Forced pregnancy in the International Criminal Law

Abstract

The main purpose of this paper is to examine the crime of forced pregnancy within the framework of the International Criminal Law (ICL). The author notes that acts of sexual violence, including forced pregnancy, have long been neglected in the system of international criminal justice. The crime of forced pregnancy has particularly been one of the most controversial issues during the negotiations regarding the text of the Rome Statute of the International Criminal Court (ICC). Delegations from several states that prohibit abortion were concerned that the adoption of the crime will expose their nationals to the criminal prosecution for forced pregnancy. A solution was a compromise which moved the crime of forced pregnancy away from the original concept of its proponents - an emphasis of the crime, as it stands in the Rome Statute, is not on the denial of the abortion for women which have been forcibly made pregnant, but rather on the (physical) confinement of such women. Also, the result is a definition that is too complex to be of significant practical value, a demonstration of which is the fact that the ICC has just recently made its first judgement regarding the crime of forced pregnancy, even though this crime has been in the Rome Statute for more than twenty years. Having that in mind, the author argues that the crime of forced pregnancy is a classic example of the "overextension" of the ICL. Namely, the ICC should be responsible for prosecuting only the most serious international crimes which are of concern for the international community. Clearly, as it has been demonstrated in the Rome Conference, various states have very different opinions on this issue. Besides these topics, the author has also pointed out that the crime of forced pregnancy, within a framework of crimes against humanity and war crimes, is a distinct crime in relation to the crime of genocide. The main difference between those two crimes is in their material element.