The ICC’s First ‘Forced Pregnancy’ Case in Historical Perspective

Abstract

Reproductive violence, as distinct from the related issue of sexual violence, is yet to be truly ‘surfaced’ in international criminal law. Yet, this kind of violence has long been a feature of war, and is repugnant to the values that international criminal law protects. The Ongwen case, which commenced trial in the International Criminal Court in December 2016, is a step forward in this regard. 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. This article situates this landmark case is its historical contex, and raises some broader concerns about the limited response to reproductive violence in the development and enforcement of international criminal law. Based on an analysis of the law and practice of past and present international criminal courts, it shows that accountability for conflict-related reproductive violence has been patchy at best, and that there has been little recognition of the harms that such violence causes to individual victims, as distinct from the groups to which they ‘belong’. The article concludes by sketching out some steps to remedy these omissions, building on the progress made in the Ongwen case. Underlying the article is a view that reproductive autonomy is a distinct value from sexual autonomy, and that, where possible, conduct which offends this value should be punished as a separate crime.

The Bill Elimination on Sexual Violence: Importance for Indonesian Women

“…Also, when the husband is using contraception so that the woman cannot adjust the distance of her pregnancy. This pregnancy coercion differs from a forced pregnancy in the context of crimes against humanity in the Rome Statute, namely the situation of unlawfully restricting a woman to become pregnant by force, makes the ethnic composition of a population or for violating other international laws (Grey, 2017).…”

Prosecutor v. Dominic Ongwen

“…12 The ICC is the first international court with jurisdiction to prosecute "forced pregnancy" as an international crime. 13 As such, the Court did not have any jurisprudential precedent on which to rely. The crime of forced pregnancy involves more than causing pregnancy through rape; the Rome Statute requires not only the confinement and forcible impregnation of a woman but also that the perpetrator intended either to affect the ethnic composition of a population or to use the forced impregnation to carry out other grave violations of international law.…”

the Colombian Truth Commission’s work on reproductive violence: gendered victimhood and reproductive autonomy

“…Ciara Laverty and Dieneke de Vos (2021, p. 618) note that, in international human rights law, the ‘reproductive’ has historically been masked by the ‘sexual’. For instance, definitions of the crimes of forced pregnancy and forced sterilisation in the Rome Statute were drafted in a way that connected sexual violence to ethnic cleansing, rather than acknowledging women’s autonomy (Grey, 2017). It was not until 2016, during the ICC pre-trial stage in the Dominic Ongwen case, that forced pregnancy was referred to outside of the context of genocide.…”

“…6 Recent interdisciplinary efforts have attempted to gain recognition for conflict-related reproductive violence within the field of transitional justice as a distinct form of violence that causes specific harms to victims, which differ in their various forms from sexual harms (Cocomá Ricaurte and Laguna Trujillo, 2020; Laverty and de Vos, 2021;Giraldo Gartner, 2022). It has been highlighted that reproductive violence is a gender-based form of violence, often directed at cisgender women and girls due to their childbearing capacity, increasing the risk of secondary harms such as a death during childbirth or abortion (Grey, 2017). Additionally, due to patriarchal gender roles, the social impacts of, for instance, raising a child born of conflict-related sexual violence or being unable to bear children due to forced sterilisation could have significant long-term consequences for women's lives, increasing their marginalisation through social stigma and economic dependence (Baines and Oliveira, 2021).…”

“…The growing transnational movement that argues for conflict-related reproductive violence to be addressed independently of conflict-related sexual violence within transitional justice endeavours (see Cocomá Ricaurte and Laguna Trujillo, 2020; Laverty and de Vos, 2021; Perez Vazquez, 2022) has broadly understood reproductive violence as ‘violence which involves a violation of reproductive autonomy or which is directed at people because of their reproductive capacity’ (Grey, 2017, p. 906). Building on this work, reproductive violence was granted a distinct place within the Commission’s accounts.…”