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. Beck, Munich, Council of Europe Commissioner for Human Rights (2017) Womens Sexual and Reproductive Health and Rights in Europe: Issue Paper. United Nations Human Rights Committee 2012a, para 15; United Nations Human Rights Committee 2012b, para 13; United Nations Human Rights Committee 2018a, para 15(a). See also Grey 2017, pp 921922; Koenig and Askin 2000, p 15; Werle and Jeberger 2020, marginal no 1078. Besides the Holy See, the following delegations opposed the inclusion of forced pregnancy: Bahrain, Colombia, Costa Rica, Ecuador, Egypt, Iran, Iraq, Ireland, Kuwait, Libya, Malta, Nicaragua, Oman, Paraguay, Poland, Philippines, Russia, San Marino, Saudi Arabia, United Arab Emirates, and Venezuela; see Bedont and Hall-Martinez 1999, p 74, footnote 42. On the principle of legality generally, see Werle and Jeberger 2020, marginal nos 135140. DePaul University, Chicago, Bedont B (1999) Gender-Specific Provisions in the Statute of the International Criminal Court. C.H. Accessed 24 October 2020, United Nations Ad Hoc Committee on the Establishment of an International Criminal Court (1995b) Report, General Assembly Official Records, Fiftieth Session, Supplement no. See Glasius 2006, p 89; Graditzky 1999, p 205; Joseph 2008, p 83. Reproductive Violence and International Criminal Law pp 187270Cite as, 4 Forced pregnancy is a war crime punishable by the International Criminal Court. See Zulficar 19941995, p 1025. 10 (A/74/10), Chap. Cambridge University Press, Cambridge, Bassiouni MC, McCormick M (1996) Sexual Violence: An Invisible Weapon of War in the Former Yugoslavia. (German) Code of Crimes Against International Law, Section 7(1) no. 2001, above n 306, para 342, see also paras 583, 654. 2016, marginal no 57; Schomburg and Peterson 2007, pp 133136; Schwarz 2019, pp 184191; Werle and Jeberger 2020, marginal no 1069. See also Kuschnik 2009, pp 355356, though with reference to both pregnancy and childbirth. Human Rights Quarterly 20:348378, Satzger H (2002) Das neue Vlkerstrafgesetzbuch Eine kritische Wrdigung. https://legal-tools.org/en/doc/dd58b8/. 2016, marginal no 137; Vest and Sutter 2014, marginal no 558. Ongwen 2021, above n 1, para 2723; Ongwen 2016, above n 1, para 99. Preparatory Committee on the Establishment of an International Court 1997g. In: Durham H, Gurd T (eds) Listening to the Silences: Women and War. Oxford University Press, Oxford, pp 411443, Boon K (2000) Rape and Forced Pregnancy Under the ICC Statute: Human Dignity, Autonomy, and Consent. See also Hall and Stahn 2016, marginal no 50, pointing to the period of time as one element of a case-by-case assessment of severity. By rejecting non-essential cookies, Reddit may still use certain cookies to ensure the proper functionality of our platform. 2016, marginal no 56; MacKinnon 2006; Schomburg and Peterson 2007, p 132; Schwarz 2019, pp 176181. 4, Article 8(2)(c)(i), no. European Journal of International Law 5:326341, Chinkin C (2009) Gender-Related Violence and International Criminal Justice. PCNICC/1999/WGEC/DP.16, Preparatory Commission for the International Criminal Court (1999e) Proceedings of the Preparatory Commission at its Second Session (26 July 13 August 1999), UN Doc. Required fields *. Ambos 2013b, p 102; Hall et al. Arno Spitz GmbH, Berlin, pp 5993, Salzmann TA (1998) Rape Camps as a Means of Ethnic Cleansing: Religious, Cultural, and Ethical Responses to Rape Victims in the Former Yugoslavia. Cottier and Mzee 2016, marginal no 720. See Hall and Stahn 2016, marginal no 51. On the use of the term sexual autonomy, see Grewal 2012, pp 379380. See also Goldstein 1993, p 4, footnote 7. PCNICC/1999/WGEC/DP.36, Preparatory Commission for the International