The Violation of Ukrainian Refugees’ Right to Reproductive Self-Determination in Poland
Rape and sexualized violence have been employed throughout history as weapons in armed conflicts. The ongoing Russian war against Ukraine is no exception to a long tradition of sexualized violence, especially against women. Human Rights Watch and Amnesty International have reported repeated cases of rape and allegations of a systematic, coordinated campaign of sexual violence by Russian military forces have emerged. While allegations of sexualized violence against men have also been brought forward, most of the purported victims are women and girls.
Survivors of sexualized violence often do not have adequate access to the healthcare and immediate aftercare required. Thus, in times of armed conflict, the risk of being forcibly subjected to pregnancies and births is exasperated. In the case of the ongoing conflict in Ukraine, many women fled to the neighbouring Poland, which has some of Europe’s harshest abortion laws.
Examining the situation of Ukrainian refugees in Poland, this blog post argues that denying survivors of rape adequate access to abortions is in violation of international human rights law. While the UN signing a framework to assist victims is a notable step towards achieving accountability, more attention needs to be paid to guaranteeing victims’ access to immediate aftercare and abortions.
The Lack of an Explicit Right to Abortion under International Human Rights Law
Although unsafe abortions are one of the leading causes of maternal mortality, the word “abortion” cannot be found in any international human rights treaties. Because of the controversial nature of abortions and its close connection to norms and arguments embedded in culture and religion, states frequently invoked national sovereignty to argue that the issue of reproductive rights falls within their exclusive prerogative. Thus, reproductive rights were not addressed in the human rights treaties in order to not endanger their ratification.
Despite there not being an explicit right to access to a safe and legal abortion, other human rights are interpreted as providing that the denial of access to abortion to rape victims constitutes a violation of international human rights law.
Obstruction of Access to Abortion and Cruel, Inhuman, and Degrading Treatment
Female suffering and exposure to violence have long been on the back burner of international legal discourse as international law was centered around the (white) male reality. The neglect for women’s reproductive rights is partially due to the gendered public/ private dichotomy that has traditionally existed in the context of international law and human rights protection. Because women were regarded the main figures in domestic “private” life and child caring, their health especially in connection with reproductive rights has been viewed as one of the most fundamentally private issues and thus inappropriate for legal regulation.
The historical understanding of the prohibition of torture or cruel, inhuman and degrading treatment was framed around the conception of mostly male detainees or prisoners of war which ignored that violence against women usually takes different forms. But the European Court of Human Rights [ECHR], the Human Rights Committee [HRC] and the Committee Against Torture [CAT] have now all recognized that denying rape survivors access to safe abortions amounts to cruel, inhumane, and degrading treatment. Precisely, the CAT has acknowledged that in these situations a woman faces “constant exposure to the violation committed against her […][which] causes serious traumatic stress and a risk of long-lasting psychological problems” (see here , para. 16). The psychological suffering that is being inflicted when forcing a woman to carry out an unwanted pregnancy was also emphasized by the HRC in the cases K.L. v. Peru and L.M.R v. Argentina. Whereas K.L. v. Peru concerned fetal anomaly, the applicant in L.M.R. v. Argentina was a rape survivor who had to resort to clandestine abortion. The HRC confirmed that, in that case, denying access to a safe and legal abortion amounted to cruel and inhuman treatment in violation of Art. 7 International Covenant of Civil and Political Rights [ICCPR]. Of special interest given the current climate are the cases against Poland before the ECHR. In P. and S. v. Poland it was held that because of the applicant’s great vulnerability as a rape victim the lack of objective counselling and delay of abortion services constitutes cruel, inhumane, and degrading treatment.
