Side Event at the Human Rights Council’s 60th Session
At the 60th session of the Human Rights Council (HRC), the International Commission of Jurists (ICJ) co-sponsored a side event organized by the International Planned Parenthood Federation (IPPF) on reproductive violence in the Occupied Palestinian Territory (OPT)
Kate Vigneswaran, ICJ Director for the Global Accountability Initiative, gave a presentation on the legal grounds for considering and addressing reproductive violence perpetrated in the occupied Palestinian territories as genocide.
Good afternoon excellencies, panelists and colleagues,
On behalf of the ICJ, I would like to thank IPPF for organising this event, as well as the co-sponsors and my co-panelists. Unfortunately, speaking on this topic in our current political environment comes with risks that are preventing those individuals and communities most affected from speaking out. I hope I can do justice to their voices by speaking today.
Building on the excellent interventions of the prior panelists about the horrifying violence perpetrated against Palestinians in Gaza, I want to talk about pursuing accountability for reproductive violence as genocide, which has had insufficient attention in criminal justice and other processes to date.
Reproductive violence is directly listed as act of genocide when it constitutes the imposition of measures to prevent births within the group. In some cases at the domestic and international levels, direct acts were found to constitute the imposition of such measures, including the Israeli case against former Nazi official Adolf Eichmann for directing that births be banned and pregnancies terminated among Jewish women in the Terezen ghetto. Indirect acts have also been found to constitute the imposition of measures to prevent births, including for reproductive and sexual violence that caused trauma and social stigma that prevented survivors from procreating in the Rwandan Tribunal case of Akayesu. In other cases, indirect measures were found not to constitute genocide, such as in the Srebrenica genocide cases before the Yugoslavia Tribunal, where several chambers concluded that the forced separation of men and women was not a measure intended to prevent births.
One of the reasons indirect acts of sexual violence may be difficult to prove is because the conduct must be carried out with intention to prevent births and also, as a special intent crime, with the intention to destroy the group in whole or in part. When most people think about genocide, they think about the holocaust and Rwanda, where millions or up to a million people were killed. Prosecutors have been at pains since then to demonstrate that, based on its explicit terms, the crime of genocide does not require mass killings. It requires the intent to destroy the group, preventing it from existing as a group in whole or in part.
In this way, reproductive violence goes to the core of this crime. While the individuals targeted may still physically exist, they are prevented from continuing to exist in that whole or in that part.
As we have heard in the Gaza context though, other forms of reproductive violence not directly or indirectly constituting measures intend to prevent births may meet the requirements of other genocidal acts, namely serious bodily and mental harm and deliberately imposing conditions of life calculated to destroy the population. As we have heard from the panelists speaking before me, Palestinians have been subjected to rape and sexual violence, torture, environmental destruction, destruction of civilian infrastructure including medical and IVF facilities, staff and supplies, and restrictions on access to food, clean water and other essential supplies and serious bodily and mental harm, that have had and their impact on both reproductive autonomy and reproductive capacity.
To ensure justice for reproductive violence against Palestinians as genocide, four things are needed.
First, in order to meet the high burden of proof in genocide cases, investigators, whether engaged in human rights documentation or criminal investigations, should collect information and evidence of the gendered norms underpinning the commission of crimes, which shape the intentions of the perpetrators, the perpetrators’ capacity to commit those crimes, and the experiences of affected individuals and communities. Deeply rooted gender norms at both individual and structural levels produce and reproduce power dynamics, societal roles, and the gender-differentiated impacts of violence, which directly relate to the intent of the perpetrators and their capacities to commit crimes. Such assessments should also consider the patterns of gender and reproductive violence that are integral to the infrastructure of Israeli apartheid and occupation. As Palestinian scholars have stated, women’s bodies are perceived as vessels of population growth perceived to threaten Israel and therefore must be destroyed. Without understanding gendered norms, both from the survivor community and perpetrator perspective, framing the crimes as reproductive violence by linking intent to the conduct will be difficult. To do this, investigations should include context specific gender experts and, where that is not possible, such persons should be called upon to give expert evidence. Investigations should also collect empirical evidence and medical data relating to the conduct and harms caused.
Second, as we heard from the Special Rapporteur, greater recognition of reproductive violence as a violation of reproductive autonomy, distinct from sexual violence as a violation of sexual autonomy, is required. In the Rome Statute of the ICC, for example, only the direct acts of forced pregnancy and enforced sterilization as crimes against humanity and war crimes and preventing births within a national, ethnic, racial, or religious group as genocide are listed as crimes. The 2023 Prosecution Policy on Gender-Based Crimes has now recognised reproductive violence as a distinct category of conduct and indicated that acts such as forced abortion, denial of essential reproductive healthcare, or physical violence targeting reproductive organs, among other conduct, may still be prosecuted under different provisions. This would ensure both direct and indirect acts targeting reproductive autonomy were captured in charging decisions, including for genocide. The Prosecutor should explore doing so in the Palestine situation currently before the court, including for the indirect impacts of starvation on reproductive capacities.
Third, more attention should be given to reproductive violence as genocide in ongoing or potential proceedings. Like the ICC prosecutor’s office, investigators and prosecutors at the domestic level should similarly seek to recognize, investigate and charge reproductive violence when exercising territorial, personal or universal jurisdiction. States involved in proceedings before the International Court of Justice should also ensure they give due regard to the experiences of women and girls.
To support them to do so, and fourth, states should support civil society to collect, analyse and report on information about gender norms and structures, acts of reproductive violence and the harms experienced by survivors and survivor communities so they can be relied upon in International Court of Justice proceedings and form the basis of complaints to treaty bodies. As mentioned by IPPF, the silencing of civil society and defunding of their work will have direct and adverse impacts on survivors’ access to justice.