Criminal Court (1999h) Proposal Submitted by Bahrain, Iraq, Kuwait, Lebanon, the Libyan Arab Jamahiriya, Oman, Qatar, Saudi Arabia, the Sudan, the Syrian Arab Republic and United Arab Emirates Concerning the Elements of Crimes Against Humanity, UN Doc. ICC, Prosecutor v Ongwen, Transcript, 7 December 2016, ICC-02/04-01/15-T-27-ENG ET WT, p 14. William & Mary Journal of Women and the Law 18:595623, Drumbl MA (2007) Atrocity, Punishment, and International Law. 2001), paras 436460. EJIL:Talk! A/AC.249/1997/WG.1/DP.12, Preparatory Committee on the Establishment of an International Court (1997f) War Crimes, UN Doc. United Nations Committee on the Elimination of Discrimination Against Women 2017b, para 29(c)(i). 2016, marginal no 140; Schwarz 2019, p 263; Soh 2006, p 328. Ongwen will reportedly appeal his conviction; if the conviction is upheld, the seven women who shared their stories with the court in an effort to obtain justice for themselves and others may receive financial, educational, and housing reparations out of the ICCs Trust Fund for Victims. Preparatory Committee on the Establishment of an International Court 1996a, para 98. Ongwen's trial, the first of an LRA leader, was also the first in which international prosecutors charged forced pregnancy as a standalone crime, as a war crime and a crime against humanity, and . 1994, pp 185189; Rimmer 2010, p 109; Women in the Law Project 1994, pp 95, 97. See e.g. See Glasius 2006, pp 8284; Grey 2019, pp 104105; Pace and Schense 2000, p 719. Ongwen 2021, above n 1, para 2722, referring to the principle of fair labelling. See Boon 2000, p 661; Buehler 2002, p 163; Cottier and Mzee 2016, marginal no 725; Paul 2008, p 190. 2001, above n 306, para 460: where such sexual penetration occurs without the consent of the victim. Preparatory Commission for the International Criminal Court 2000a. 1994, p 237: [Rape with an intent to impregnate] must be recognized as a distinct or aggravated offense against the lives, integrity and dignity of women as humans; Salzmann 1998, p 367: a gap that requires an amendment. See also Werle and Jeberger 2020, marginal no 1046. But see also Kuschnik 2009, p 358, who seems to argue that general knowledge that unprotected sexual intercourse may lead to a pregnancy could be sufficient. The US is a signatory to the United Nations Charter Against. United Nations Committee on the Elimination of Discrimination Against Women 2017b, para 18. ICTY, Prosecutor v Radislav Krsti, Judgment, 2 August 2001, IT-98-33-T, para 541; see also Werle and Jeberger 2020, marginal no 202. S/1994/674, Cook RJ, Cusack S (2011) Gender Stereotyping: Transnational Legal Perspectives. In Part II, I will address the different contexts in which forced pregnancy can potentially be prosecuted. See also Boon 2000, p 661; Markovic 2007, p 442. See also this chapter, Sect. In response to this statement, the United States withdrew funds from the Commission, see Castaldi, Partial U.S. Sanctions on Inter-American Commission on Human Rights, Oxford Human Rights Hub, 2 August 2019, https://ohrh.law.ox.ac.uk/partial-u-s-sanctions-on-inter-american-commission-on-human-rights/ (accessed 24 October 2020). A/CONF.183/C.1/L.10, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (1998c) Article 5 Crimes Within the Jurisdiction of the Court: Crimes Against Humanity Recommendations of the Coordinator, UN Doc. See also Grey 2017, pp 921922; Koenig and Askin 2000, p 15. See Schabas 2016, p 629; Werle and Jeberger 2020, marginal no 540. Ongwen 2021, above n 1, para 2127; Ongwen 2016, above n 1, para 100. See Cottier and Mzee 2016, marginal no 724. International Law Forum Du Droit International 1:3841, Oosterveld V (2011) Forced Marriage and the Special Court for