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war crime forced pregnancy
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war crime forced pregnancy
Duncker & Humblot, Berlin, Bitti G (2015) Article 21 and the Hierarchy of Sources of Law Before the ICC. They were infected and impregnated by rape or forced sex with male prisoners. UNTAET/REG/2000/15, 6 June 2000 (Statute of the Special Panels), Section 5.1(g) (crimes against humanity), Section 6.1(b)(xxii) and (e)(vi) (war crimes). The LRA terrorized northern Uganda, and parts of South Sudan, the Central African Republic, and the Democratic Republic of the Congo for nearly two decades, reaching a height in the 90s and early 2000s. Akayesu 1998, above n 298, para 507; ICTY, Prosecutor v Radovan Karadi and Ratko Mladi, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, IT-95-5-R61 and IT-95-18-R61, paras 64, 94. Copelon 1994, p 247. See also this chapter, Sect. In the case against Jean-Pierre Bemba Gombo, an Expert Report recommended the inclusion of children born of rape specifically as victims of the crime of rape and thus as beneficiaries of reparations, see ICC, Prosecutor v Jean-Pierre Bemba Gombo, Expert Report, 20 November 2017, ICC-01/05-01/08-3575-Anx-Corr2-Red, paras 48, 102; see also Dowds 2019, pp 231232. Ongwen was, on February 4 of 61 of the 70 charges laid against him, including the ICCs first-ever successful prosecution for . See also Kuschnik 2009, pp 355356, though with reference to both pregnancy and childbirth. See e.g. A/AC.249/1997/WG.1/CRP.9, Preparatory Committee on the Establishment of an International Court (1997g) Decisions Taken by the Preparatory Committee at its Session Held From 1 to 12 December 1997, UN Doc. 1, Sect. Maputo Protocol, above n 440, Article 14(2)(c). Askin 1997, pp 398399, 402403. ICC Elements of Crimes, Article 7(1)(g)-1, no. See Sanni and Ukomadu, Nigerian Police Free 19 Women and Girls From Lagos Baby Factory: Statement, Reuters, 30 September 2019, https://www.reuters.com/article/us-nigeria-captives-babies/nigerian-police-free-19-women-and-girls-from-lagos-baby-factory-statement-idUSKBN1WF205 (accessed 24 October 2020). 22A (A/51/22), Preparatory Committee on the Establishment of an International Court (1997a) Draft Consolidated Text: Crimes Against Humanity, UN Doc. See also Schwarz 2019, p 262. A/CONF.183/C.1/L.44, United Nations Economic and Social Council (1988) Report of the Special Rapporteur, Mr. P. Kooijmans, Pursuant to Commission on Human Rights Resolution 1987/29, UN Doc. Routledge, London, Global Justice Center (2018) Submission to the International Law Commission: The Need to Integrate a Gender-Perspective Into the Draft Convention on Crimes Against Humanity. Beck, Munich, DeLaet D (2007) Theorizing Justice for War Babies. The captors impregnate women and hold them captive until it is too late for abortion. United Nations Committee on Economic, Social and Cultural Rights 2001, para 55; United Nations Committee on Economic, Social and Cultural Rights 2004, para 53; United Nations Committee on Economic, Social and Cultural Rights 2008, para 46; United Nations Committee on Economic, Social and Cultural Rights 2014, para 22 (not limited to rape). %PDF-1.7 % This article is republished from The Conversation under a Creative Commons license. Kumarian Press, Bloomfield, pp 2139, De Brouwer A-MLM (2005) Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR. Delegations in favour of the crime included: Australia, Austria, Azerbaijan, Bosnia-Herzegovina, Burundi, Canada, Croatia, Estonia, India, Mexico, The Netherlands, Nigeria, Rwanda, Slovenia, Sudan, Turkey, and the United States; see Bedont and Hall-Martinez 1999, p 74, footnote 43. ICTY, Prosecutor v Dragoljub Kunarac, Radomir Kova and Zoran Vukovi, Appeals Judgment, 12 June 2002, IT-96-23-A and IT-96-23/1-A (Kunarac et al. ICC Elements of Crimes, Article 8(2)(a)(i), no. See especially Carpenter 2000a; Wei 2001, pp 136137. Hastings Womens Law Journal 5:171241, Grewal K (2012) The Protection of Sexual Autonomy Under International Criminal Law: The International Criminal Court and the Challenge of Defining Rape. C.H. The American Journal of International Law 92:331339, Hall CK, Powderly J, Hayes N (2016) Article 7. See also Global Justice Center 2018, pp 78. There are particular challenges to prosecuting forced pregnancy as a crime against humanity and war crime. 