Overview

It is imperative that the 2019 Draft articles on Prevention and Punishment of Crimes Against Humanity (the “Draft Crimes Against Humanity Convention”) protect the value of “reproductive autonomy,” meaning the right of every individual to exercise agency over their fertility; their choice about whether, and in what circumstances, to reproduce.

Rights related to reproductive autonomy are protected in international and regional human rights instruments. In addition, the International Criminal Court (ICC) Trial and Appeals Chambers have affirmed that reproductive autonomy is the distinct value protected by the crime against humanity of forced pregnancy, demonstrating that this value is already embedded in international criminal law.

However, forced pregnancy is only one of many violations of reproductive autonomy that impinge upon a person’s physical integrity and offend their human dignity. To be relevant to the lived experience of people whose reproductive autonomy is imperiled, particularly women and girls, the Draft Crimes Against Humanity Convention should protect against such violations by:

• Amending draft Article 2(1)(g) to refer to: “Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual or reproductive violence’’ (proposed additional text bolded);
• Removing the redundant and potentially confusing reference to national laws from the existing definition of forced pregnancy in draft Article 2(2)(f); and
• Using gender-inclusive language (“woman, girl, or other person” instead of “woman”) in the definition of forced pregnancy in draft Article 2(2)(f).

For each proposed revision, this brief first summarizes the issue at a high level, provides detail on the reasoning and related jurisprudence in the following section, and is followed by the proposed recommendation.