Sierra Leone: Legal Advances and Conceptual Difficulties. Werle and Jeberger 2020, marginal no 515. In: Triffterer O, Ambos K (eds) Rome Statute of the International Criminal Court: A Commentary, 3rd edn. 1.4.3. See generally Gardam and Jarvis 2001, pp 6568. Preparatory Commission for the International Criminal Court 1999b. ICC, Prosecutor v Ongwen, Transcript, 6 December 2016, ICC-02/04-01/15-T-26-ENG ET WT, p 33. Dike/Nomos, Zrich/Baden-Baden, von Hebel H, Robinson D (1999) Crimes Within the Jurisdiction of the Court. Preparatory Commission for the International Criminal Court 1999g. For an overview, see Global Justice Center 2018, p 7. Oosterveld 2011, pp 138139. On the subjective requirements regarding normative circumstantial elements, see generally Werle and Jeberger 2020, marginal no 552. Footnote 1The charges of forced pregnancy (both as a war crime and a crime against humanity) referred to two victim-witnesses, identified as P-0101 and P-0214, who were abducted and forced by Ongwento become his "wives". 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). United Nations Ad Hoc Committee on the Establishment of an International Criminal Court 1995b. Nomos, Baden-Baden, Werle G (2018) 7 Vlkerstrafgesetzbuch. PCNICC/1999/L.4/Rev.1, Preparatory Commission for the International Criminal Court (1999f) Comments by Colombia on Document PCNICC/1999/WGEC/RT.6 Proposed by the Coordinator, UN Doc. See also Rubio-Marn 2009, p 81: [V]iolations of womens reproductive rights are not typically included or conceptualized as separate violations, even though they represent harms that are unique and distinct from those that result from other forms of sexual violence.. Forced Pregnancy as a Crime Against Humanity and a War Crime. Preparatory Commission for the International Criminal Court 1999a, p 6. 2019, p 251; Schwarz 2019, p 257; Soh 2006, p 329. Parliamentary Assembly of the Council of Europe 2008, para 7.2. Cottier and Mzee 2016, marginal no 720. 1. See also Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict, UN Special Representative of the Secretary-General on Sexual Violence in Conflict Zainab Hawa Bangura Condemns the Use of Sexual Violence as a Tactic of War and Terror by Boko Haram, 26 May 2015, https://www.un.org/sexualviolenceinconflict/press-release/un-special-representative-of-the-secretary-general-on-sexual-violence-in-conflict-zainab-hawa-bangura-condemns-the-use-of-sexual-violence-as-a-tactic-of-war-and-terror-by-boko-haram/ (accessed 24 October 2020), referring to forced impregnation. Read the original article. A/RES/50/46, United Nations General Assembly (1998) Resolution 52/160, UN Doc. The report found a majority of women journalists have faced online violence, made worse by tech companies failure to respond effectively. Extraordinary Chambers in the Courts of Cambodia, Prosecutor v Nuon Chea, Ieng Sary, Khieu Samphan and Ieng Thirith, Closing Order, 15 September 2010, 002/19-09-2007-ECCC-OCIJ (Nuon et al. See La Haye 2000, pp 194195; Rckert and Witschel 2001, p 85. In a striking exaggeration, he stated: If that term, forced pregnancy, had been left to stand alone, without being defined further, it would have been extremely dangerous. Cambridge University Press, Cambridge, pp 63120, Rubio-Marn R (2012) Reparations for Conflict-Related Sexual and Reproductive Violence: A Decalogue. See generally Adamietz 2011, pp 2947: Transgender describes persons whose gender identity differs from the sex assigned at birth; intersex describes a variety of conditions in which a persons anatomy does not fit within the male/female binary. 