War against Women

The Orders of the International Court of Justice (ICJ) regarding the Israeli military operation in Gaza have been widely discussed from numerous perspectives (see here, here, and here). However, the gendered impacts of the Gaza War have received little attention, which surprises given Germany’s feminist foreign policy.

Feminist international law examines the gender-specific causes, modalities, and impacts of events relevant to international law. When assessing the ICJ Order in the case of South Africa v Israel from 26 January 2024, as well as the underlying Israeli military operation in Gaza since 9 October 2023, from a feminist perspective, several categories emerge. First, the gendered impacts of Israel’s military attacks, displacement, and the imposed siege resulting in inadequate access to humanitarian aid; and second, the gender-specific modality of genocide “imposing measures intended to prevent births within the group” outlined in Article II (d) of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). This post aims to shed light on this dimension and argues that the lack of media coverage and legal commentary is particularly critical given the growing international recognition of reproductive violence as part of international crimes and in the context of German feminist foreign policy.

Gendered Impact

Women, girls, and children are among the most vulnerable groups in this conflict. By 29 April 2024, the Israeli military operation in Gaza had resulted in 34,488 Palestinian deaths, including 14,500 children and 9,500 women, accounting for 70% women and children. On average, 63 women, including 37 mothers, were killed daily. Since the start of the war in Gaza, an estimated 17,000 Palestinian children have been orphaned. Of the over 77,000 injured Palestinians, an estimated 75% are female. In light of these drastic figures, UN Women refers to it as a “war against women.”

Moreover, the displacement of 1.7 million Palestinians, ostensibly gender-neutral, has gender-specific impacts. According to reports, while on the displacement journey, women face risks of arbitrary detention and harassment. For families with elderly relatives or family members with disabilities who cannot move, it is women who disproportionately stay behind as caregivers. According to UNFPA and UN Women, nearly one million women and girls live in overcrowded shelters lacking adequate water, sanitation, and hygiene facilities, as well as limited privacy for menstrual hygiene management for over 690,000 women and girls. This leads to increased health risks, particularly for the estimated 155,000 pregnant, birthing, postpartum, or breastfeeding women. Furthermore, the lack of menstrual hygiene products increases the risk of infection for women and girls.

Women and children are especially vulnerable due to family separation and the consequent loss of protection amidst the increasing presence of Israeli forces and widespread gender-based violence. This heightened protection risk is not to be underestimated in the context of the total collapse of law enforcement.

Similarly, the siege ordered by Prime Minister Netanyahu resulting in inadequate access to humanitarian aid has gender-specific impacts. 1.1 million people in Gaza are affected by a “catastrophic level of food insecurity,” with 677,000 on the brink of famine. One in three children under the age of two suffers from acute malnutrition. Women are typically more affected by famine as they tend to deprioritize their food intake when access to food is restricted. Additionally, pregnant, birthing, postpartum, or breastfeeding women are more severely affected by malnutrition, lack of medical care, and medications due to their significantly higher needs.

Gender-Specific Modality of Genocide

Given this “gendered impact” of the war, it is not surprising that South Africa’s application has placed significant emphasis on the gender-specific modality of genocide in Article II lit. d of the Genocide Convention:

“In this Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (…)

d. Imposing measures intended to prevent births within the group.”

This form of genocide falls within the category of largely unrecognized reproductive violence aimed at protecting reproductive autonomy. The Office of the Prosecutor of the International Criminal Court (ICC) issued a policy on gender-based crimes in December 2023, entailing a definition of reproductive violence. Accordingly, “reproductive violence violates reproductive autonomy and/or it is directed at people on account of their actual or potential reproductive capacity, or perceptions thereof.”

While other forms of reproductive violence have started being prosecuted as crimes against humanity or war crimes, there has not yet been a finding of the gender-specific modality of genocide before the ICJ, ICC, or ad-hoc criminal tribunals. The International Criminal Tribunal for Rwanda in its Akayesu judgment obiter dictum was the first to determine that measures aimed at preventing births within the group could be both physical and mental. Physical or direct measures include “sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes, and prohibition of marriages” (para. 507). Mental or indirect measures include “rape intended to prevent births if the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate” (para. 508).

