Publications

We have witnessed unfathomable death and destruction in the Gaza Strip and Israel. Thousands of people have been killed, injured, displaced, and nearly two hundred remain held hostage, including children and elderly. In Gaza, the UN has said that water, food, fuel, medical supplies, and even body bags, are running out due to the siege. The UN warned that people – particularly young children – will soon start dying of severe dehydration. Neighbourhoods have been destroyed and turned into complete rubble. Palestinians in search of safety have nowhere to go. Many of those who relocated from northern Gaza to the south after the relocation order by the Israeli army were reportedly bombed as they attempted to flee or once they arrived in southern Gaza.   The events of the last week have led us to the precipice of a humanitarian catastrophe and the world can no longer wait to act. It is our collective responsibility. On Sunday, October 15th, the United Nations Humanitarian Coordinator to the Occupied Palestinian Territory appealed to all parties to the conflict, and to Member States with influence, to urgently agree to a humanitarian ceasefire. Today, we put our voices together and call on all Heads of State, the UN Security Council, and actors on the ground, to prioritize the preservation of human life above all else. During this ceasefire, we call on all parties to unconditionally: Facilitate the delivery of lifesaving assistance, including food, medical supplies, fuel, and the resumption of electricity and internet to Gaza, in addition to safe passage of humanitarian and medical staff   Free all civilian hostages, especially children and elderly Allow humanitarian convoys to reach UN facilities, schools, hospitals, and health facilities in northern Gaza and commit to protecting them along with the civilians and staff inside them at all times Rescind orders by the Government of Israel for civilians to depart northern Gaza Allow patients in critical condition to be medically evacuated for urgent care The UN Security Council, the UN Secretary General and all world leaders with influence must take immediate action to ensure a ceasefire comes into effect. It remains our only option to avert further loss of civilian life and humanitarian catastrophe. Anything less will forever be a stain on our collective conscience. Civilians are not bargaining chips. Families need a chance to bury and mourn their dead. The cycle of violence against innocent civilians needs to stop.

On 11 November 2019, the Republic of The Gambia filed suit against the Republic of the Union of Myanmar in the International Court of Justice (“ICJ”) for violating the Genocide Convention. Two months later at the request of The Gambia, the ICJ ordered the government of Myanmar to take certain actions to protect the Rohingya via “provisional measures” while the case proceeds. This historic lawsuit brings a critical focus to Myanmar’s responsibility as a state for the Rohingya genocide.

Amidst new and renewed attacks on sexual and reproductive health and rights, it is more important than ever for humanitarian aid policies to explicitly include abortion services. Lack of Services is Life-Threatening Women’s bodies have become part of the modern battlefield. This is true both in the literal battlefield, where conflict-related sexual violence is as prevalent as ever,[1] as well as in the political battlefield, where reproductive freedom is increasingly under siege. Today, women and girls facing pregnancies from war rape rarely receive abortion services.[2] The gap in services is the result of draconian funding restrictions, lack of clear donor guidance, and misunderstandings about the protections afforded under international law.[3] When safe abortion services are unavailable, war rape survivors face life-threatening pregnancies which can lead to serious physical injury, risk of suicide, and the incapability of many young persons’ bodies to safely carry a baby to term.[4] International Law Protects Abortion Services As a legal matter, armed conflict is a specific type of humanitarian setting, governed by a specific area of law—international humanitarian law (IHL). IHL ensures victims of armed conflict receive the medical care they need by protecting them with rights. In cases of pregnancy, these rights require the option of abortion services.