Working women and evolving labor standards in U.S. and Canadian free trade agreements

My forthcoming article in the Comparative Labor Law & Policy Journal discusses and compares the evolution of labor standards in U.S. and Canadian free trade agreements (FTAs) since 2000.  It then assesses their usefulness as tools to improve IMG_0646working women’s rights.

With few exceptions, all U.S. and Canadian free trade agreements have included labor provisions since 1994.  They also contain procedures for members of the public to file petitions that trading partners have not met their labor obligations under FTAs.

After 2000, the governments of Canada and the U.S. both incorporated the 1998 ILO Declaration on Fundamental Principles and Rights at Work as the guiding standard for labor rights in free trade agreements.  The four core labor standards in the ILO Declaration are (1) abolition of child labor; (2) elimination of discrimination in the workplace and occupation; (3) elimination of all forms of forced or compulsory labor; and (4) freedom of association and the effective recognition of the right to collective bargaining.

My article examines the outcomes of a number of recent cases filed under the labor provisions of U.S. FTAs, including the U.S.-Bahrain FTA, U.S.-Peru FTA and the U.S.-Central America-Dominican Republic FTA (CAFTA-DR).   The article also compares civil society advocacy efforts in Canada and the U.S. related to the negotiation of free trade with Colombia and discusses the implementation of a Labor Rights Action Plan (LAP) between the U.S. and Colombia as a pre-condition for Colombia’s entrance into the U.S.-Colombia FTA.

A definite evolution is observed in the investigative methods, problem-solving techniques and types of remedies adopted in reports issued by the U.S. Department of Labor (USDOL) in response to public petitions filed under FTA labor provisions during the Obama Administration (2009-2016).  In addition to making fulfillment of certain labor standards commitments a pre-condition to formal entry of trade relations between U.S. and Colombia, USDOL (a) called on one trading partner to pass legislation prohibiting discrimination in the workplace (Bahrain); (b) worked with another trading partner to develop a method for denying export permits to companies that did not comply with labor court orders (Guatemala); and (c) timed the issuance of labor administration and/or elimination of child labor grants with the issuance of reports (Honduras, Dominican Republic).  USDOL also increased its capacity for addressing threats of violence against trade unionists in the territory of U.S. trade partners (Colombia).

Despite evidence of improvement in USDOL’s administration of labor petitions under FTAs since it first started receiving petitions in 1994, definitional shortcomings in U.S. FTA labor provisions weaken their utility as advocacy tools for workers as a whole and women in particular.

One problem is that only 75% of the ILO Declaration is incorporated into the definitions sections of the U.S.-Jordan FTA and CAFTA-DR.  Both agreements fail to specifically include equal pay for equal work for women and men and the elimination of workplace discrimination in the Definitions section for purposes of international dispute resolution.  This leads to textual uncertainty as to whether discrimination on the basis of sex or other grounds is covered.  As a result, gender-related claims in an omnibus petition filed about labor law and administration in Honduras were ignored in a 2015 USDOL report under the CAFTA-DR.  Ironically, comparison of the 2012 Honduras CAFTA-DR case with the 1997 Pregnancy Testing in Mexico case shows that the NAFTA has been a better advocacy tool for working women that the more modern CAFTA-DR.

Definitional shortcomings in post-NAFTA U.S. FTAs are not limited to incomplete incorporation of the 1998 ILO Declaration.  After 2000, U.S. FTA labor provisions limit the definition of “labor law” as applied to the United States to laws passed by the U.S. Congress.  This definition excludes all U.S. state labor laws, which cover compensation for workplace injuries, govern the time and manner of payment of wages, and guarantee trade union rights to state and local government employees.  My article shows how two 2012 reports released by the Government of Mexico about U.S. failure to comply with NAFTA labor obligations may have played a role in the U.S. decision to narrow the scope of the definition of U.S. labor law in FTAs.

In contrast, there is no such textual or definitional uncertainty in the labor provisions in post-NAFTA Canadian FTAs, which explicitly cover workplace discrimination and equal pay for women and men – as well as compensation for workplace injuries.  Canada currently has FTAs with labor provisions with Chile, Costa Rica, Peru, Colombia, Jordan, Panama, Honduras, South Korea and the European Union.  Canada also has Labor Cooperation MOUs with Brazil, Argentina and China.

