2021 | Book

Reproductive Violence and International Criminal Law

Author: Dr. Tanja Altunjan

Book Series : International Criminal Justice Series

Part of: Springer Professional "Business + Economics & Engineering + Technology" , Springer Professional "Business + Economics"

Table of Contents

About this book

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.

Tanja Altunjan is a former researcher at Humboldt-Universität zu Berlin where she obtained her doctoral degree in criminal law.

Frontmatter

Chapter 1. Introduction

Abstract

Reproductive violence is prevalent in accounts of conflict scenarios from around the world and throughout history. Nevertheless, this type of gender-based violence has rarely come to the attention of international prosecutors and judges. In fact, though the related phenomenon of conflict-related sexualized violence is regularly condemned by the international community and increasingly addressed in international criminal trials, reproductive violence remains in the shadows. Against this background, this book aims to evaluate the historical development and current potentials of international criminal law to address different manifestations of conflict-related reproductive violence. This first chapter provides an overview on the aim and structure of the book. It also offers definitions for key concepts and describes the theoretical and methodological background upon which the subsequent chapters are built.

Tanja Altunjan

Chapter 2. The Foundation: Sexualized Violence in International Law

Abstract

Until the 1990s, sexualized violence was mostly conceptualized as an unfortunate but inevitable by-product of war. This narrative is visible in the post-World War II trials, which addressed sexualized violence only in passing and mostly failed to hold perpetrators accountable for rape and other sexualized crimes. The events during the wars in the former Yugoslavia and the genocide in Rwanda helped to shift this narrative. In recent years, conflict-related sexualized violence has received much international attention, and the international criminal legal framework has made immense progress with regard to sexualized crimes and gender sensitivity more generally. Today, sexualized violence is often conceptualized as a “weapon of war”, though this description has elicited criticism as well. This chapter portrays the factual background of conflict-related sexualized violence and its treatment under international humanitarian law, international criminal law, and international human rights law in a historical perspective. It traces the progressive developments of the international legal framework and illustrates persisting challenges, particularly with regard to its practical implementation.

Tanja Altunjan

Chapter 3. Historical Perspectives on Reproductive Violence in International Law

Abstract

This chapter conceptualizes reproductive violence as a distinct form of gender-based violence that is not necessarily committed in a sexualized manner. Its unique characteristic is the underlying violation of reproductive autonomy, understood as the freedom to choose whether, how, and under what circumstances to reproduce. Conflict-related reproductive violence may occur in various manifestations. This includes, for example, forced sterilization as a negative form and forced pregnancy as a positive form of reproductive targeting, which have been documented throughout history. Nevertheless, reproductive violence has rarely been addressed within the international criminal legal discourse. While post-World War II trials set important precedents particularly with regard to the act of forced sterilization, the prosecution of reproductive violence under international law has thus far remained limited to genocidal or similar group-related scenarios. Giving an overview on historical documentations of conflict-related reproductive violence and transferring insights from the discourse on reproductive human rights, this chapter argues that international criminal law and practice should address reproductive violence as a violation of reproductive autonomy independently of its possible collective dimension.

Tanja Altunjan

Chapter 4. Reproductive Violence and Genocide

Abstract

This chapter discusses the potentials to prosecute different manifestations of reproductive violence as the crime of genocide under Article II of the Genocide Convention. In the light of the historical background, most notably the “genocidal rape” debate of the 1990s, it explores the somewhat paradoxical conceptualization of pregnancy-related crimes, namely the forcible impregnation or continuation of a pregnancy, as genocide. The implications of this debate for the children born as a result are also addressed, most importantly the danger of marginalization. In this context, it is argued that an assessment of the perpetrator’s criminal responsibility should be conducted with a view to the violation of the individual’s reproductive autonomy, meaning an interference with the right to reproduce in a self-determined manner, and not on the basis of exclusionary conceptualizations of ethnicity. The chapter further examines the elements of the reproductive crime of “imposing measures intended to prevent births” under Article II(d) of the Genocide Convention and argues that acts of reproductive violence such as forced impregnation, forced pregnancy, forced sterilization, forced abortion, and forced contraception may be prosecuted as genocide.

Tanja Altunjan

Chapter 5. Forced Pregnancy as a Crime Against Humanity and a War Crime

Abstract

The ICC Statute is the first international criminal legal instrument to recognize a separate crime of forced pregnancy, both as a crime against humanity and a war crime. The inclusion of the crime was the result of controversial negotiations, and its definition is complex and restrictive. This chapter details the negotiating history of the crime and proposes an interpretation of its elements, which is guided by the protected value of reproductive autonomy and informed by the international human rights framework pertaining to the protection of reproductive human rights. It argues that an explicit criminalization of different manifestations of gender-based and particularly reproductive violence is important and necessary. This is because such an approach surfaces the unique harm suffered by the victims and ensures that the underlying conduct is conceptualized as a criminal act deserving investigation and prosecution as a crime under international law.

Tanja Altunjan

Chapter 6. Enforced Sterilization and Other Forms of Reproductive Violence as Crimes Against Humanity and War Crimes

Abstract

This chapter addresses the potentials of the ICC Statute to respond to negative forms of reproductive violence under the umbrella of crimes against humanity and war crimes. It first examines the crime of enforced sterilization, which has played no role in the practice of any modern international criminal court thus far. There appears to be a reluctance on the part of prosecutors to charge acts causing permanent loss of reproductive capacity explicitly as enforced sterilization. This is problematic because it erases the unique harm suffered by the victims from the narrative of international trials. The second part of the chapter addresses other forms of reproductive violence not explicitly criminalized. It is argued that the ICC Statute offers a broad array of more general crimes which can and should be used to prosecute acts such as forced abortion and forced contraception. The analysis also highlights that the lack of distinction between the concepts of sexual and reproductive violence in the ICC Statute is problematic and proposes amendments in this regard.

Tanja Altunjan

Chapter 7. Conclusion

Abstract

This book proposes to conceptualize reproductive violence as a distinct manifestation of gender-based violence. The interpretation and application of reproductive crimes under international law must be informed by the protected value of reproductive autonomy, understood as the freedom to choose whether, how, and under what circumstances to reproduce. This allows for an adequate reflection of victims’ experiences and surfaces the unique harm imposed by reproductive violence.

Tanja Altunjan

Backmatter

Title: Reproductive Violence and International Criminal Law
Author: Dr. Tanja Altunjan
Publisher: T.M.C. Asser Press
Electronic ISBN: 978-94-6265-451-8
Print ISBN: 978-94-6265-450-1
DOI: https://doi.org/10.1007/978-94-6265-451-8