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Can the ICC prosecute forced contraception?

A recent report by Rukmini Callimachi of the New York Times, on the enforcement of birth control by fighters of Islamic State to prevent Yazidi women and girls held as sex slaves from becoming pregnant, once again underscored the broad range of sexual and reproductive violence committed against women and girls in conflict. From an international law perspective, it also challenges existing understandings not only of the ways in which women and girls are specifically targeted, but of how their reproductive capacities are explicitly used as tools or instruments of conflict. As an international criminal lawyer, a question that immediately popped into my mind reading this was: how would we prosecute these acts? What charges would we bring against an individual should they ever face trial before the ICC? Does international criminal law, as we know it, have the tools to capture this harm, and how can it address such explicit reproductive violence?

For the purposes of this blog post, I distinguish reproductive violence in conflict from sexual violence for its clear attack at, or use of, (women’s) reproductive capacities. Nonetheless, it is important to underscore that all forms of sexual violence can have serious and long-lasting reproductive health consequences, and as such could be classified as reproductive violence as well. The distinction is therefore an arbitrary one, but one I am making here in order to examine the capacity of international criminal law as it stands to specifically capture and address reproductive violence such as forced contraception.

Reproductive violence in conflict: negative and positive targeting

The axiomatic example of reproductive violence in conflict is perhaps the Nazi policy of eugenics: between 70,000 and 350,000 people were forcibly sterilised in order to prevent them from having children and to ensure the purity of the Aryan race. Such instances can be classified as ‘negative’ targeting, for it explicitly involved depriving someone of his or her biological reproductive capacity.

There are also examples of reproduction being ‘positively’ targeted, i.e. where it is explicitly used as an instrument of conflict. For instance in the infamous “rape camps” in the former Yugoslavia, women’s reproductive capacity was specifically targeted and used as a tool of ethnic cleansing. Serb forces separated the Muslim men and women, and detained the women and girls in schools, restaurants, sports halls, or other large buildings, where they were repeatedly raped. Although there are no reliable statistics, the numbers may be as high as 60,000. Many of the women became pregnant as a result. They were often kept in the detention centres until it was too late for an abortion. One medical study found that 43% of women had become pregnant, and estimates about the number of children born out of rape range from several hundreds to several thousands.

Another example of the use of reproduction during times of conflict is Colombia, where several guerrilla groups, including the FARC, reportedly imposed forced family planning policies within their ranks, which included (forced) contraception. Women who became pregnant were forced to abort “so as not to lose her as a fighter”. In these instances, the allegedly forced contraception methods were to consolidate and maintain women’s roles as combatants. The FARC, however, while acknowledging that contraception was mandatory for both men and women “because the conditions of war determine so”, stated that abortion was not considered a method of contraception, and that when abortion did happen, it was not forced, underscoring the rights of female combatants to decide about their bodies.

Accountability for reproductive violence?

Colombia has recently initiated a case regarding the alleged forced abortions by guerrilla groups. In December 2015, Colombia requested the extradition of a FARC medic from Spain, for allegations that he carried out at least 150 forced abortions on female guerrilla fighters in the Choco and Antioquia provinces. However, the case does not appear to include charges around the alleged measures of forced contraception.

In addition, at an international level, reproductive violence has received only limited attention. Whereas the Nazi policy of eugenics remained largely unaddressed in the (limited) accountability efforts after the Second World War, the UN ad hoc tribunal for the former Yugoslavia (ICTY) prosecuted a series of cases that have become known as the ‘rape camp cases’. The Foča camp case constituted the first time in international law that a case was brought only for sexual violence crimes. The case also importantly established rape not only as a violation of the laws and customs of war, but as a crime against humanity. However, from a reproductive violence perspective, the ICTY’s recognition remained limited. Restricted by a Statute that only criminalised rape, it did not specifically charge the reproductive elements of the crimes perpetrated.

Following the initial jurisprudence from the ICTY and its sister-court the UN ad hoc tribunal for Rwanda (ICTR), in the late 1990s, negotiations took place on the establishment of a permanent international criminal court. An important (and contested) element during those negotiations was the codification of sexual and gender-based violence, such as that adjudicated in the Foča camp case. The product of these negotiations, the Rome Statute, criminalises not only rape, but also sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, gender-based persecution, trafficking, and other forms of sexual violence as war crimes, crimes against humanity and, in some circumstances, acts of genocide. This was a major advancement in international criminal law at the time.

While the Rome Statute codified the most expansive list of sexual and gender-based crimes in international criminal law, it remains incomplete. For instance, it is not immediately clear how (if at all) the specific reproductive violence exemplified by forced contraception could be prosecuted under the Rome Statute.

How to prosecute forced contraception at the ICC?

