Reproductive Violence and International Criminal Law (International Criminal Justice Series, 29)

This book deals with the phenomenon of conflict-related reproductive violence and explores the international legal framework’s capacity to respond to it. The international discourse on gender-based violence in conflicts tends to focus on sexualized crimes, which leads to incomplete narratives of the gendered dimensions of armed conflicts. In particular, international law has often remained silent on conflict-related violence affecting or aimed at the victim’s reproductive system. The author conceptualizes reproductive violence as a distinct manifestation of gender-based violence and a violation of reproductive autonomy. The analysis explores the historical approaches to reproductive violence and evaluates the current potentials of international criminal law for its prosecution as genocide, crimes against humanity, and war crimes. In this regard, it also develops proposals for a gender-sensitive interpretation of the existing legal framework as well as possible amendments toit. The book is aimed at researchers and practitioners in the fields of international criminal justice and international human rights law with an interest in gender perspectives on international law, sexualized and gender-based violence, and the discourse on reproductive human rights. Tanja Altunjan is a former researcher at Humboldt-Universität zu Berlin where she obtained her doctoral degree in criminal law. Acknowledgements Contents 1 Introduction 1.1 Aim and Impetus of This Book 1.2 Structure 1.3 Terminology 1.3.1 Sex and Gender 1.3.2 Sexualized and Gender-Based Violence 1.3.3 Reproductive Violence 1.4 Theoretical and Methodological Background 1.4.1 International Criminal Law in the International Legal Order 1.4.2 Sources and Interpretation of International Criminal Law 1.4.3 Feminist Approaches to International Law References 2 The Foundation: Sexualized Violence in International Law 2.1 Introduction 2.2 The Factual Background: Conflict-Related Sexualized Violence 2.2.1 Manifestations of Sexualized Violence in Conflict Situations 2.2.2 Effects of Conflict-Related Sexualized Violence 2.2.3 Causes of Conflict-Related Sexualized Violence 2.2.4 Narratives of Conflict-Related Sexualized Violence 2.2.5 Summary 2.3 International Humanitarian Law 2.3.1 Early Developments 2.3.2 The Hague and Geneva Conventions 2.3.3 Sexualized Violence and the Concept of “Honour” in International Humanitarian Law 2.3.4 Summary 2.4 International Criminal Law 2.4.1 Before World War II 2.4.2 Trials Post-World War II 2.4.3 The Cold War Period and Beyond 2.4.4 Statutes and Practice of the ad hoc Tribunals 2.4.5 The International Criminal Court 2.4.6 Other International and Hybrid Courts 2.4.7 Summary 2.5 International Human Rights Law 2.5.1 Human Rights Instruments Focusing on the Protection of Women 2.5.2 Soft Law on Sexualized Violence 2.6 Conclusion References 3 Historical Perspectives on Reproductive Violence in International Law 3.1 Introduction 3.2 The Factual Background: Conflict-Related Reproductive Violence 3.2.1 Historical Overview on Reproductive Violence in Conflict Situations 3.2.2 Reproductive Violence and Children Born of Rape in Conflicts 3.2.3 Manifestations and Effects of Conflict-Related Reproductive Violence 3.2.4 Summary 3.3 International Criminal Law 3.3.1 The Concept of Reproductive Violence in International Criminal Law 3.3.2 Reproductive Violence in Post-World War II Trials 3.3.3 Reproductive Violence in the Genocide Convention 3.3.4 Reproductive Violence in the Statutes and Practice of Modern International and Hybrid Criminal Courts 3.3.5 Reproductive Violence in Legal Scholarship 3.3.6 Summary 3.4 International Human Rights Law 3.4.1 Reproductive Rights as Internationally Recognized Human Rights 3.4.2 Reproductive Violence as a Human Rights Violation 3.5 Conclusion References 4 Reproductive Violence and Genocide 4.1 Introduction 4.2 Pregnancy-Related Crimes as Genocide: Historical and Conceptual Background 4.2.1 The Impetus: Reports from the Former Yugoslavia 4.2.2 Rape as an Act of Genocide 4.2.3 The Genocidal Nature of Pregnancy-Related Crimes: A “Logical Glitch”? 