[5] As a matter of practice, many humanitarian donors and actors use a “needs-based” model—administering medical care to meet patients’ needs without regard to the legal framework. In light of reinvigorated global assaults on reproductive health, it is essential that needs-based approaches are bolstered by the strong rights-based protections embedded in IHL. Humanitarian actors, advocates and donors must ensure that their work and policies are grounded in victims’ rights so that victims’ needs are comprehensively met. IHL Rights Protecting Pregnant Persons in Armed Conflict Right to all necessary medical care based solely on patient’s condition and without adverse distinction based on sex As “wounded and sick” in armed conflict, pregnant women and girls must be provided “the medical care and attention required by their condition.”[6] In all cases, medical treatment should be as favorable to women as that granted to men.[7] The right does not mean that medical treatment for each sex must be identical. Instead, medical outcomes for the sexes must be the same and can be achieved through differential treatment.[8] IHL does not spell out the types of treatments that should be given, but only requires that they be those based on the condition of the patient.[9] In the case of pregnant persons in armed conflict, necessary medical care includes the provision of abortion services. For example, whereas the condition of a man raped by a stick requires surgery, the condition of a woman impregnated by a penis requires the option of abortion. Right to be free from torture and other cruel, inhuman and degrading treatment IHL prohibits “cruel treatment and torture” and “outrages upon personal dignity, in particular, humiliating and degrading treatment.”[10] “Torture” is defined as “severe physical or mental pain or suffering” on the basis of “discrimination of any kind.”[11] The definition of torture is intentionally ambiguous so as to allow for the inclusion of new acts, treatments and interpretations.[12] The denial of abortion services has been explicitly determined to cause serious mental and physical suffering constituting torture and other cruel, inhuman and degrading treatment in certain contexts.[13] Concrete Actions to Save Lives While the protection of abortion services under IHL has been increasingly recognized—including by the European Union, the UN Secretary-General, the UN Security Council, and the Inter-Agency Field Manual on Reproductive Health in Humanitarian Settings[14]—services are not comprehensively provided. To ensure war rape survivors receive the medical care they need, national governments and international organizations should: Adopt a policy recognizing that persons impregnated by rape in armed conflict have absolute rights to non-discriminatory and comprehensive medical care under IHL, including the option of safe abortion services. Sample Policy: “International humanitarian law governs situations of armed conflict and requires offering safe abortion services to guarantee the right to non-discriminatory medical care—failing to offer such services amounts to torture and inhuman treatment.” Implement this policy that guarantee the right to abortion access in armed conflict by: communicating the policy to all humanitarian aid partners; clearly informing partners of their obligations under IHL; and incorporating the policy into contracts, memoranda of understanding, and other agreements with humanitarian partners. Ensure humanitarian funds are segregated from those with restrictions on abortion care, including US humanitarian funds. Continue to stand up forcefully for abortion care in armed conflict as a matter of right in international and regional fora. Download Fact Sheet [1] See UN Secretary-General, Report of the Secretary-General on Sexual Violence in Conflict, U.N. Doc S/2019/280 (29 Mar. 2019). [2] See e.g. G. Burkhardt et al., Sexual violence-related pregnancies in eastern DRC: a qualitative analysis of access to pregnancy termination services, 20(10) Conflict & Health (2016). [3] See Burkhardt, supra note 2. [4] Dr. H. Liebling et al., Women and Girls Bearing Children through Rape in Goma, Eastern Congo: Stigma, Health and Justice Responses (2012); see Harv. School of Pub. Health & Physicians for Human Rights, The Use of Rape as a Weapon of War in the Conflict in Darfur, Sudan (2004), at 20. [5] Akila Radhakrishnan et al., Commentary, Protecting Safe Abortion in Humanitarian Settings: Overcoming Legal and Policy Barriers, Reproductive Health Matters, Nov. 2017. [6] Common Article 3 to the Geneva Conventions; Additional Protocol I to the Geneva Conventions, art. 10; Additional Protocol II to the Geneva Conventions, art. 7. [7] Geneva Convention III, art. 14; ICRC, Customary International Law Database, r. 110. [8] Common Article 3 to the Geneva Conventions; Additional Protocol I to the Geneva Conventions, art. 10; Additional Protocol II