The article shows how women’s rights advocates have creatively utilized FTA labor provisions as advocacy tools with mixed results  The most successful gender petitions focus solely on gender discrimination rather than burying gender claims in broader petitions.  Because of definitional shortcomings in U.S. FTAs, however, women’s rights advocates should consider filing labor petitions under Canadian FTAs in addition to or rather than U.S. FTAs.  Not only are the definitional provisions stronger, the petition procedures are very similar and Canada has stronger Equal Pay laws and culture.

Recently, Canada established itself as a leader on women’s issues by advocating for a gender chapter in the 2017 re-negotiation of NAFTA.  Mexico expressed support for the idea of a gender chapter, but observers opine that the U.S. would never agree to binding gender-related provisions in a renegotiated NAFTA – despite the fact that a non-binding 2012 U.S.-Mexico Memorandum of Understanding on Women’s Economic Empowerment is already in place.

As Mark Aspinwall rightfully pointed out in his August 2017 Forbes Op Ed, effective application of FTA labor and environmental provisions is heavily dependent on political will.  Even with strong political will backed by critical human and financial resources, the Obama administration’s free trade and labor agenda had some mis-steps and imperfect outcomes.  There is much work to be done to maintain the gains and momentum achieved.  Unfortunately, the current administration is already off to a bad start.  Congress has already called upon the Trump administration to ensure that U.S. trade partners Colombia, Dominican Republic, Guatemala, Honduras and Peru fulfill their commitments under ongoing labor action plans related to petitions filed under FTA labor provisions.  In addition to a lack of political will to address labor violations among trading partners, the current administration has not allocated sufficient human and financial resources to USDOL’s Bureau of International Labor Affairs to properly perform its duties.  In their September 19, 2017 letter to Trump adminstration officials, ranking Democratic members of the House and Senate called on USTR, USDOL and USDoS to fill five positions key to enforcement of FTA labor provisions.  Lack of political will and inadequate resource allocation risks slowing or stopping the evolution made by the last administration in the enforcement and application of labor provisions in free trade agreements.

On the Job! [Helton Fellowship]

On the Job! compiles interesting vacancy notices, as follows:
ASIL

 Applications are welcome from recent or current law graduates for the position of Helton Fellow.  The holder of this position receives funded contributions from ASIL members, interest groups, and private foundations to pursue field work and research on significant issues involving international law, human rights, humanitarian affairs, and related areas. Deadline is Monday, January 15, 2018; details here https://www.asil.org/about/helton-fellowship-program.

Lebanon and the Origins of International (Refugee) Law

I’ve spent most of these past years researching the situation of Syrian refugees in Lebanon, culminating in a series of recent articles which among others can be found here and here. Today, Lebanon hosts the highest number of refugees in the world in proportion to its population size of about six million. Many of these live in deep social and legal precarity, with an estimated 60 per cent of Syrian refugees living irregularly in the country and thus subject to extremely harsh and marginalized conditions.

From an international law perspective, however, Lebanon is a fascinating country. It takes pride in its contribution to some of the earliest international human rights instruments, including the participation of Charles Malik in the drafting of the Universal Declaration of Human Rights and his chairing of the UN Commission on Human Rights in 1951-1952.

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Challenges of Urban Warfare

Aleppo in Syria. Mosul in Iraq. Marawi in the Philippines. All cities now unfortunately synonymous with the destruction of war, and its attendant miseries visited on the populations inhabiting them. A new ICRC report, based on analysis of conflicts in Syria, Iraq and Yemen, has found a casualty rate five times higher in cities compared to other conflicts. It is estimated that by 2050, more than 60% of the global population will reside in cities.

The urban landscape makes conflict more complex, and particular concerns relating to the application of international humanitarian law (IHL) in cities are examined here. Protecting civilians, and distinguishing them from combatants is fraught. The use of explosive weapons destroys infrastructure necessary for survival. Restrictions on food and basic provisions create conditions that make existence difficult, forcing populations to leave, if able. Unexploded ordinances and snipers hamper safe exit. The ensuing mass displacement adversely impacts areas receiving besieged populations, often with scarce means to accommodate them.