4, Sect. Nomos, Baden-Baden, Werle G (2018) 7 Vlkerstrafgesetzbuch. PCNICC/1999/WGEC/DP.39, Preparatory Commission for the International Criminal Court (2000a) Comments by Colombia on the Elements of Crimes in Article 7 in Document PCNICC/1999/L.5/Rev.1/Add.2, UN Doc. See also Cottier and Mzee 2016, marginal no 725; Schwarz 2019, p 264. United Nations Commission on Human Rights 1998b, para 13, very similarly United Nations Commission on Human Rights 1997b, para 13. In: Cassese A (ed) The Oxford Companion to International Criminal Justice. These girls were closely monitored and considered property, according to a report by CAP International, an organization that fights sexual exploitation, and Watye Ki Gen, an organization of female survivors working to protect and empower children born of the war. See Bedont and Hall-Martinez 1999, pp 6667; Durham 2001, pp 826833; Oosterveld 1999, pp 3839; Pace and Schense 2000, p 719. Oxford University Press, Oxford, pp 411443, Boon K (2000) Rape and Forced Pregnancy Under the ICC Statute: Human Dignity, Autonomy, and Consent. Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, opened for signature 27 June 2014 (Malabo Protocol), Article 28C(1)(g) and (h) (crimes against humanity), Article 28D(b)(xxiii) and (e)(vi) (war crimes). Malabo Protocol, above n 500, Article 28C(2)(f). document.getElementById("ak_js_1").setAttribute("value",(new Date()).getTime()); Virtual reality is used in war-like and war contexts already -- and it could gamify violence even more if we don't pay attention. E.g. Altmetric, Part of the International Criminal Justice Series book series (ICJS,volume 29). Intersentia, Antwerp/Tilburg, De Vos D (2016) Can the ICC Prosecute Forced Contraception? 2. Asser Press, The Hague, eBook Packages: Law and CriminologyLaw and Criminology (R0). Statute of the Special Panels, above n 498, Section 5.2(e). See also Cottier and Mzee 2016, marginal no 727. Transnational Publishers, Ardsley, p 93, Rubio-Marn R (2009) The Gender of Reparations in Transitional Societies. 2; Article 8(2)(e)(vi)-1, no. 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. See Boon 2000, p 660; Vest and Sutter 2014, marginal nos 553554. 3.4.1. A/AC.249/1998/DP.13, Preparatory Committee on the Establishment of an International Court (1998b) Report, UN Doc. United Nations Committee on the Elimination of Discrimination Against Women 2017b, para 29(c)(i). See generally Adams 2013, pp 313314; Cottier and Mzee 2016, marginal no 674; Dowds 2020, pp 9193; Schomburg and Peterson 2007, p 133; Schwarz 2019, pp 181184. Michigan State Journal of International Law 16:439458, Meseke S (2004) Der Tatbestand der Verbrechen gegen die Menschlichkeit nach dem Rmischen Statut des Internationalen Strafgerichtshofes: Eine vlkerstrafrechtliche Analyse. Woe Is Me! Unit 731 performed experiments that had caused the deaths of many female prisoners. Laverty 2018. In: Joecks W, Miebach K (eds) Mnchener Kommentar zum Strafgesetzbuch: Band 8: Nebenstrafrecht III, Vlkerstrafgesetzbuch, 3rd edn. Forced pregnancy is a crime against humanity. CAT/C/POL/CO/5-6, United Nations Committee Against Torture (2016) Concluding Observations on the Philippines, UN Doc. A/AC.249/1997/L.9/Rev.1, Preparatory Committee on the Establishment of an International Court (1998a) Proposal Submitted by the Holy See, UN Doc. E/CN.4/1988/17, United Nations General Assembly (1989) Resolution 44/39, UN Doc. See also Werle and Jeberger 2020, marginal no 1077, stating that the core of the crime is the violation of reproductive, not sexual, autonomy. Torkel Opsahl Academic Publisher, Beijing, pp 1157, deGuzman MM (2016) Article 21. See also Durham and OByrne 2010, p 44; Toy-Cronin 2010, p 585. This assertion was also cited by the Office of the Prosecutor in its Pre-Trial Brief, see Ongwen Prosecutions Pre-Trial Brief 2016, above n 5, para 512, footnote 1339. S/2019/280, Vest H, Sutter U (2014) Art. Ongwen 2016, above n 1, paras 