Non/Motherhood and Reproductive Violence in International Criminal Law

‘Gravity of Tenderness’ by The Fabler.

Reproductive violence, and, more broadly, gender-based violence, has long been a recurring feature of armed conflicts, authoritarian governance, and systemic discrimination, specifically and disproportionately targeting women and girls. Such practices impair the conditions under which non/motherhood can be freely chosen, undermining women’s reproductive autonomy to decide whether, when, and under what conditions to reproduce, as well as their right to family. Notwithstanding the persistence in history of such practices, international criminal law and its accountability mechanisms have struggled to name, frame and prosecute them coherently.

The 2024 UN Women and Global Justice Center Report underscores that, despite the inclusion of sexual and gender-based violence (SGBV) investigators and/or gender advisors within the UN investigative mechanism, reproductive violence remains under-documented. Reports issued by both UN-mandated and other mechanisms still largely omit specific analysis of reproductive violence. For instance, a 2023 report of the Commission of Inquiry for Syria recorded evidence of young girls giving birth in the context of forced marriages yet did not examine whether such instances might constitute reproductive violence, such as forced pregnancy.

This blogpost examines how international criminal law currently addresses reproductive autonomy harms, highlights recent developments, and sheds light on the need to recognise “reproductive violence” as a distinct category of harm, in order to enhance protection for women and girls, victims of such crimes.

A Gradual Acknowledgement of the Need to Focus on Reproductive Violence

This tendency to overlook gender-based and reproductive violence generates a profound and often irreparable prejudice against women and girls living in conflict zones. Crimes perpetrated against them frequently fail to receive proper legal recognition, thereby reinforcing cycles of unaccountability.

In recent years, however, the need to safeguard the rights of women and girls in conflict zones, and to recognise reproductive violence as a distinct category of harm, has increased profoundly. This shift was reaffirmed by UN Under-Secretary-General and UN Women Executive Director, Sima Bahous, during the United Nations Security Council high-level open debate on the “Protection of Civilians in Armed Conflict” in May 2025. In her remarks, she stated:

“Across too many conflicts, women’s bodies become battlegrounds – through sexual violence and also through the deliberate denial of reproductive rights and health services. […]In the past year, we have seen bombed maternity wards, blockaded medical supplies, and massive funding cuts. […] These are not natural consequences of war. They constitute a pattern of reproductive violence. Today, I urge that we treat reproductive violence as a distinct category of harm and hold perpetrators accountable. […]  Too often, women are seen as indirect victims. But they are direct targets of bombs and missiles”.

Lost Opportunity in Translating Violations Into Prosecutions

Despite UN Women’s ongoing efforts to secure justice for crimes committed against women and girls in conflict zones and to ensure accurate documentation, these violations are seldom translated into prosecutions. As a result, in the vast majority of cases, perpetrators face little to no accountability.

With the notable exception of the recent Ongwen case, in prior ICC proceedings, reproductive crimes were often mentioned but not independently charged. For instance, in the Prosecutor v. Thomas Lubanga Dyilo,  evidence of forced pregnancy (and, in some cases, forced abortion) of female child soldiers was submitted, yet no charges related to reproductive crimes were brought; and similarly, the ICC prosecution’s application for the issuance of an arrest warrant against Omar Al-Bashir included allegations of rape resulting in pregnancy among targeted ethnic groups. However the evidence of reproductive violence was not referred to in the Pre-trial Chamber’s arrest warrant decisions in 2009 and in 2010.

Accountability for reproductive crimes is further hindered by the practice, embedded in international criminal proceedings, of conflating reproductive harm with broader categories of sexual violence, torture, persecution, or genocide, leading to conceptual fragmentation and accountability gaps.

In particular, reproductive harms have often been overshadowed by the dominant focus on sexual violence. This has led competent authorities to analyse reproductive violence primarily as manifestations of sexual violence, despite the different legal interests at stake: on one hand, sexual assault concerns the individual’s sexual autonomy, while, on the other hand, reproductive violence concerns the individual’s reproductive autonomy, the freedom to decide whether, when, and under what conditions to reproduce. Indeed, reproductive violence interferes with the possibility to freely embrace motherhood and non-motherhood.

To subsume reproductive harms under the mere category of sexual violence or other crimes produces at least three significant consequences: i) it diminishes visibility of reproductive autonomy as an independent legal interest; ii) it risks neglecting broader population-level consequences (i.e. effects on family structures and community cohesion); iii) it impedes the protection of victims in situations which do not fall within the scope of those already established crimes, thus contributing to gaps in documentation and accountability.

The Existing International Legal Framework

The Rome Statute contains several provisions which could address cases of reproductive violence, albeit not in an exhaustive manner. For instance, Article 6(d) incorporates as an act of genocide “imposing measures intended to prevent births within the group”, while Article 7(1)(g) and Articles 8(2)(b)(xxii) and 8(2)(e)(ii) explicitly enumerate forced pregnancy and enforced sterilisation as, respectively, crimes against humanity and war crimes. In addition, Article 7(1)(k) provides a general category of “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”; given the broad scope of this provision, it may cover other non-enumerated forms of reproductive harm, insofar as they are of a similar character and intentionally cause great suffering, or serious injury.