to the Geneva Conventions, art. 7. [9] Common Article 3 to the Geneva Conventions; Additional Protocol I to the Geneva Conventions, art. 10; Additional Protocol II to the Geneva Conventions, art. 7. See also Letter from Louise Doswald-Beck, Professor of International Law, to US President Obama, 10 Apr. 2013, https://bit.ly/2FkGUQK. [10] Common Article 3 to the Geneva Conventions. [11] Elements of Crimes for the ICC, Definition of torture as a war crime (ICC Statute, art. 8(2)(a)(ii) and (c)(i)). [12] Int’l Committee of the Red Cross, 1958 Commentaries to Geneva Convention IV, art. 3, at 38. [13] See Report of the Sp. Rapp. on torture, ¶ 46, U.N. Doc. A/HRC/22/53 (1 Feb. 2013); see also CAT Concluding Observations: Peru, ¶ 23; Committee against Torture, Concluding Observations: Chile, ¶ 7(m), U.N. Doc. CAT/C/CR/32/5 (14 June 2004); Human Rights Committee, General Comment No. 28, ¶ 11, U.N. Doc. CCPR/C/21/Rev.1/Add.10 (2000). [14] UK DfID, Safe & Unsafe Abortion, (2014), p. 9; United Nations Security Council, U.N. Doc. S/PV.7160 (25 Apr. 2014), at 15 (statement by France’s Mr. Araud); UNSC, U.N. Doc. S/PV.6984 (24 June 2013), at 48 (statement by Neth.); EU Commission, Letter from F. Mogherini and C. Stylianides in response to request of 39 MEPs for Commission to evaluate policy on abortions for victims of war rape, 11 Sept. 2015; R. Coomaraswamy, Preventing Conflict, Transforming Justice, Securing the Peace – A Global Study of the Implementation of UNSCR 1325, (2015), p.77; Inter-Agency Working Group on Reproductive Health in Crises, Minimum Initial Service Package 60, 161 (2011); Sphere Association, The Sphere Handbook: Humanitarian Charter and Minimum Standards in Humanitarian Responses 327, 331-332 (4th ed. 2018).

I. Intro The Global Justice Center, international human rights organization, welcomes the International Law Commission’s (“ILC”) decision to codify crimes against humanity to form the basis of a potential Convention. Unlike war crimes and genocide, crimes against humanity are not codified in a treaty outside the Rome Statute of the International Criminal Court (“Rome Statute”). The development of a treaty on the basis of the ILC’s draft articles presents the opportunity to monitor and enforce the provisions outside of the limited jurisdiction of the International Criminal Court (“ICC” or “the Court”) and to encourage states to enact national legislation. Given the unique and powerful opportunity the ILC has to combat impunity and codify progressive standards of international law, the Global Justice Center (“GJC”) believes it is essential to do more than merely replicate the language of the Rome Statute. We call on the ILC to take the opportunity to reflect the progress made and lessons learned in the 20 years since the Rome Statute was adopted, particularly with regard to gender. Specifically, we ask the ILC to reconsider for the purposes of the draft Convention, two specific instances where the Rome Statute has differential treatment of gender-related provisions relative to their non-gendered counterparts: (1) the formulation of the crime of forced pregnancy; and (2) the definition of gender. Download the Full Letter

2018 National Young Feminist Leadership Conference March 17, 2018 Washington, DC Text of Prepared Remarks “I think we all remember the image of Donald Trump, on his third day in office, surrounded by a group of white men, with Mike Pence looking anxiously over his shoulder, signing an executive order stripping women and girls around the world of their access to safe abortion services. And he didn’t just do it like Presidents before him—like Regan and George W. Bush—he did it bigly. And for once it wasn’t just posturing or an act to make up for his tiny “hands.” It really was huge. Where it previously only applied to US family planning funds, Trump expanded this censorship, the Global Gag Rule, to cover all US global health assistance—affecting up to $8.8 billion in funding, rather than $600 million. That was just day 3 and it was just the beginning. Well, actually it wasn’t. Our story actually begins in 1973 shortly after the Supreme Court’s decision in Roe v. Wade and with two men named Jesse Helms and Henry Hyde. In reaction to Roe, anti-choice actors in the United States consciously decided that if they couldn’t prevent a right to abortion, they would just make it a right that is impossible to access. Sort of the opposite of how we’ve treated the right to bear arms. A part of this plan was the enactment of statutory restrictions on funding for abortions both domestically—the Hyde amendment—and internationally—the Helms amendment. Together, these