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.