Although reproductive claims may be prosecuted under the mentioned provisions, according to the principle of legality, it is required that all fundamental elements of crimes against humanity, war crimes and genocide are met. For instance, with regard to genocide, evidence of specific intent to destroy a group in whole or in part must be demonstrated. With reference to crimes against humanity, it is necessary to prove that the crime has been committed in a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Finally, in relation to war crimes, evidence of the existence of a conflict must be provided. Hence, many forms of reproductive violence may fall outside the strict parameters of the mentioned offences.

In light of the above, the current legal framework reveals a fragmented protection of reproductive autonomy, undermining investigative practices. Consequently, reproductive autonomy appears to be recognised and prosecuted only indirectly and conditionally. Therefore, there is a risk that practices interfering with an individual’s freedom to decide whether, when and under what circumstances to become a mother, or not, may go unrecognised.

Jurisprudential Developments and Their Limit

A significant jurisprudential development in the “reproductive harm” area occurred with Prosecutor v. Dominic Ongwen before the International Criminal Court (“ICC”). The Ongwen case marked a shift in the ICC proceedings. Specifically, for the first time, the ICC recognised reproductive autonomy as a distinct and specific harm without conflating it with sexual autonomy. Notably, it clearly stated that “the crime of forced pregnancy is grounded in the woman’s right to personal and reproductive autonomy and the right to family. The crime of forced pregnancy depends on the unlawful confinement of a (forcibly made) pregnant woman, with the effect that the woman is deprived of reproductive autonomy” (para. 316).

Even though the Court did not formally adopt the broader terminology of “reproductive violence”, the Ongwen case represented a jurisprudential moment in which reproductive harm was articulated more comprehensively. Following the Ongwen case, further progress toward recognising reproductive violence as a distinct category of crime has been made, especially by the ICC Office of the Prosecutor. In particular, in December 2023, the ICC Office of the Prosecutor adopted a new Policy on Gender-Based Crimes, which explicitly recognises reproductive violence as analytically distinct from sexual violence and emphasises reproductive autonomy as a key dimension of gender-based harm; while, the following year, in 2024, the ICC Office of the Prosecutor adopted the new Policy on Slavery Crimes, which recognises the reproductive dimensions of enslavement.

Even though the mentioned Policies lack the binding force in order to amend the Rome Statute, they reshape prosecutorial strategy and interpretive framing. Indeed, by distinguishing reproductive violence from sexual violence, the mentioned Policies encourage investigators and prosecutors to identify harms that directly target reproductive capacity, even where no overt sexual assault is involved. They also adopt an intersectional and survivor-centred approach, acknowledging that reproductive violations may intersect with discrimination based on gender, ethnicity, religion, or other protected characteristics.

Although, in light of the above, there appears to be a steady and increasing momentum toward recognising reproductive violence, and, more broadly, gender-based violence, as distinct categories of harm, the ICC jurisprudence has not been entirely consistent in translating this conceptual progress into convictions.

A clear example of this emerges from the recent Prosecutor v. Al Hassan, which marked the first case where the ICC addressed charges of persecution on gender grounds arising from the systematic targeting of women in Timbuktu. Although the Court convicted the accused on several accounts, the Trial Chamber acquitted Al Hassan of all sexual and gender-based crimes. These acquittals have generated particular concern, as they may illustrate the limits of the Court’s current doctrinal approach to gender-based prosecution, of which reproductive violence is part, as autonomous harms, thus distancing from the progress made in the aforementioned jurisprudence settled by the Ongwen case. In the Al Hassan case, the Trial Chamber was divided in its assessment of gender-based persecution: on one hand, Judges Prost and Mindua concluded that persecution on both religious and gender grounds had been established beyond reasonable doubt; on the other hand, Judge Akane found that only religious persecution had been established, declining to recognise gender-based persecution as proven on the basis that acts of sexual violence, forced marriage, and coercive control were insufficiently connected to the group’s common purpose.

It becomes clear that, despite normative and policy progress, the Al Hassan case demonstrates that significant challenges persist in judicial practice, particularly when sexual and gender-based violence is assessed without full consideration of its broader ideological and structural context.

Concluding Remarks

Recent developments, particularly the Ongwen case, the ICC’s 2023 Policy on Gender-Based Crimes and the ICC’s 2024 Policy on Slavery Crimes, mark an emerging recognition of reproductive autonomy as a standalone legal interest. While no specific offence of reproductive violence exists yet in the Rome Statute, the conceptual shift is significant. It refines prosecutorial framing, enhances the visibility of survivors’ experiences and relevant protection, avoiding to the maximum extent possible accountability gaps. Ultimately, recognising reproductive violence as a distinct category of harm will contribute to safeguarding the freedom of women and girls to shape motherhood, or to refuse it, free from coercion and violence.

However, as illustrated by the Al Hassan case, normative and policy advances have not been translated into stable judicial practice yet. The challenge facing international criminal law is therefore not solely one of legislative reform, but of conceptual clarity and doctrinal consistency. Whether the interpretive practices developed in the Ongwen case will be replicated in future cases remains to be seen.

Looking ahead, in the short term, it will be valuable to understand how the ICC will approach forthcoming pending proceedings, such as the Kony case, which involve charges related to offences involving reproductive autonomy. In the long term, meaningful progress will depend on sustained engagement across the international legal community. Academic debate, institutional dialogue, and dedicated discussions in fora on reproductive violence could raise awareness of the importance and the practical implications of the matter at hand, contributing to refining the law’s contours and improving investigative approaches, thereby enhancing accountability for these harms.