IHL in urban contexts 

The fundamental rules of IHL regulating the conduct of hostilities are embodied in the Geneva Conventions and the Additional Protocols, as well as customary law. The central tenets – the principles of distinction, proportionality and precaution in attacks – regulate the conduct of hostilities for the protection of civilians in all contexts. A distinction is to be made between combatants and civilians, and between military objectives and civilian objects. Any military action must be proportionate to the intended aim.

The existence of an international armed conflict (IAC) or non-international armed conflict (NIAC) requires a complex case-by-case analysis. Increasingly there are concerns regarding the classification of situations, due to the invocation of terrorism and questions concerning the applicability of IHL. Here, the classification of conflict is not addressed, but only those facets of IHL pertaining to the protection of a city and its inhabitants are highlighted.

These basic principles apply in NIAC and IAC, with some differences in the elaboration of the legal provisions. These principles are also reflected in customary law, distinct from treaty law, and applicable to both types of conflict. However, it is the application of these principles to densely populated areas that is operationally complex.

Protection of civilians

Civilians are protected from attack under IHL. As long as an individual is not a member of the armed forces or armed group, she is considered a civilian. However, the distinction between civilian and combatant is eroded in case of “direct participation in hostilities” by the former (Art. 51(3), AP I, Art. 13(3) AP II and customary law Rule 6). The ICRC Interpretive Guidance on the notion of Direct Participation in Hostilities under International Humanitarian Law delineates three cumulative criteria for acts to amount to “direct participation”: first, there must be an adverse impact on military operations or activities; second, a direct causal link between the act and the harm caused; and third, the act must be designed to cause the threshold of harm. Preparatory acts and subsequent actions are considered “direct participation”. Protection ceases during such participation, and is reinstated upon cessation. However, it may still be difficult to distinguish between direct and indirect participation. In doubt, the individual must retain protection. Continue reading

African Women Judges and Gender Parity on the African Court on Human and Peoples’ Rights

At the recently ended 28th African Union (AU) Summit, held January 22-31 2017 in Addis Ababa, Ethiopia, the African Union has finally made good on its promise to promote gender parity on the African Court on Human and Peoples’ Rights (ACtHPR)! Two women judges were elected to fill the two remaining vacancies on the court, these are Justice Chafika Bensaoula of Algeria and Justice Tujilane Rose Chizumila of Malawi. This development brings the total number of women judges currently serving on the court to five out of a total of eleven judges. This development is a big victory for advocates of gender parity within the AU, as well as scholars and practitioners advocating for gender parity in international courts. The recent election is preceded by the 27th African Union Summit held in July 10-18 2016 in Kigali, Rwanda, during which there were four vacancies to be filled on the ACtHPR. At this meeting, the Assembly of Heads of State and Government of the African Union (AU) elected only two judges who were both women; Justice Ntyam Ondo Mengu from Cameroon and Justice  Marie Thérèse Mukamulisa from Rwanda. The postponement of the election to fill the two vacancies appears to have been a deliberate action on the part of the AU to make good on its gender parity promise by requiring states to nominate and elect female judges as provided for in Article 12(2) and Article 14(3) of the Protocol establishing the court. This brings the total number of women judges to have ever sat on the ACtHPR to eight, representing 34%, out of a total number of 23 judges since the court first got in session in 2006.

For the first time in the history of the court, there will be five women judges sitting concurrently on the eleven-member court. The election of Justice Bensaoula of Algeria is another major milestone as it marks the first time in the history of the court that a woman is represented from the Northern region of the continent. As Osai Ojigho has argued, increasing the number of women judges on the ACtHPR can be achieved if the vacancies are widely advertised, if nomination procedures at the domestic level are transparent and widely publicized, civil society involvement is encouraged, outstanding candidates are sought out and that at least one of three possible nominees is a woman. The recent elections have shown that where there is a will, there is always a way for gender parity. In the note verbale communications sent out to States during vacancies on the court, the Office of the Legal Counsel has consistently asked for the nomination of women. So, what changed this time around? It appears that in the last two elections, a punitive measure was applied whereby states that did not have women were disqualified to run. For scholars concerned with achieving gender egalitarian benches both at the domestic and international levels, the recent election of four women judges to the ACtHPR may provide some glimmers of hope and it is a hope that we need to actualize at other sub-regional courts on the continent.