98100; Ongwen 2021, paras 27262727. The American Journal of International Law 93:2243, Askin KD (1997) War Crimes Against Women: Prosecution in International War Crimes Tribunals. Large numbers of women and girls were abducted to serve as bush wives of senior members of Ongwens Sinia Brigade. Violent crime as old as the Bible: Boko Haram uses rape as a weapon of war. Forced birth is a crime against humanity. As specified in ICC Elements of Crimes, Article 7(1)(g)-1, no. CCPR/C/GC/36, United Nations Human Rights Council (2015) Violations and Abuses Committed by Boko Haram and the Impact on Human Rights in the Countries Affected: Report of the United Nations High Commissioner for Human Rights, UN Doc. 210 (entered into force 1 August 2014), Article 36. Duncker & Humblot, Berlin, La Haye E (2000) Article 8(2)(b)(xxii)-Rape, Sexual Slavery, Enforced Prostitution, Forced Pregnancy, Enforced Sterilization, and Sexual Violence. 4. Women were infected with syphilis, and some were also forced to become pregnant. 30, which lists forced impregnation along with forced termination of pregnancy and forced sterilization as forms of conflict-related gender-based violence which amount to human rights violations, see United Nations Committee on the Elimination of Discrimination Against Women 2013b, para 34. Accessed 24 October 2020, Odio-Benito E (2005) Sexual Violence as a War Crime. United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court 1998a, p 160. 0000015654 00000 n In this regard, though not specifically in the context of the crime of forced pregnancy, see the Prosecutors opening statement in 2016, above n 42, p 35: There is a whole category of other victims: the children born in captivity resulting from these forced marriages, who sometimes face hostility and taunts as a result of their parentage. A/AC.249/1997/WG.1/DP.12, Preparatory Committee on the Establishment of an International Court (1997f) War Crimes, UN Doc. See Halley 2008, pp 89, 104; Womens Caucus for Gender Justice 1999. American Bar Association, Washington D.C. Arsanjani MJ (1999) The Rome Statute of the International Criminal Court. United Nations Committee on the Elimination of Discrimination Against Women 2017b, para 18. 0000006505 00000 n See Bedont and Hall-Martinez 1999, p 73; Glasius 2006, p 88. In: Carpenter RC (ed) Born of War: Protecting Children of Sexual Violence Survivors in Conflict Zones. Dominic Ongwen, a senior commander in the Lord's Resistance Army, whose fugitive leader Kony is one of the world's most-wanted war crimes suspects, enters the court room of the International Court . Preparatory Committee on the Establishment of an International Court 1998a. In: Fischer H, Kre C, Lder SR (eds) International and National Prosecution of Crimes Under International Law: Current Developments. Ongwen 2021, above n 1, paras 27232724; Ongwen 2016, above n 1, para 99. In: Triffterer O, Ambos K (eds) Rome Statute of the International Criminal Court: A Commentary, 3rd edn. The trial of a former child soldier may change the future of justice for war crimes. Criminal Law Forum 21:331359, Daniel-Wrabetz J (2007) Children Born of War Rape in Bosnia-Herzegovina and the Convention on the Rights of the Child. 25579/05; European Court of Human Rights, R.R. 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. See ICC Elements of Crimes, Article 7(1)(g)-1, no. EJIL:Talk! International Review of the Red Cross 92:3152, Engle K (2005) Feminism and its (Dis)Contents: Criminalizing Wartime Rape in Bosnia and Herzegovina. See also Global Justice Center 2018, pp 510, demanding that the deferential clause in Article 7(2)(f), sentence 2 of the ICC Statute should not be reproduced in the envisaged Convention on Crimes Against Humanity. Accessed 24 October 2020, International Commission of Jurists (1998) Definition of Crimes: ICJ Brief no. However, since the ICC Appeals Chamber overturned Bembas conviction in 2018 (ICC, Prosecutor v Jean-Pierre Bemba Gombo, Appeals Judgment, 8 June 2018, ICC-01/05-01/08 A), the reparations proceedings had to be terminated, ICC, Prosecutor v Jean-Pierre Bemba Gombo, Final Decision on the Reparations Proceedings, 3 August 