Forced Pregnancy as a Crime Against Humanity and a War Crime

The ICC Statute is the first international criminal legal instrument to recognize a separate crime of forced pregnancy, both as a crime against humanity and a war crime. The inclusion of the crime was the result of controversial negotiations, and its definition is complex and restrictive. This chapter details the negotiating history of the crime and proposes an interpretation of its elements, which is guided by the protected value of reproductive autonomy and informed by the international human rights framework pertaining to the protection of reproductive human rights. It argues that an explicit criminalization of different manifestations of gender-based and particularly reproductive violence is important and necessary. This is because such an approach surfaces the unique harm suffered by the victims and ensures that the underlying conduct is conceptualized as a criminal act deserving investigation and prosecution as a crime under international law.