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<\/figure>\nThe First Prosecution of a Reproductive Crime<\/strong><\/p>\n In February 2021, the International Criminal Court (ICC) convicted Dominic Ongwen on sixty-two counts of crimes against humanity and war crimes committed in Northern Uganda between July 1, 2002, and December 31, 2005, in his role as Lord\u2019s Resistance Army commander. The Ongwen<\/em> conviction set a legal precedent for prosecuting reproductive violence: it is the first time that forced pregnancy has been charged as an international crime, establishing a criminal jurisprudence for reproductive violence to be charged as both a crime against humanity and a war crime. This successful prosecution established that forced pregnancy entails criminal liability due to its violation of reproductive autonomy, particularly by interpreting the Rome Statute\u2019s provisions in line with international human rights law. The first \u201cexplicit prosecution and conviction of a reproductive crime in the recent history of international criminal law\u201d marks a critical victory<\/a> for international transitional justice.<\/p>\n The Rome Statute<\/a> establishes that sexual violence constituting a serious violation of common article 3 of the Geneva Conventions is a war crime, alongside rape, sexual slavery, enforced prostitution and forced pregnancy (article 8(2)(b)(xxii) and (e)(vi)). These are also crimes against humanity (article 7(1)(g)). The only sexual crime specifically defined in these provisions is forced pregnancy (article 7(2)(f)). Critically for our purposes, the Rome Statute has categorised the only two reproductive crimes included within the mainly be categorised as acts of sexual violence, furthering a knowledge gap of reproductive violence within international law.<\/p>\n There is no formal definition of reproductive violence in international law. Legal scholarship helps to fill this gap and understands reproductive violence to be a unique subset of gender-based violence. Rosemary Grey<\/a> defines reproductive violence as \u201cviolence which involves a violation of reproductive autonomy or which is directed at people because of their reproductive capacity\u201d.<\/p>\n The Ongwen<\/em> conviction for forced pregnancy establishes a distinction<\/a> between the \u2018sexual\u2019 and the \u2018reproductive\u2019 by identifying personal reproductive autonomy as the value<\/em> that is offended by reproductive violence. While reproductive violence sometimes overlaps with sexual violence, its unique harms merit distinct legal recognition to improve accountability.<\/p>\n The practice of subsuming reproductive crimes within the broader category of sexual violence has obscured well-documented commissions of reproductive violence throughout the history of armed conflict, evidenced by accountability gaps. This prevents the discrete accountability of such crimes because it creates adverse knowledge gaps in the structures that underpin the violence. As the Ongwen<\/em> Trial Chamber noted<\/a>, \u201cthe proper characterisation of the evil committed, that is to say, calling the crime by its true name, is part of the justice sought by the victims.\u201d<\/p>\n As pointed out by Grey, the Amici Curiae in Ongwen<\/em><\/a>, <\/em>the judgment<\/a> grounded the act of forced pregnancy within international human rights principles, namely the \u201cwomen\u2019s right to personal and reproductive autonomy and the right to family.\u201d This establishes an interplay between international human rights law (IHRL) and international humanitarian law (IHL), a paradigm shift that may further transitional justice for survivors of reproductive violence.<\/p>\n Before Ongwen<\/em>, reproductive violence was primarily addressed under article 2(d) of the Genocide Convention<\/a>, which defines \u201cimposing measures intended to prevent births\u201d as genocide. Grey<\/a> has noted that these measures were not considered \u201cgrave breaches\u201d under the 1949 Geneva Conventions, reflecting a tendency to acknowledge reproductive violence only when tied to genocidal or ethnic cleansing motives.<\/p>\n This narrow focus left significant impunity gaps, as evidenced by the lack of accountability for crimes like forced pregnancy or sterilisation in landmark cases, such as the Tokyo Tribunal\u2019s failure<\/a> to prosecute reproductive violence committed in Japanese-operated \u201ccomfort stations\u201d from 1932 to 1945. Despite detailed evidence<\/a> of forced pregnancies, forced impregnation, and forced abortions, these crimes were never charged, a miscarriage of justice that highlights the international community\u2019s neglect of women\u2019s unique experiences of violence. The omission underscores the enduring failure to recognise reproductive violence as a violation of women\u2019s autonomy and dignity in its own right. Instead, international criminal law (ICL) has yet to address the broader spectrum of reproductive violence and its profound interference with individual human rights unless tied to harming a group\u2019s identity.<\/p>\n Human Rights Law and Forced Pregnancy<\/strong><\/p>\n A comprehensive interpretation of the Rome Statute requires anchoring its provisions firmly in IHRL, particularly when addressing reproductive violence. Pursuant to article 21(3),<\/a> the Rome Statute must be interpreted in line with \u201cinternationally recognised human rights,\u201d reflecting the principle that \u201chuman rights underpin the Statute at every level.\u201d This requirement, reinforced by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Committee\u2019s General Recommendation No. 35<\/a> ensures that the ICC\u2019s approach to gender-based violence remains consistent with fundamental human rights principles, thereby preventing legal lacuna in the prosecution of reproductive crimes.