2018, ICC-01/05-01/08. According to Askin, the Womens Caucus delegates were divided on whether the term forced or enforced pregnancy should be used, see Askin 1999a, p 46, footnote 43. United Nations Committee on the Rights of Persons With Disabilities and United Nations Committee on the Elimination of Discrimination Against Women 2018. Laverty 2018. Is Abortion A Crime? See also Boon 2000, p 666; Kuschnik 2009, p 257; Schwarz 2019, p 263. Ongwen 2016, above n 1, para 100; confirmed in Ongwen 2021, above n 1, para 2728. Accessed 24 October 2020, Deutscher Bundestag (2002) Bundestags-Drucksache 14/8524. Green et al. ICC, Prosecutor v Jean-Pierre Bemba Gombo, Judgment, 21 March 2016, ICC-01/05-01/08, para 105: The Chamber notes that the victims lack of consent is not a legal element of the crime of rape under the Statute. Similarly ICC, Prosecutor v Germain Katanga, Judgment, 7 March 2014, ICC-01/04-01/07, para 965: The Chamber notes that, save the very specific situation of a person whose incapacity was tak[en] advantage of, the Elements of Crimes do not refer to the victims lack of consent, and therefore this need not be proven. See also Schwarz 2019, pp 213217. 10 (A/74/10), Chap. endobj Accessed 24 October 2020, Womens Caucus for Gender Justice (1999) Recommendations and Commentary for the Elements Annex: Submitted to the July 26 August 13 1999 Preparatory Commission for the International Criminal Court. E/C.12/1/Add.66, United Nations Committee on Economic, Social and Cultural Rights (2004) Concluding Observations on Chile, UN Doc. An interview with a Holy See representative after the Rome Conference illustrates why such a definition was deemed necessary. Oxford University Press, Oxford, Gropengieer H, Kreicker H (2003) Grundlagen der Strafverfolgung vlkerrechtlicher Verbrechen: Deutschland. See also Schomburg and Peterson 2007, pp 138140. 22/2009: Views Adopted by the Committee at its Fiftieth Session, 3 to 21 October 2011, UN Doc. ICC Statute, above n 131, preamble para 3. United Nations Security Council 2019, para 4. International Law Commission 2019, Article 2(1)(g). Preparatory Committee on the Establishment of an International Court 1996a, para 98. For example, in 1993, the organization Equality Now presented these findings from a board member sent to Bosnia-Herzegovina to . The fact that rape can result in pregnancy is not only confirmed by scientists and by the lived experience of women, but it is well-known that rape and forced pregnancy are used as conscious and deliberate tools of war. See also Cottier and Mzee 2016, marginal no 721; Drake 2012, p 607; Grey 2017, p 919; Grey 2019, p 108; Koenig and Askin 2000, p 14; Schwarz 2019, p 258. See also Chap. The survivors of the LRAs sexual and gender-based war crimes have had difficulty reintegrating into society, facing social stigma for their abduction and sexual abuse, as well as resentment for their forced participation in carrying out violence against others. International law now explicitly outlaws these acts, and the Rome Statute of the International Criminal Court includes both rape and forced impregnation . Oxford University Press, New York, Chinkin C (1994) Rape and Sexual Abuse of Women in International Law. Human Rights Quarterly 20:348378, Satzger H (2002) Das neue Vlkerstrafgesetzbuch Eine kritische Wrdigung. 14/15 American Army Nurses And Pregnancy. A Look at Forced Pregnancy Under the Rome Statute. Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also. CAT/C/KEN/CO/2, United Nations Committee Against Torture (2013b) Concluding Observations on Poland, UN Doc. Texas Journal of Women and the Law 18:61101, Koenig DM, Askin KD (2000) International Criminal Law and the International Criminal Court Statute: Crimes Against Women. The United States is a signatory to this treaty on human rights and the Constitution defines the Constitution, then ratified treaties, then federal statutes as the supreme law of the land. Notre Dame Law Review 70:845891, Toy-Cronin BA (2010) What is Forced Marriage? It was the first international treaty to establish conflict-related [sexual and gender-based violence] as crimes against humanity, war crimes