1994, pp 186189. See also Vest and Sutter 2014, marginal no 555. See Schwarz 2019, p 265. The extent to which war crimes in non-international armed conflicts should be included at all was, however, still disputed. An interview with a Holy See representative after the Rome Conference illustrates why such a definition was deemed necessary. See also Ongwen 2016, above n 1, para 99 (required that the perpetrator knows that the woman is pregnant and that she has been made pregnant forcibly); Schwarz 2019, pp 263264. The franchise model keeps getting stronger -- and this could arguably ruin cinema as a form of art and expression. The Brown Journal of World Affairs 6(1):6585, Berro Pizzarossa L (2018) Here to Stay: The Evolution of Sexual and Reproductive Health and Rights in International Human Rights Law. E/CN.4/RES/1997/44, United Nations Commission on Human Rights (1997b) Resolution 1997/78 on Rights of the Child, UN Doc. Prosecution for war crimes requires the existence of an armed conflict and that the perpetrator was aware of the conflict (ICC, Elements of Crimes, 8). 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. Oxford University Press, Oxford, Ambos K (2015) The Overall Function of International Criminal Law: Striking the Right Balance Between the Rechtsgut and the Harm Principles. 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. 38 (A/54/38/Rev.1), United Nations Committee on the Elimination of Discrimination Against Women (2011) Communication no. There is a developing body of case law at the ICC concerning crimes of sexual and gender-based violence (SGBV). iccwomen.org/wigjdraft1/Archives/oldWCGJ/icc/iccpc/071999pc/elements.html. See Bedont and Hall-Martinez 1999, p 74. New Zealand Journal of Public and International Law 4:311337, Steains C (1999) Gender Issues. Ongwen 2016, above n 1, paras 98100; Ongwen 2021, paras 27262727. Both women were then compelled to perform domestic duties and frequently subjected to rapes. See Neenan 2018. 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. In: Werle G, Vormbaum M (eds) The African Criminal Court. See also Grey 2017, p 927. A Look at Forced Pregnancy Under the Rome Statute. See Cottier and Mzee 2016, marginal no 726; De Brouwer 2005, p 145; Schwarz 2019, p 261. These groundbreaking provisions have provided a new language to describe and prosecute these heinous crimes.. In the context of forced marriage, see Bunting and Ikhimiukor 2018; Oosterveld 2011, pp 139141. https://www.ejiltalk.org/what-lies-beneath-the-turn-to-values-in-international-criminal-legal-discourse/. 2; Article 8(2)(b)(xxii)-1, no. Il Sirenze, Ripa di Fagnano Alto, pp 183210, Bedont B, Hall-Martinez K (1999) Ending Impunity for Gender Crimes Under the International Criminal Court. See also Ongwen 2021, above n 1, para 2721. CCPR/C/DOM/CO/5, United Nations Human Rights Committee (2012b) Concluding Observations on the Philippines, UN Doc. Forced pregnancy is only recognized by the ICC as a crime against humanity in specific contexts, including when it's part of a "widespread or systematic attack" against civilians, and as a. CAT/C/POL/CO/5-6, United Nations Committee Against Torture (2016) Concluding Observations on the Philippines, UN Doc. C.H. Ibid., Platform for Action para 11, see also para 135. 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. See also La Haye 2000, p 195; Rckert and Witschel 2001, p 85. On the establishment of the ICC, see generally Ambos 2018, 6 marginal nos 2223; Schabas 2016, pp 1227. 