Gender-Specific Genocidal Measures in Gaza

In its application of 29 December 2023, South Africa claimed that Israel imposed measures on members of the Palestinian nation in Gaza aimed at preventing births within the group. This included the killing of pregnant women by Israeli soldiers, including during attempts to access health services, as reported by Al Jazeera and The New Arab (para. 95). According to WHO, an estimated 5,500 pregnant women give birth each month in Gaza under unsafe conditions without access to medical care, posing significant infection and medical complication risks (para. 96). The UN reported that due to the lack of medical supplies, pregnant women undergo C-sections without anesthesia, and doctors are forced to perform unnecessary hysterectomies on young women to save their lives, preventing them from having more children (paras. 96-97). Oxfam reported a 25-30% increase in premature births and the doubling of cases of placental abruption (para. 98). OCHA reported a rapid increase in the mortality rate of premature infants due to the lack of necessary medical equipment, especially incubators and fuel for hospital generators, leading to deaths from preventable causes such as diarrhea or hypothermia (para. 99). Additionally, WHO warned that inadequate care leads to increased maternal mortality and stress-related miscarriages, stillbirths, and premature births (para. 100).

The targeted attacks on hospitals, the debilitation of the healthcare system, and the restriction of humanitarian aid deny Palestinians access to reproductive health care and constitute a form of indirect measures to prevent births. Although it is not required under Article II (d) of the Genocide Convention that an actual reduction in births occur, since the article merely refers to the imposition of measures intended to prevent births (see Prof. Kress), the measures imposed by Israel have nevertheless resulted in a reduction of births in Gaza. In January 2024, it was reported that the miscarriage rate in Gaza had increased by 300%, and in November 2023, the WHO reported an increase in maternal mortality and stress-related miscarriages, stillbirths, and premature births in Gaza.

On the merits stage, South Africa will have to convince the ICJ that Israel intentionally imposed the aforementioned measures to prevent births and aimed to destroy the Palestinian group in whole or in part. At the provisional measures level, the ICJ undertook an assessment of the “plausibility of rights” and referenced a possible genocidal intent by Israel by referring to the following statements: Defense Minister Gallant’s order for the “complete siege” of Gaza City with no “electricity, food, or fuel”; his description of opponents as “human animals”; President Herzog’s statement that “[i]t is an entire nation out there that is responsible. It is not true this rhetoric about civilians not aware, not involved. It is absolutely not true. They could have risen up. They could have fought against that evil regime which took over Gaza in a coup d’état. But we are at war. […] And we will fight until we’ll break their backbone.”; and Energy Minister Katz’s statement that “[w]e will fight the terrorist organization Hamas and destroy it. All the civilian population in [G]aza is ordered to leave immediately. We will win. They will not receive a drop of water or a single battery until they leave the world.” (ICJ Order, para. 52-53).

Interestingly, this aspect of South Africa’s complaint has received little attention, despite the widespread public interest in the decision itself.

Conclusion

Despite these shocking facts, the specific gendered suffering of Palestinians in Gaza is hardly acknowledged or lamented by western feminists, with few exceptions (e.g., Fionnuala Ni Aolain, Ruby Mae Axelson).

The reasons for the deafening silence of western feminists may vary: One reason could be the narrowly perceived German historical responsibility in light of the Holocaust, often leading to blind solidarity with Israel, with criticism often seen as a betrayal of the lessons from Germany’s history. Additionally, the fear of anti-Semitism accusations leads many feminists to remain silent. Another issue is that some feminists adhere to the narrative – similar to the US invasion of Iraq or Afghanistan – that Israel is liberating Palestinian women from patriarchal structures, and thus avoid criticism of Israel to not be seen as supporting patriarchal structures. Moreover, media coverage in Western outlets privileges certain narratives and marginalizes others, making the gendered impacts of the conflict less visible. The statement of the German Association of Women Lawyers, which condemns gender-based violence in this conflict, albeit one-sidedly in favor of Israel, shows that a condemnation of gender-based violence is generally possible.

This silence is particularly contradictory in the context of Germany’s feminist foreign policy, which aims to overcome mechanisms of oppression and discrimination in international power relations and highlights the importance of reproductive rights. Given that feminist foreign policy is peace policy, abstaining from voting on resolutions for a ceasefire in the UN General Assembly is puzzling. A critical examination of these factors is necessary to break the silence and find a more solidary feminist stance.