and, in some instances, genocide. In: Triffterer O, Ambos K (eds) Rome Statute of the International Criminal Court: A Commentary, 3rd edn. Kluwer Law International, The Hague/London, pp 79126, Wei N (2001) Vergewaltigung und erzwungene Mutterschaft als Verbrechen gegen die Menschlichkeit, Kriegsverbrechen und Genozid: Wie beurteilen sich diese Vorflle aus der Perspektive der Kinder, die gewaltsam gezeugt wurden? Duncker & Humblot, Berlin, African Commission on Human and Peoples Rights (2014) General Comment no. 22 (2016) on the Right to Sexual and Reproductive Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), UN Doc. 0000002717 00000 n In this context, see also Ambos 2015, developing a combined Rechtsgut-harm theory of international criminal law. Oxford Journal of Legal Studies 33:293315, Ambos K (2013b) Treatise on International Criminal Law, vol 2: The Crimes and Sentencing. See also Chinkin 2009, p 77; Odio-Benito 2005, pp 165166. The American Journal of International Law 93:4357, Robinson D (2000) Article 7(1)(g)-Crime Against Humanity of Rape, Sexual Slavery, Enforced Prostitution, Forced Pregnancy, Enforced Sterilization, or Any Other Form of Sexual Violence of Comparable Gravity. Vest and Sutter 2014, marginal no 579: [f]rdern der eigenen ethnischen Gruppe oder aber das Zurckdrngen derjenigen des Opfers. In 2019, Congolese warlord Bosco Ntaganda was sentenced to 30 years in prison after being convicted of 18 counts of murder, rape, sexual slavery and using child soldiers. See also Boon 2000, p 661; Markovic 2007, p 442. <> Thus far, none have been brought to justice. 1, Sect. In: Lee RS (ed) The International Criminal Court, vol 2: Elements of Crimes and Rules of Procedure and Evidence. See Cottier and Mzee 2016, marginal no 726; Schwarz 2019, p 259. Preparatory Commission for the International Criminal Court 1999d. In: Rubio-Marn R (ed) The Gender of Reparations: Unsettling Sexual Hierarchies While Redressing Human Rights Violations. See Werle and Jeberger 2020, marginal nos 6466. Association Internationale de Droit Pnal et al. 416 0 obj E/CN.4/RES/1998/52, United Nations Commission on Human Rights (1998b) Resolution 1998/76 on Rights of the Child, UN Doc. Accessed 24 October 2020, International Law Commission (2019) Report of the International Law Commission: Seventy-First Session: 29 April7 June and 8 July9 August 2019, General Assembly Official Records, Seventy-Fourth Session, Supplement no. E/CN.4/RES/1997/78, United Nations Commission on Human Rights (1998a) Resolution 1998/52 on Elimination of Violence Against Women, UN Doc. Anyone you share the following link with will be able to read this content: Sorry, a shareable link is not currently available for this article. 2001, above n 306, para 460: where such sexual penetration occurs without the consent of the victim. In: Durham H, Gurd T (eds) Listening to the Silences: Women and War. See also Koenig and Askin 2000, p 14. Kunarac et al. DePaul University, Chicago, Bedont B (1999) Gender-Specific Provisions in the Statute of the International Criminal Court. Today, the international human rights community has not only recognized rape as a form of torture, it has recognized rape and forced impregnation as war crimes and as crimes against humanity. 38 (A/49/38), United Nations Committee on the Elimination of Discrimination Against Women (1999) General Recommendation no. ICC Elements of Crimes, Article 8(2)(a)(vii)-2, no. Forced pregnancy is defined by the International Criminal Court (ICC) as the "unlawful confinement of a woman who has been forcibly impregnated, with the intent of affecting the ethnic. PubMedGoogle Scholar, Altunjan, T. (2021). ICTY, Prosecutor v Radislav Krsti, Judgment, 2 August 2001, IT-98-33-T, para 541; see also Werle and Jeberger 2020, marginal no 202. 8 (2) (b) (xxii)-4 War crime of forced pregnancy 20 8 (2) (b) (xxii)-5 War crime of enforced sterilization 20 8 (2) (b) (xxii)-6 War crime of sexual violence 20 8 (2) (b) (xxiii) War crime of using protected persons as shields 20 8 (2) (b) (xxiv) War crime of attacking objects or persons using the distinctive emblems
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