Obstruction of Access to Abortion and the Right to Private Life
The HRC as well as the ECHR stated in the above-mentioned cases that the denial of abortion services also violates the right to private life (Art. 17 ICCPR, Art. 8 ECHR). Notably in A.B.C. v. Ireland the ECHR stated that although it is “physically and psychologically arduous” for the applicants to travel to another country for an abortion, this does not implicate a violation of Art. 8 ECHR (paras. 163-165). However, this case is fundamentally different to the situation of Ukrainian women seeking abortion as it did not concern the question of access to abortion after rape. This was addressed in P. and S. v. Poland where the Court stated explicitly that because Poland has legalized abortions after rape it is obliged under Art. 8 ECHR to ensure that abortions are actually available to the rape survivors.
Obstruction of Access to Abortion and the Right to Health
The right to reproductive and sexual health is considered to be an integral part of the right to health, as enshrined in Article 12 International Covenant of Economic, Social and Cultural Rights. In 2016 the Committee on Economic, Social and Cultural Rights stated clearly in its General Comment No. 22 that States are required to adopt all measures necessary to ensure the full realization of this right. According to the Committee this includes safe abortion services as well as physical and mental health care for survivors of sexual violence.
In addition, Article 12 Convention on the Elimination of Discrimination against Women [CEDAW] provides the obligation for state parties to “take all appropriate measures to eliminate discrimination against women in the field of health care […], including those [health care services] related to family planning”. L.C. v. Peru concerned a teenager who was being denied an abortion in hospital after getting sexually abused and subsequently pregnant. The CEDAW Committee held that this constituted a violation of Article 12 CEDAW, because although in Peru abortions after rape were legalized the applicant „did not have access to an effective and accessible procedure” (para. 8.15).
Poland’s Unlawful Obstruction of Ukrainian Rape Victims’ Access to Abortions
In early summer of 2022, the Human Rights Monitoring Team of the UN had received 124 reports of alleged acts of conflict-related sexualized violence against women in Ukraine, amongst which were multiple cases of gang rape. But Poland’s abortion policies make it almost impossible for victims to obtain abortions.
Poland’s abortion laws have become increasingly rigid over the past years. In 2020, a ruling of the Polish Constitutional Court declared abortions unconstitutional even in cases of severe fetal malformations. Even though there are exceptions in cases when the pregnancy poses a danger to the life of the pregnant person and, until the 12th week of the pregnancy, in cases where the pregnancy is the result of rape or incest (Act of 7 January 1993), in reality, it is practically impossible for Ukrainian refugees to terminate the pregnancy. To be eligible for an abortion, a criminal investigation has to verify rape. Aside from the psychological toll this takes on survivors, such investigations can be lengthy. Especially in the case of Ukrainian refugees who were subjected to rape by Russian soldiers, it becomes painfully obvious that obtaining a criminal conviction in time is merely impossible. Moreover, anyone assisting a pregnant person in having an abortion can be prosecuted under Polish law and subjected to 3 years of imprisonment, which results in chilling effects. Some women resort to illegally imported abortion pills, thereby foregoing their right to access much needed post-abortion care provided by medical professionals. Other women seek abortions in neighbouring countries. However, both travelling across borders as well as illegally imported abortion pills are not adequate alternatives to abortions in hospital and further proves that Poland has failed to provide effective access to abortion for Ukrainian rape victims.
In fact, the above overview of the jurisprudence of the ECHR, the HRC, and the CEDAW showed that States are obliged to set effective and accessible procedures in place and “must not structure its legal framework in a way which would limit real possibilities to obtain an abortion” (P. and S. v. Poland, para. 99). Thus, by failing to ensure access to abortions for Ukrainian refugees, Poland is in violation of its human rights obligations. Denying survivors of rape access to safe abortion not only causes detrimental effects on their mental health but also forces them to resort to unsafe abortion practices. There is nothing more intimate than the freedom to exercise bodily autonomy and the decision whether to carry out a pregnancy. Women who have become victims of rape have already been robbed of their sexual self-determination once. Denying survivors of rape access to safe abortions is nothing short of a second act of violence against these women.