove. , 19 June 1996, 9.3, 9.13 others have noted, reproductive violence at the so-called stations. 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Il Sirente ) 183, at 368 ; Cottier and Mzee, supra 54 Incidents of reproductive violence other than by prosecuting it as a weapon of war before Some time charged in the Trial Chambers findings in this regard 3 2011. 2005, 393, 570, 914 ( 1993 UN Report ) of rehabilitation as well as and! Of confinement would have to prevent the victim by committing or ordering an act that is intended to that. 138 Ongwen Pre-Trial Brief, supra note 5, at 109 committing or ordering an act of reproductive. American Journal of International Law ( 1947 ) 172, at 667, 1 July, 27 July 1946, at 135 ; Nuremberg Trial Proceedings Vol his personal slaves wives Enjoy support during the second act of a sexual nature or impact on reproductive violence is not generally to. 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