As I have documented elsewhere, African women judges have, to date, accounted for the largest number of women judges from one geographic region to serve on the ICC. The fact that African women hold this record is indicative that women judges have the right qualifications to fill vacancies on courts at the regional and continental levels—thus the limited pool argument does not hold much sway. The patterns and history behind the growing number of African women judges in international courts, is discussed in the forthcoming volume, “African Women Judges on International Courts: Unveiled Narratives”, (Dawuni, Josephine and Kuenyehia, Akua  Routledge, 2017). As IntLawGrrl Nienke Grossman has suggested, the use of temporary mandatory quotas may be one strategy to increase the number of women on international courts. While temporary quotas may be a good way to expand access for qualified women judges, I do not ascribe to that strategy. As we have seen in the recent elections to the ACtHPR, enforcement of existing provisions for gender parity such as the application of measures to hold States to their obligations may be one strategy to achieve gender parity. It becomes the duty of States Parties to nominate the strongest female candidates. Nonetheless, women judges will also have to be intentional about gaining access to nomination processes and gatekeepers. Preliminary evidence on the record of women’s success at the domestic level in most jurisdictions across the continent as discussed in  Gender and the Judiciary in Africa: From obscurity to parity? strongly indicates that there is a big enough pool of qualified women from which to draw women nominees for international courts. We may also be missing some important factors when we focus only on the numbers. We should ask a couple of questions: first, whether female candidates know about these courts and, second, whether they are interested in positions on these courts? This is where the role of networking and awareness raising becomes crucial in programs such as open dialogues hosted by the Institute for African Women in Law, where former judges Justice Akua Kuenyehia and Justice Sophia Akuffo discussed their experiences on international courts.

Dawuni and Kang have documented the rise of  women judges to the upper echelons of judiciaries across Africa. At the international level, we have seen the record set at the ICC, with African women accounting for 33% of the total number of women (15 to be precise) to serve on the ICC bench. The Economic Community of West African States (ECOWAS) Court of Justice comes has had 29% women representation, the East African Court of Justice comes in at 16% and the African Court of Human and Peoples’ Rights has just moved from hovering around 18% to 45% as currently constituted. African women judges have also made their mark on ad hoc tribunals such as the ICTY, ICTR and SCSL. As the highest-ranking continental court, the ACtHPR has proven once again that where institutional mechanisms are enforced and opportunity structures exist, African women will always rise to the occasion. This is just the beginning and it is the hope that the sub-regional courts such as the ECOWAS Court of Justice and the East African Court of Justice will learn from these new developments. Now is the time to start working towards future elections at the sub-regional levels. Now is the time for Heads of States, civil society organizations and other agencies to nominate women for future elections on the ICC and other international courts and tribunals. Now is the time to sign the pledge on the Gqual Campaign!

 

La possibilité tangible de l’amorce d’une enquête relative aux crimes internationaux commis sur le territoire afghan

À l’aube de l’ouverture de la 15e session de l’Assemblée des États parties au Statut de Rome de la Cour pénale internationale (AÉP), la Procureure la Cour pénale internationale (CPI), Fatou Bensouda, a annoncé publiquement que l’examen préliminaire de son Bureau concernant la situation en Afghanistan pourrait déboucher de façon imminente sur l’ouverture d’une enquête relative aux allégations de crimes contre l’humanité et crimes de guerres qui auraient été commis par les Talibans, les services de sécurité afghans et le personnel des forces armées américaines dans le cadre du conflit armé opposant les forces progouvernementales et antigouvernementales.