<\/p>\n Such a human rights\u2013based lens is crucial because, as outlined above, the Rome Statute does not explicitly mention the term \u201creproductive\u201d, leaving critical gaps for reproductive crimes beyond forced pregnancy. By grounding the Rome Statute in IHRL, article 21(3) locates the crime of forced pregnancy within the right to reproductive autonomy, a right also articulated in the Beijing Declaration<\/a>. This approach gained traction in the Ongwen<\/em> Amici Curiae Observations, which noted<\/a> that violations of sexual and reproductive health rights may constitute \u201cother grave violations of international law\u201d under article 7(2)(f). Through this expanded view, the Rome Statute can encompass broader protections found in external human rights treaties, such as the 2003 Maputo Protocol<\/a>, which explicitly protects reproductive autonomy and prohibits harmful practices. Thereby, the Rome Statute develops to respond to evolving conflict dynamics that give rise to new forms of reproductive violence.<\/p>\n Furthermore, recognising reproductive autonomy as a core human right means that states have a duty to safeguard these rights during both peacetime and conflict. In a 2020 report<\/a>, the UN Special Rapporteur on the promotion of truth, justice, reparations, and guarantees of non-recurrence underscored the necessity of prosecuting forms of reproductive violence not explicitly named in the Rome Statute, such as forced abortion or enforced loss of reproductive capacity. By applying the principle of \u201cfair labelling<\/a>\u201d, international criminal law can classify and penalise such crimes more accurately, thereby closing accountability gaps that have long allowed reproductive violence to go unchecked.<\/p>\n Crucially, the ICC\u2019s decision in Ongwen<\/em> exemplifies this paradigm shift: by charging forced pregnancy as a distinct crime, the Court acknowledged the importance of reproductive autonomy as a value offended by reproductive violence. This approach clarifies that while reproductive violence can overlap with sexual violence, it has unique harms that deserve separate legal recognition. As international criminal law continues to integrate IHL and IHRL norms, the Ongwen<\/em> precedent paves the way for more robust frameworks that uphold reproductive dignity and ensure accountability for gender-based crimes in future conflicts.<\/p>\n Although the Geneva Conventions do not explicitly refer to \u201cforced pregnancy,\u201d the International Committee of the Red Cross (ICRC) has acknowledged, in its 2016 Commentary<\/a> on the Geneva Conventions, that forced pregnancy and enforced sterilisation qualify as forms of sexual violence. Under common article 3, such acts may be considered prohibited. The ICRC Commentary defines \u201cforced pregnancy\u201d as a form of confinement where an individual is compelled to continue an unwanted pregnancy. This concept reflects the IHL<\/a> prohibition of arbitrary detention and unlawful deprivation of liberty, which extends to denying a person access to safe abortion.<\/p>\n The Ongwen<\/em> Pre-Trial Chamber at the ICC identified<\/a> the relevant conduct for the crime of forced pregnancy as an \u201cact of confinement\u201d that forces someone to proceed with a pregnancy against their will. The ICC Prosecutor argued<\/a> that the additional \u201cspecial intent\u201d behind such unlawful confinement is either to affect the ethnic composition of a population or to carry out other grave violations of international law. Once forced pregnancy is recognised as a grave violation, it triggers<\/a> serious legal consequences: under international law, states may have obligations to investigate and prosecute these acts (or extradite suspects) because grave violations can fall under universal jurisdiction<\/a>. Individuals found responsible may be prosecuted for war crimes or crimes against humanity, underscoring that these are not isolated personal injuries but serious breaches of the international legal order.<\/p>\n IHL also obliges<\/a> parties to a conflict to provide non-discriminatory medical care to the wounded and sick, which when held consistent with modern human rights treaties also encompasses essential reproductive health services. Over time, this protection has evolved<\/a> to confirm that wounded or sick persons must be cared for \u201cto the fullest extent practicable,\u201d and this includes access to safe abortion where medically indicated. Denying abortion services specifically targets a healthcare need unique to one biological sex; as such, it constitutes prohibited discrimination under IHL. In other words, international humanitarian law not only forbids forced pregnancy as an act of confinement but also requires<\/a> that those affected receive appropriate reproductive healthcare.<\/p>\n Taken together, these developments highlight that forced pregnancy is a prosecutable form of sexual violence and a serious breach of IHL. By classifying it as a grave violation, the law emphasises the duty of states to prevent such abuses and hold perpetrators accountable, reinforcing the fundamental principle of non-discrimination in armed conflict and the protection of reproductive rights.<\/p>\n Protecting women in war, though a secondary goal in the Geneva Conventions, has gained prominence in recent years as international entities increasingly treat sexual violence as central to armed conflict rather than collateral. This view is reinforced by the \u201ccross-fertilisation<\/a>\u201d of international criminal law, IHRL and IHL, where international courts cite each other to deepen the legal understanding of sexual violence. For example, in the Delali\u0107<\/em><\/a> case, the ICTY cited rulings of the European Court of Human Rights (ECtHR) and the Inter-American Commission on Human Rights (IACtHR) to conclude that rape can amount to torture; similarly, in P\u00e9rez v Mexico<\/em><\/a>, the IACtHR drew upon ICTY and ECtHR precedents to reinforce the classification of sexual assault as torture. The ECtHR, in MC v Bulgaria<\/em><\/a>, expanded the definition of rape beyond the requirement of physical force by referencing the ICTY\u2019s findings on non-consensual sexual acts. Together, these cases illustrate the growing alignment of legal standards. By extending recognition that forced pregnancy and other forms of sexual violence can constitute torture, this cross-fertilisation underscores broader sexual and reproductive rights protections in armed conflict. This cross-jurisdictional collaboration deepens the legal understanding of sexual and reproductive rights within IHL, strengthening protections and enforcement in reproductive violence cases. These courts\u2019 combined efforts further validate the recognition of forced pregnancy and similar violations as grave crimes, reinforcing a cohesive legal standard across jurisdictions.<\/p>\n