0000015838 00000 n The American Journal of International Law 101:121140, Schwarz A (2019) Das vlkerrechtliche Sexualstrafrecht: Sexualisierte und geschlechtsbezogene Gewalt vor dem Internationalen Strafgerichtshof. Preparatory Commission for the International Criminal Court 2000b. See also this chapter, Sect. https://legal-tools.org/doc/f09f54. In: Lee RS (ed) The International Criminal Court, vol 2: Elements of Crimes and Rules of Procedure and Evidence. TvSm[RdU1f:%ZOBLXboE'N7[Dq;nenZvb+[. See similarly Women in the Law Project 1994, p 97. See also the evidence reproduced in the trial judgment, Special Court for Sierra Leone, Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Judgment, 20 June 2007, SCSL-04-16-T, paras 10801081, 1091, 1097, 11131114, 1184. See Schwarz 2019, p 264; Vest and Sutter 2014, marginal no 576. 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. PCNICC/2000/WGEC/DP.4, Preparatory Commission for the International Criminal Court (2000c) Proceedings of the Preparatory Commission at its Fourth Session (1331 March 2000), Annex III: Elements of Crimes, UN Doc. Ongwens lawyers plan to appeal the decision on all the charges. The Womens Caucus for Gender Justice agreed with this proposal, see Womens Caucus for Gender Justice 1999. 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. 3.3.5. Similarly Grey 2017, p 925. See Chap. Criminal Law Forum 10:3359, Askin KD (1999b) Women and International Humanitarian Law. In: Triffterer O, Ambos K (eds) Rome Statute of the International Criminal Court: A Commentary, 3rd edn. 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. 0000002287 00000 n In: Reproductive Violence and International Criminal Law. According to Halley, this modification originated from a Womens Caucus proposal, see Halley 2008, p 89. United Nations Human Rights Council 2016, para 43. ; United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court 1998a, pp 148, 163 (Saudi Arabia), p 166 (Iran); Wilkins and Reynolds 2006, p 139. 416 0 obj forced pregnancy as genocide in Bangladesh. Beck, Munich, Hall CK, Stahn C (2016) Article 7. See also United Nations Committee on the Rights of Persons With Disabilities and United Nations Committee on the Elimination of Discrimination Against Women 2018. United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court 1998a, pp 148, 163. See Bitti 2015, pp 434436; Grover 2014, p 118. In: Askin KD, Koenig DM (eds) Women and International Human Rights Law, vol 1. 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). Opinio Juris. See generally Adams 2013, pp 312313; Dowds 2020, pp 8991; Hall et al. 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 Ambos 2013a, pp 304315; Laverty 2018. 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. PCNICC/2000/WGEC/DP.2, Preparatory Commission for the International Criminal Court (2000b) Comments by Colombia Regarding the Elements of Crimes of Article 8 (2) (b), 8 (2) (c) and 8 (2) (e) in Document PCNICC/1999/L.5/Rev.1/Add.2, UN Doc. McGill Law Journal 46:217240, Cottier M, Mzee S (2016) Article 8. The American University Law Review 46:793840, Rimmer SH (2010) Gender and Transitional Justice: The Women of East Timor. 22/2009: Views Adopted by the Committee at its Fiftieth Session, 3 to 21 October 2011, UN Doc. In: Jalloh CC (ed) The Sierra Leone Special Court and its Legacy: The Impact for Africa and International Criminal Law. 0000006505 00000 n Michigan Journal of Race & Law 8:503527, Soh SEJ (2006) Forced Pregnancy: Codification in the Rome Statute and its Prospect as Implicit Genocide. See United Nations Ad Hoc Committee on the Establishment of an International Criminal Court 1995a. Large numbers of women and girls were abducted to serve. As early as 2005, Human Rights Watch established that soldiers in Ugandas national army had raped, beaten, arbitrarily detained and killed civilians in camps. 6, see also Deutscher Bundestag 2002, p 21; Gropengieer and Kreicker 2003, p 131; Meseke 2004, p 290; Satzger 2002, pp 129130; Werle 2018, marginal no 90; Swiss Criminal Code, Article 264a(1)(g), see also Vest and Sutter 2014, marginal no 581.