Quelques jours plus tard, le Bureau du Procureur a publié le Rapport sur les enquêtes menées en 2016 en matière d’examen préliminaire (« Rapport 2016 ») dans lequel la Procureure Bensouda réitère que toutes les conditions requises pour ouvrir une enquête sont présentes et indique que « le Bureau [étant arrivé] au terme de son évaluation des facteurs énoncés aux alinéas a à c de l’article 53-1 du Statut, [il] s’apprête à décider, de façon imminente, de demander ou non à la Chambre préliminaire l’autorisation d’ouvrir une enquête sur la situation en République islamique d’Afghanistan à compter du 1er mai 2003 ».

Le premier Procureur de la CPI, Louis Moreno Ocampo, avait annoncé publiquement en 2007 l’ouverture d’un examen préliminaire en Afghanistan, qui a ratifié le Statut de Rome le 10 février 2003, donnant ainsi à la CPI une compétence sur les faits commis sur le territoire afghan ou par des ressortissants de ce pays à compter de 2003 pouvant constituer des crimes au sens de ce traité international.

Elle s’insérait alors dans le contexte du conflit en Afghanistan, amorcé dans la foulée des attaques terroristes du 11 septembre 2001, aux États-Unis. À la suite à ces attaques, une coalition de pays dirigée par les États-Unis a procédé à des frappes aériennes et à de multiples opérations terrestres en Afghanistan afin de déloger les Talibans, associés au réseau d’Al Qaeda. Ces opérations ont permis d’évincer les Talibans du pouvoir et de former un gouvernement provisoire en décembre 2001 sous les auspices de l’ONU, avant d’être remplacé en 2002 par un nouveau gouvernement afghan de transition. Les affrontements se sont néanmoins poursuivis et les Talibans et autres groupes armés opposés aux forces gouvernementales ainsi qu’à leurs alliés occidentaux ont regagné du terrain dans le sud et l’est du pays. Le conflit armé s’est par la suite intensifié et s’est étendu au nord et à l’ouest, alors qu’ont persisté de violents combats qui, entre 2007 et juin 2015, ont causé la mort de plus de 23 000 civils conformément aux chiffres révélés par la Mission d’assistance des Nations Unies en Afghanistan (MANUA)[1].

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Reflections on ‘The Gendered Imaginaries of Crisis in International Law’ Agora @ the 2016 ESIL Annual Conference, Riga, Latvia

With many thanks to Emily Jones, currently a PhD researcher at SOAS, University of London, who authored this reflection and, along with IntLawgrrls Gina Heathcote, Loveday Hodson, and Bérénice Schramm, as well as Troy Lavers, organized the Gendered Imaginaries of Crisis Agora on behalf of the Feminism and International Law Interest Group of the European Society of International Law.

esil-2016On Friday 9th September, the Feminism and International Law Interest Group of the European Society of International Law (ESIL) held an agora entitled ‘The Gendered Imaginaries of Crisis in International Law.’ The agora session was initially inspired by Hilary Charlesworth’s provocative statement that ‘international lawyers revel in a good crisis. A crisis provides a focus for the development of the discipline and it also allows international lawyers the sense that their work is of immediate, intense relevance.’ In this vein, the agora aimed to disrupt mainstream interpretations and perspectives on crisis as well as remind attendees of the various ways in which gender is implicated in the narratives of crisis. (Agora participants pictured above, from left to right, Bérénice Schramm (chair), Marion Blondel, Dianne Otto, and Jaya Ramji-Nogales; Zeynep Kivilcim is pictured in the Skype screen at the top.)

The agora was bilingual (in both French and English). This bilingualism not only helped to disrupt the increasing dominance of the English language at ESIL but also allowed for a wider array of feminist perspectives to be considered.

The panel began with an intervention by IntLawGrrl Bérénice K. Schramm, the Agora Chair. Bérénice began with a reminder of the many ways in which crisis is utilised globally, not only by international lawyers to revel in but also as a moment for change and resistance, thus disrupting mainstream international legal views of crisis. She also highlighted the many elements of crisis which go unseen, including the sounds and images of crisis, showing pictures of women in Rojava engaging in radical democratic work and drawing on the work of German art collective Maiden Monsters to highlight both the existence of counter images to crises and sounds of crisis and the corollary fact that neoliberalism, from a feminist perspective, is, itself, a crisis.