The New York Times article indicates that forced contraception was used as a means by which rape of Yazidi women and girls was ‘enabled’ for ISIS fighters. As the article explains, while at least one woman spoke about having been forced to have an abortion “in order to make her available for sex”, a gynaecologist who has treated many Yazidi women and girls who escaped ISIS, indicates that there are few signs of abortions. The extremely low pregnancy rate suggests that contraception was used extensively, which the stories of the women to whom Rukmini Callimachi spoke confirms. But can the ICC specifically prosecute such acts of forced contraception?

One important difficulty in charging anyone for the crimes against Yazidi women and girls in Iraq is one of jurisdiction. As a “membership” court whereby states have it sign and ratify the Statute to allow the Court to exercise its jurisdiction over crimes committed on their territory or by their nationals, in principle, the ICC does not have jurisdiction in this instance. Iraq is not a State Party. The only exception would be if nationals of a State Party who are members of ISIS commit these crimes (even if they commit those crimes in Iraq), or if the UN Security Council refers the situation on Iraqi territory to the ICC. The first remains unclear, and the second has not happened. But, let’s assume for a moment that the ICC could (hypothetically) exercise jurisdiction over ISIS fighters. How would we charge this forced use of contraception? How would we capture this specific gendered harm?

Forced contraception could of course be taken into account as contextual factors for the crime of rape as a war crime or crime against humanity. This would, however, limit the expressive nature of the charges, and might negatively impact possibilities of specifically repairing that harm during reparations proceedings. In addition, the principle of fair labelling may also justify a specific charge.

Unlike Colombian law, which specifically criminalises forced abortions (article 10 of Law 1719 adopted in 2014), the Rome Statute does not specifically criminalise reproductive violence beyond forced pregnancy and enforced sterilisation as either a war crime or crime against humanity. The latter means the deprivation of a person’s biological reproductive capacity without their genuine consent. On the face of it, this might cover forcing Yazidi women and girls to take contraception (sometimes by multiple means). However, the Rome Statute’s Elements of the Crimes in a footnote provide that enforced sterilisation “is not intended to include birth-control measures which have a non-permanent effect in practice”. This would thus preclude charging forced contraception as enforced sterilisation.

Another likely candidate could be charging it as genocide “by imposing measures intended to prevent births”. Quite clearly, forced contraception is a means of imposing measures to prevent births. However, strong evidence would need to be submitted that the acts were committed with specific genocidal intent, i.e. with “intent to destroy, in whole or in part, a national, ethnical, racial or religious groups, as such”.

Another possibility to consider would be a charge of other forms of sexual violence as either a war crime or a crime against humanity. Under the Rome Statute, the definition of other forms of sexual violence is:

“The perpetrator committed acts of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent.”

Classifying forced contraception as an “other form of sexual violence” under the Rome Statute thus depends on what determines whether an act is of a sexual nature. The women and girls were forced to take contraception in order for them to remain available for sex. As the article describes, “the injunction against raping a pregnant slave is functionally the only protection [from rape] for the captured women”. Suspending their reproductive capacity was thus a critical component of the conditions that enable rape (i.e. an act of sexual nature) to take place. As such, if we conceptualise the rationales of the specific act of forced contraception as the ‘sexual nature’ part of the definition, forced contraception could reasonably be charged as other forms of sexual violence.

However, judges at the ICC have previously ruled (paras 265-266) that penile amputation – in effect, depriving men of their biological reproductive capacity – did not constitute acts of a sexual nature (note: in that case, the acts were not charged as enforced sterilisation by the Prosecution, but as other forms of sexual violence). While that decision has been heavily criticised, it does underscore that there is no clear understanding (yet) as to what “of a sexual nature” means under the Rome Statute.

The most likely (successful) charge, therefore, seems to be “other inhumane acts” as a crime against humanity under article 7(1)(k). Under this same article, the Office of the Prosecutor has charged Dominic Ongwen with forced marriage, a crime also not specifically provided for in the Rome Statute. This catchall provision could thus become an important feature in international criminal law to respond to and address new and emerging forms of violence against women in conflict not currently captured by the law. That reproductive violence, such as forced abortion, is specifically criminalised in at least some national jurisdictions (e.g. Colombia) may make judges at the international level more comfortable accepting reproductive violence as a specific crime also at an international level. However, unless and until the ICC acquires jurisdiction over the crimes committed by ISIS, this discussion on the prosecution of forced contraception of Yazidi women and girls is one we can only have in the abstract.

Update 14/03/2016, 17:56: It appears discussions are going on in Colombia as to how to charge forced contraception by the FARC (in addition to the forced abortions). In the absence of a crime of forced contraception in Colombian law, prosecutors might charge these acts as a form of cruel or inhumane treatment. See comment by Daniela Kravetz on a shorter version of this blogpost at IntlLawGrrls.

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