Document Type

Article

Publication Year

2007

Journal Title

Michigan State Journal of International Law

Abstract

In an important victory for both women and the cause of human rights, the International Criminal Court (ICC) has criminalized forced pregnancy. The Court's Statute defines forced pregnancy as "the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other violations of international law." Although the concept of a forced pregnancy crime is relatively new, "forced impregnation" has been used throughout history as a tool of assimilation or subjugation of the enemy, minority, or slave populations." There is some evidence that the ancient Athenians used it as part of their genocide of the Melians for example, and in more recent times "thousands of outcast children were born as a result of the rapes of Bengali women by the West Pakistani army" in 1971.

Nevertheless, it was not until the mass rapes in Bosnia and Rwanda caught the attention of feminist legal scholars that forced pregnancy began to capture the public consciousness. Estimates vary but victims of rape gave birth to an estimated 2,000 - 5,000 "children of hate" in Rwanda and perhaps 400 - 600 in Bosnia. In Bosnia, particularly, commentators have alleged that Serbs had a systematic plan to impregnate Croatian and Muslim women and force them to bear Chetnik (i.e., Serb) babies. Catherine MacKinnon railed against a legal system that made states lack of protection for women internationally protected.

Against this backdrop, feminist groups united to create the Women's Caucus for Gender Justice in the ICC ("Women's Caucus"). The Women's Caucus was enormously influential during the planning phases of the ICC, and over the fierce opposition of some states, was successful in arguing for the inclusion of forced pregnancy in the ICC Statute. While the ICC has only just begun hearing cases, the court has already gone far beyond any other international tribunal in recognizing crimes committed against women.

Despite the optimism that surrounds the ICC and its recognition of forced pregnancy, little attention has been paid to how the crime will be prosecuted. In this Article, I will examine the potential difficulties associated with prosecuting forced pregnancy before the ICC. In Part I, I examine the ambiguities in the definition of forced pregnancy as well as the mens rea and actus reus of the crime. A particular problem is that the ICC definition "shall not in anyway be interpreted as affecting national laws related to pregnancy." Is it possible to make sense of "forced pregnancy" without in some sense recognizing a women's fundamental right to terminate her pregnancy? In Part II, I will address the different contexts in which forced pregnancy can potentially be prosecuted. Forced pregnancy qualifies as both a crime against humanity and a war crime under the ICC statute. There are particular challenges to prosecuting forced pregnancy as a crime against humanity and war crime. I will also address the claim that the ICC Statute does not go far enough - that forced pregnancy is genocide.

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