A CHANGE OF NARRATIVE: PROTECTING SEXUAL AND REPRODUCTIVE RIGHTS IN POSTCONFLICT CRIMINAL JUSTICE.

• Author: Vasquez, Noemi Perez

INTRODUCTION

Shortly after Russia invaded Ukraine in February 2022, horrendous, yet unfortunately unsurprising, reports about women and children being raped by the Russian army reached the international community. (1) Many of the victims were impregnated against their will and face limited access to safe abortions or other necessary reproductive health services both in Ukraine and in nearby countries. (2) Several legal and political responses to the news have acknowledged the gendered-nature of this form of violence in Ukraine and called for accountability. (3) However, this analysis is not exclusive to the crisis in Ukraine. When any conflict--ongoing or settled--is studied using proper analytical tools, the deep interconnection between one's lived conflict and post-conflict experiences and one's gender identity is discernible. In other words, gender affects the forms of violence perpetrators use on their victims, gender adds additional barriers with respect to access to post-conflict criminal justice, and gender determines the visibility of an individual's grievances, losses, and narrative. Though only one example of how conflict and post-conflict situations are gendered, this Article focuses on the poor protection of sexual and reproductive rights violations--both in conflict and post-conflict situations.

An individual's reproductive autonomy and reproductive and sexual health are protected by human rights, and more specifically by sexual and reproductive rights; however, infringements on sexual and reproductive health and autonomy (e.g., no access to contraception and abortion, obstetric care, sexual education, or vice versa: forced contraception, forced termination of pregnancy, forced sterilization, etc.) have gone largely unrecognized in post-conflict justice resolutions, such as when transitional justice mechanisms, including tribunals, are activated. Moreover, traditionally, such violations--although systemic and pervasive--have not received the necessary legal, political and societal attention to which they are entitled. Further, though scholars have been calling out the 'missing gender perspective' in post-conflict justice for decades, (4) the specific sexual and reproductive rights analysis has been regarded as even more absent -- the invisible within the invisible. (5) Even amongst scholars, this sexual and reproductive rights analysis was lacking. In fact, it was not until 1997, in Kelly Dawn Askin's ground-breaking book, that violations of reproductive rights (e.g., genocidal rape, forced maternity, the mutilation of reproductive organs, pregnancy caused by rape, forced or coerced maternity) were first framed in the post-conflict context. (6) Following Askin's conceptual work, scholars have since devoted greater attention to the violence in conflict situations that tends to affect one's reproductive capacity. (7)

Underlying the analysis of sexual and reproductive rights in the post-conflict context is that sexual and reproductive rights violations may be understood as distinct, yet often overlapping, categories falling under the general umbrella of gender-based violence. In other words, while some reproductive violations are a result of sexual violations, others lack a sexual character. Further, the modern understanding of reproductive violations is broad enough to cover both those violations that are already captured by international law and those that have not. Some have argued reproductive violations inadequately captured by international law, including genocidal rape, forced maternity, the mutilation of reproductive organs, pregnancy due to rape, forced or coerced maternity, and sexual assault or other violence affecting reproductive capacity should be properly labeled. (8) International law also fails to encompass 'collateral' reproductive violence, produced as a consequence of the infliction of other violations in conflict, such as causing women to miscarry as a result of torture and causing forced impregnation through rape, (9) as well as the long-term stigmatization on the mothers who have been raped and on their children who are the product of such rape. (10)

In parallel, or perhaps in response to scholarly work and policy efforts highlighting the importance of defining and addressing reproductive violence in the post-conflict context, international and domestic courts have recently joined the conversation, albeit limitedly. For instance, on February 4th, 2021, the International Criminal Court (ICC) found Dominic Ongwen guilty of the crime of forced pregnancy. (11) Notwithstanding the pending appeal, this was the first time forced pregnancy was charged within any international criminal law system and in which an international judicial decision expressly considered a victim's reproductive autonomy as a distinct value. (12) According to Tanja Altunjan, "the Ongwen case marks the first explicit prosecution and conviction of a reproductive crime in the recent history of international criminal law." (13) This sentence followed another trailblazing decision taken in 2020 by the Colombian Supreme Court, which recognized the crimes concerning forced abortion and forced contraception against women within a national conflict. (14) Although both the 2020 and 2021 court decisions are commendable stepping stones, we argue that the conversations between different stakeholders feel somewhat fragmented and unclear rather than connected to one all-encompassing (strategic) narrative. Therefore, questions concerning sexual and reproductive rights in post-conflict analysis still remain.

Our Article therefore pushes for a strategic conversation about sexual and reproductive rights in post-conflict justice: answering what steps must be taken to strengthen both the recognition that reproductive violence deserves and the access to justice for victims of these harms. Building on the existing scholarship and the evolving policy work on gender, transitional justice and violence, our contribution unfolds in three parts. We begin with a retrospect on how the international criminal law system has (mis)understood gendered violence, including in its (non)engagement with sexual and reproductive rights protection. We then turn to our more hopeful part of the analysis, and show the potential of post-conflict criminal justice to prosecute sexual and reproductive rights violations, and share an overview of the conceptual contributions of the growing scholarship. Lastly, in order to strengthen the protection of cases concerning reproductive conflict-related violence, we propose a blueprint of the considerations and strategies that should go into the design of further steps.

1. International Criminal Law and its (Mis)Understandings of Gendered Violence

   The historical narrative shows that the international criminal law's failure to engage effectively with gender analysis has negatively impacted its ability to protect the sexual and reproductive rights of persons gendered both male and female. As a result, the establishment of the ICC and its developing case law has not set a clear standard for sexual and reproductive rights analysis or provided a framework inclusive of all violent experiences women and girls experience during and after a conflict. This Section outlines some of the historical barriers to reaching a clear international criminal framework for remedying reproductive violence. This history extends from post-World War II tribunals to the establishment of the International Court of Justice. Throughout this span, protections for sexual and gender-based violence ("SGBV") have been among the most neglected issues; and reproductive rights in particular have been the most invisible within the invisible.

   1. World War II and Its Aftermath: Sexual Violence as a Tool of Genocide

      Historically, international law courts and tribunals have had a poor record of addressing crimes involving SGBV. First-hand accounts of rape during the Second World War existed. (15) Nonetheless, the Nurentburg Charter (1945), which established the core concepts used in the prosecution of war crimes after World War II, did not explicitly list SGBV as "violations of the laws or customs of war" or "crimes against humanity"; nor did SGBV feature in the Nurentburg trials. (16) Although the Japanese enslaved over 100,000 women, later known as "comfort women," (17) rape and sexual violence likewise received limited attention in the International Military Tribunal for the Far East, known as the Tokyo Trials. (18) Rape was also not listed as a war crime or crime against humanity in its Charter, although the Tribunal "recorded that approximately 20,000 cases of rape had occurred in the city of Nanking during the first month of its occupation." (19)

      The Geneva Conventions, ratified in 1949, include both explicit and implicit prohibitions against SGBV crimes; Common Article 3 expressly prohibited acts against non-combatants, including "outrages upon personal dignity, in particular humiliating and degrading treatment." (20) Articles across the four Geneva Conventions list among the crimes of grave breaches "willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health." (21) Finally, Article 27 of the fourth Convention requires states to protect women in international armed conflict "against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault." (22) The posture of this early protection is vulnerable to critique: by defining rape as an offense against honor, it facilitates a misconception that women should be protected from men, rather than indicating that rape itself is at the core of the legal problem because it is an attack against human lives. By not calling rape a crime of violence, the provision presents women implicitly "as male and family property"; and suggests that sexual violence is a lesser...