Can the ICC prosecute forced contraception?

A recent New York Times article on the enforcement of contraception 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. As I wrote elsewhere in a longer version of this post, a question that immediately popped into my mind reading this was: does international criminal law, as we know it, have the tools to capture this harm, and how can it address such reproductive violence?

Although Iraq is not a State Party to the Rome Statute, let’s assume for a moment that the International Criminal Court (ICC) could (hypothetically) exercise jurisdiction over crimes committed by ISIS fighters in Iraq. How could we charge this forced use of contraception?

The Rome Statute criminalises a broad range of sexual and gender-based crimes, but only two specifically capture reproductive harm (although all forms of sexual violence can have serious, long-lasting reproductive consequences): forced pregnancy, and enforced sterilisation. Enforced sterilisation as either a war crime or crime against humanity 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. However, the Elements of the Crimes specify that enforced sterilisation “is not intended to include birth-control measures which have a non-permanent effect in practice”.

Although it could potentially be charged it as genocide “by imposing measures intended to prevent births”, 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”.

Then what about a charge of other forms of sexual violence? Under the Rome Statute, other forms of sexual violence constitute: “… [the commission of] acts of a sexual nature against one or more persons or caus[ing] such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion…”. Classifying forced contraception as “other forms of sexual violence” 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”. Suspending their reproductive capacity was thus a critical component of the conditions that enabled rape (i.e. an act of a sexual nature) to take place. As such, if we conceptualise the rationale for the specific act of forced contraception as the ‘sexual nature’ part of the definition, forced contraception could be charged as “other forms of sexual violence”.

However, judges at the ICC have previously ruled 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 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. However, unless and until the ICC acquires jurisdiction over the crimes committed by ISIS, this discussion on the prosecution of forced contraception for Yazidi women and girls is one we can only have in the abstract.

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7 thoughts on “Can the ICC prosecute forced contraception?

  1. Thanks for the post , if a criminal act, bears sexual nature, has to do, not only with preventing or depriving or forcing, but has to do with the mere fact, that it had to do with it , regardless of the outcome and the nature of the criminal act.

    And so, the freedom of speech for example, has to do, in the layman eyes, with: permitting a person or a group to express themselves, yet, forcing them to express something, has also to do with freedom of speech .

    Apple recently , has conducted legal fight against the FBI , for the unlock of the California shooter .The FBI , wants to force Apple , to create program , for federal purposes , so the Iphone could be unlocked ( see link ) . In such case , Apple claims , that forcing it to create a software , is a mere violation of first amendment .

    The same , for forcing a physician , to describe the fetus to a pregnant woman ( see link ) , had to do with freedom of speech .

    Why is that ?? well , depriving or forcing , is the subjective intent of the lawmaker , but :
    From objective intent perspective ( which has greater significance ) we deal here with the right of a person on his body and soul . It doesn’t matter the nature of the act, or its consequences, but:

    The idea , that you force whatever act , has to do with sexuality , on a person , without his free will or deliberate consent , is sufficient for it , to be regarded as :

    Other forms of sexual violence , whatever the act or result .

    Link to the motion of Apple :

    https://cdn2.vox-cdn.com/uploads/chorus_asset/file/6106157/apple-motion-to-vacate.0.pdf

    Link to north Carolina ruling :

    http://www.ca4.uscourts.gov/Opinions/Published/141150.P.pdf

    Thanks

  2. Dear Dieneke, Thank you for your interesting blog. The issue of how to charge forced contraception has also come up recently in the Colombian context, as FARC forces have used forced contraception and forced abortions as forms of sexual violence within ranks against FARC female combatants and girl soldiers. The Colombian Criminal code, like the ICC statute, does not include forced contraception as a specific crime, so there is a lot of discussion at the moment on how to charge these crimes in a possible post-conflict scenario. One option is for prosecutors to charge forced contraception as a form of cruel or inhumane treatment, but it is unlikely that any indictments will be issued until after the peace negotiations are concluded. Just a development worth keeping on the radar.

    • Hi Daniela, Thanks for your comment! I was aware that there were some developments in Colombia in relation to forced abortions, but I didn’t know the charges might also relate to forced contraception. That’s very interesting, thanks for highlighting that! I will certainly keep an eye out for any developments in that regard.

  3. Pingback: Can the ICC prosecute forced contraception? - Dieneke De Vos

  4. My comment here , not been uploaded . Please check it out . If no trace of it , has been found by you , please let me know , I shall give it another shot , and upload it . Thanks

    • Hi El roam, my apologies, I was having some technical difficulties with approving your previous comment, but hopefully that is resolved now, and it should be visible too. Thanks very much for your comment! I agree with you that forced contraception could also be charged as an other form of sexual violence. What I was referring to in relation to the charge of “other forms for sexual violence” and the indeterminacy of what constitutes “of a sexual nature” for the purposes of the Rome Statute was the Pre-Trial Chamber’s decisions in the Kenyatta case. There, the Pre-Trial Chamber held that penile amputation and forced circumcision committed against Luo men during the post-election violence in Kenya in 2007-2008, charged by the Prosecutor as ‘other forms of sexual violence’, did not constitute sexual violence, and recharacterised the charges as ‘other inhumane acts’ (it did so in both the decision on the arrest warrant, and the confirmation of charges decision). The Chamber held, without really substantiating its findings in much detail, that these acts “cannot be considered acts of a ‘sexual nature’”. Hence, these decisions appear to be grounded in a particular understanding of what it means for an act to be ‘sexual’, which seems to be that is has a sexual intent. Forced circumcision and penile amputation for the Pre-Trial Chamber did not have any such sexual intent and hence couldn’t be charged as other forms of sexual violence. Other Chambers of course do not have to follow this decision, should they be faced with a similar question, and even if they do follow the same reasoning, they may conclude that forced contraception does have that sexual intent. But what the decisions illustrate is that at a minimum the issue of what “of a sexual nature” means at the ICC is not necessarily settled (indeed, it was clear in this case, that for the Prosecution these acts of forced circumcision and penile amputation were of a sexual nature).

      • Thanks for your comment Dieneke . That is what I meant in my comment , to suggest , that it is wrong to reach such conclusion as had been reached by the pre trial chamber . Once has to do with sexuality , let alone forced and criminal , no matter what , must fall within that scope !! And all , due to the objective and ultimate purpose : The right of a person , upon his body , and his sexuality whatsoever so as such . Thanks

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