The First Prosecution of a Reproductive Crime
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’s Resistance Army commander. The Ongwen 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’s provisions in line with international human rights law. The first “explicit prosecution and conviction of a reproductive crime in the recent history of international criminal law” marks a critical victory for international transitional justice.
Defining Reproductive Violence as a Unique Form of Gender-Based Violence
The Rome Statute 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.
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 defines reproductive violence as “violence which involves a violation of reproductive autonomy or which is directed at people because of their reproductive capacity”.
The Ongwen conviction for forced pregnancy establishes a distinction between the ‘sexual’ and the ‘reproductive’ by identifying personal reproductive autonomy as the value that is offended by reproductive violence. While reproductive violence sometimes overlaps with sexual violence, its unique harms merit distinct legal recognition to improve accountability.
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 Trial Chamber noted, “the 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.”
As pointed out by Grey, the Amici Curiae in Ongwen, the judgment grounded the act of forced pregnancy within international human rights principles, namely the “women’s right to personal and reproductive autonomy and the right to family.” 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.
Historical Context: Unprosecuted Reproductive Violence in Wartime
Before Ongwen, reproductive violence was primarily addressed under article 2(d) of the Genocide Convention, which defines “imposing measures intended to prevent births” as genocide. Grey has noted that these measures were not considered “grave breaches” under the 1949 Geneva Conventions, reflecting a tendency to acknowledge reproductive violence only when tied to genocidal or ethnic cleansing motives.
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’s failure to prosecute reproductive violence committed in Japanese-operated “comfort stations” from 1932 to 1945. Despite detailed evidence of forced pregnancies, forced impregnation, and forced abortions, these crimes were never charged, a miscarriage of justice that highlights the international community’s neglect of women’s unique experiences of violence. The omission underscores the enduring failure to recognise reproductive violence as a violation of women’s 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’s identity.
Human Rights Law and Forced Pregnancy
A comprehensive interpretation of the Rome Statute requires anchoring its provisions firmly in IHRL, particularly when addressing reproductive violence. Pursuant to article 21(3), the Rome Statute must be interpreted in line with “internationally recognised human rights,” reflecting the principle that “human rights underpin the Statute at every level.” This requirement, reinforced by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Committee’s General Recommendation No. 35 ensures that the ICC’s approach to gender-based violence remains consistent with fundamental human rights principles, thereby preventing legal lacuna in the prosecution of reproductive crimes.
Such a human rights–based lens is crucial because, as outlined above, the Rome Statute does not explicitly mention the term “reproductive”, 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. This approach gained traction in the Ongwen Amici Curiae Observations, which noted that violations of sexual and reproductive health rights may constitute “other grave violations of international law” 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, 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.
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, 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 “fair labelling”, international criminal law can classify and penalise such crimes more accurately, thereby closing accountability gaps that have long allowed reproductive violence to go unchecked.
Crucially, the ICC’s decision in Ongwen 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 precedent paves the way for more robust frameworks that uphold reproductive dignity and ensure accountability for gender-based crimes in future conflicts.
International Humanitarian Law and Forced Pregnancy
Although the Geneva Conventions do not explicitly refer to “forced pregnancy,” the International Committee of the Red Cross (ICRC) has acknowledged, in its 2016 Commentary 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 “forced pregnancy” as a form of confinement where an individual is compelled to continue an unwanted pregnancy. This concept reflects the IHL prohibition of arbitrary detention and unlawful deprivation of liberty, which extends to denying a person access to safe abortion.
The Ongwen Pre-Trial Chamber at the ICC identified the relevant conduct for the crime of forced pregnancy as an “act of confinement” that forces someone to proceed with a pregnancy against their will. The ICC Prosecutor argued that the additional “special intent” 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 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. 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.
IHL also obliges 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 to confirm that wounded or sick persons must be cared for “to the fullest extent practicable,” 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 that those affected receive appropriate reproductive healthcare.
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.
Cross-Jurisdictional Impact and Evolving Legal Standards
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 “cross-fertilisation” 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 Delalić 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 Pérez v Mexico, the IACtHR drew upon ICTY and ECtHR precedents to reinforce the classification of sexual assault as torture. The ECtHR, in MC v Bulgaria, expanded the definition of rape beyond the requirement of physical force by referencing the ICTY’s 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’ combined efforts further validate the recognition of forced pregnancy and similar violations as grave crimes, reinforcing a cohesive legal standard across jurisdictions.
Conclusion
The trial of Dominic Ongwen at the ICC exemplifies how IHL and IHRL jointly reinforce the protection of reproductive health. By prosecuting forced pregnancy and other gender-based crimes in conflict, the case offers a form of transitional justice that explicitly addresses sexual and reproductive rights. It is clear that forced pregnancy constitutes a grave violation under IHL. International law can protect reproductive rights through the cross-fertilisation of IHL, human rights law, and international criminal law. This approach is imperative to investigating, prosecuting, and preventing the violation of reproductive rights in armed conflict.
Notably, the grave breaches regime associated with the Geneva Conventions confers universal jurisdiction upon states, enabling them to prosecute or extradite those accused of serious violations—such as forced pregnancy—regardless of where the crime occurred. This principle supports the goal of dissuasive sanctions outlined in the ICRC’s 2016 Commentary by mandating that states take penal measures against gender-based violence in conflict. Strengthening protections for women through this legal framework ensures that reproductive violence is not dismissed as a mere side-effect of war but is treated as an integral aspect of justice in post-conflict recovery.
Winona Xu is a Research Fellow at the University of California, Los Angeles (UCLA), where she is responsible for developing and instructing the first undergraduate international human rights and reproductive health curriculum at UCLA.