4.2.4 Genocide and Children Born of Rape 4.2.5 Summary and Evaluation 4.3 The Prosecution of Pregnancy-Related Crimes as Genocide 4.3.1 Preliminary Remarks 4.3.2 Causing Serious Bodily or Mental Harm to Members of the Group 4.3.3 Deliberately Inflicting on the Group Conditions of Life Calculated to Bring About Its Physical Destruction in Whole or in Part 4.3.4 Imposing Measures Intended to Prevent Births Within the Group 4.3.5 Forcibly Transferring Children of the Group to Another Group 4.3.6 The Intent to Destroy 4.3.7 Summary 4.4 Other Forms of Reproductive Violence as Genocide 4.4.1 Forced Sterilization 4.4.2 Forced Abortion 4.4.3 Forced Contraception 4.4.4 Summary 4.5 Conclusion References 5 Forced Pregnancy as a Crime Against Humanity and a War Crime 5.1 Introduction 5.2 Historical and Conceptual Background 5.2.1 Preliminary Remarks on Terminology Regarding Pregnancy-Related Crimes 5.2.2 The Impetus 5.2.3 Forced Pregnancy in the Human Rights Discourse 5.3 The Negotiations for the Statute of the International Criminal Court 5.3.1 Early Developments 5.3.2 Preparatory Committee 5.3.3 Rome Conference 1998 5.3.4 Preparatory Commission 5.3.5 Analysis and Evaluation of the Drafting Process 5.4 Forced Pregnancy as a Separate Crime Under International Law 5.4.1 Implicit Prosecution as Other Crimes 5.4.2 Necessity of Separate Crimes? 5.4.3 Analysis 5.5 The Definition of Forced Pregnancy in the ICC Statute 5.5.1 Protected Value 5.5.2 Preliminary Remarks on the Elements of the Crime 5.5.3 Woman Forcibly Made Pregnant 5.5.4 Unlawful Confinement 5.5.5 General Intent, Article 30 of the ICC Statute 5.5.6 Special Intent, Article 7(2)(f) of the ICC Statute 5.5.7 No Effect on National Laws Relating to Pregnancy 5.5.8 Proposals De Lege Ferenda 5.6 Forced Pregnancy Beyond the ICC 5.6.1 Forced Pregnancy in Other Jurisdictions 5.6.2 Forced Pregnancy as a Crime Under Customary International Law 5.7 Conclusion References 6 Enforced Sterilization and Other Forms of Reproductive Violence as Crimes Against Humanity and War Crimes 6.1 Introduction 6.2 The Crime of Enforced Sterilization 6.2.1 Historical Background 6.2.2 Elements of the Crime of Enforced Sterilization 6.2.3 Practice 6.2.4 Summary 6.3 “Unnamed” Reproductive Crimes: Implicit Prosecution of Reproductive Violence 6.3.1 The Categorization of Reproductive Violence as “Any Other Form of Sexual Violence”? 6.3.2 Persecution on the Grounds of Gender 6.3.3 Necessity of Separate Reproductive Crimes? 6.3.4 Summary 6.4 Conclusion References 7 Conclusion Index Présentation de l'éditeur : "This book deals with the phenomenon of conflict-related reproductive violence and explores the international legal framework's capacity to respond to it. The international discourse on gender-based violence in conflicts tends to focus on sexualized crimes, which leads to incomplete narratives of the gendered dimensions of armed conflicts. In particular, international law has often remained silent on conflict-related violence affecting or aimed at the victim's reproductive system. The author conceptualizes reproductive violence as a distinct manifestation of gender-based violence and a violation of reproductive autonomy. The analysis explores the historical approaches to reproductive violence and evaluates the current potentials of international criminal law for its prosecution as genocide, crimes against humanity, and war crimes. In this regard, it also develops proposals for a gender-sensitive interpretation of the existing legal framework as well as possible amendments to it. The book is aimed at researchers and practitioners in the fields of international criminal justice and international human rights law with an interest in gender perspectives on international law, sexualized and gender-based violence, and the discourse on reproductive human rights."