Bérénice, in her introduction, also read an important statement regarding Turkey. One of the panellists, Zeynep Kivilcim, sadly, was unable to attend the agora in person and was forced to intervene via Skype. This was due to the current political situation in her country and the crack down by the government on academics and academic freedom. As a signatory to the ‘Academics for Peace’ petition‘Academics for Peace’ petition, Zeynep risks being interrogated daily. Bérénice reminded the agora participants of the terrible ongoing situation in Turkey and the need to remember the ways in which crises affect academic work and freedom.

The first paper presented was by Dianne Otto and was entitled ‘Feminist Aspirations and Crisis Law: Navigating Uncomfortable Convergences and New Opportunities.’ Dianne noted the normalisation of crisis in international discourse and the ways in which this spreading atmosphere of crisis has allowed for the expansion of emergency laws and rule by experts and technocrats who often favour neoliberal ends. Her paper went on to highlight the ways in which ‘gender panics’ are also caught up in international discourses on crisis, noting, for example, how the trafficking movement and the panic over preventing sex trafficking has been used, not only to deny women agency and the right to make their own sexual and economic decisions, but also to ignore the wider, structural issues which surround trafficking, including poverty and exploitative labour conditions (noting how the focus on trafficking also works to ignore other migrants). Continue reading

Rethinking International Law’s Responses to Refugee Flows

portrait of Tendayi Achumie

Over the past year, the international refugee system has proven itself incapable of managing massive movements of human beings throughout the world, from Syria to Myanmar to Honduras, and of adequately protecting those in flight.  Most commentators agree that the system is either irretrievably broken, or on the precipice of breakdown.  Just this morning, UN High Commissioner for Refugees Special Envoy Angelina Jolie Pitt expressed the latter sentiment in an interview by the BBC — part of a full day of reporting on “how mass migration is changing our world.”  Critiques of the system are commonplace; creative solutions in much shorter supply.

For those interested in reading a provocative and thoughtful proposal for reform, I recommend highly Prof. Tendayi Achiume’s article, Syria, Cost-sharing, and the Responsibility to Protect Refugees.  Achiume, pictured above left, offers a novel approach to the Responsibility to Protect, leveraging it as a toolkit to improve coordination and equitable cost-sharing around refugee flows.  The article itself is well worth a read, but for those looking for a shorter take, my review of her article was posted on Jotwell this morning.

Beyond Survival: Livelihood Strategies for Refugees in the Middle East

What can be done static1.squarespace.comto improve the lives of Syrian refugees in Jordan, Lebanon, and Turkey?  A terrific interdisciplinary conference I attended last November at Cornell Law School, entitled Beyond Survival: Livelihood Strategies for Refugees in the Middle East, engaged with that question from a variety of perspectives, focusing on the pressing issues of employment and education.  Jointly organized by the Prof. Chantal Thomas of the Clarke Initiative for Law and Development in the Middle East and North Africa, Dean Eduardo Penalver and Associate Dean Laura Spitz of Cornell University Law School, Dr. Josyann Abisaab and Dr. Satchit Balsari of Weill Cornell Global Emergency Medicine Division, and Prof. Mostafa Minawi of the Ottoman and Turkish Studies Initiative, this was the first extended academic conference at a U.S. university to focus on the situation of Syrian refugees.  The conference brought together anthropologists, demographers, doctors, economists, education experts, historians, legal academics, public health experts, technologists, and UN headquarters and field staff from the region to discuss the current situation on the ground and potential strategies for improving access to jobs and schools.  Several speakers, including the UNHCR Representative in Jordan, had recently worked in and/or conducted research in refugee camps in Jordan and Lebanon, and were able to provide timely, detailed, and comprehensive information about the numerous challenges facing the refugee populations in those countries.  A report summarizing the conference proceedings, including this information and expert analysis from a variety of fields, has just been made available here.  The goal of the report is to set research priorities for academics and research institutions “seeking innovative, evidence-based solutions” and to encourage dialogue and engagement among students and faculty at university campuses to meet the urgent needs of Syrian refugees, and to think more broadly about “our obligations to people beyond our borders.”

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.