restrictions have acted for over 40 years to cause immeasurable harm to women and girls. The Hyde amendment prevents the use of US federal funds to pay for abortion services except in cases of rape, life, and incest. Like Hyde, the Helms amendment prevents the use of US federal funds—this time for foreign assistance—from being used to pay for, or “motivate,” abortion speech or services. The Helms amendment has continuously been in effect since 1973 and today applies to all foreign assistance, and unlike Hyde, without any exceptions for rape, incest or life endangerment. What does this mean? It means that in war zones in Nigeria and Iraq, where women and girls have been systematically raped by groups like ISIS and Boko Haram, women are denied abortion services, in violation of their rights under international human rights and humanitarian law. And that’s not all. Over the years, other restrictions have been added on to Helms to fully censor the provision of abortion with US foreign aid and at times directly and other times indirectly, with any aid. For example, the Siljander amendment prevents speech that lobbies “for or against abortion.” In short, any speech about abortion at all. These congressional restrictions that have continually been in effect are exacerbated by the Global Gag Rule when it’s in effect. While the Helms and Siljander amendments affect what can be done with US funds, the Global Gag Rule dictates what can be done with funds from any donor. First enacted by President Regan, the Gag Rule prevented the provision of abortion “as a method of family planning” or the “active promotion of abortion”—essentially covering every type of activity related to abortion service provision or speech—from information provided from a doctor to their patient, to research on unsafe abortion, to legal reform, to actual service provision, you name it, it’s probably prohibited by the Gag Rule. This has interfered with progressive reform of abortion laws, technical guidance around abortion and more all around the world, including in countries like Kenya and Malawi, where unsafe abortion is one of the main causes of maternal death. Reforming abortion laws isn’t just a moral or feminist prerogative—it’s a legal one. Human rights law is clear that restrictions on abortion violate a variety of human rights, including the right to life, the right to non-discrimination, the right to health, the right to information and the right to be free from torture, cruel, inhuman and degrading treatment. This is because human rights law recognizes what happens when women are denied access to or information about safe abortion services—they take unnecessary risks with their own lives to obtain one. Studies have long shown that the legal status of abortion has very little to do with overall abortion rates—however, the legality of abortion is tightly correlated with how safe abortion services are. Unsafe abortion is the only preventable cause of maternal mortality; yet despite this, 25 million unsafe abortions happen around the world annually. Simply put, abortion isn’t just a matter of choice, it’s often a matter of life or death. And conservative attitudes towards abortion, whether here at home or abroad, reflect a failure to understand that reproductive autonomy and choice are inextricably linked with women’s equality. Which brings us back to Trump…and Pence. The harm this administration has caused to women and girls in their 421 days in office, both here at home and around the world, has frankly been astounding. On the back of the reinstatement and expansion of the Gag Rule, this administration has also defunded the United Nations Populations Fund, the leading UN agency dedicated to sexual and reproductive health, gutted key offices related to the promotion of gender equality around the world, and even censored information about women’s reproductive health and rights in the State Department’s annual human rights reports. And that’s just internationally. Domestically, we continue to see severe roll-backs on abortion access. Emboldened by this administration (and perhaps its Supreme Court nominees), Mississippi just passed an (unconstitutional) 15-week ban on abortion this week. A study recently found that 58% of women of reproductive age currently live in a state that is considered hostile or extremely hostile to abortion rights. By contrast, only 30% of women live in states that are considered “supportive” of abortion rights. These attacks aren’t limited to the legislative level. At the Office of Refugee Resettlement, Scott Lloyd has used his power to deny young immigrant women in detention access to abortion, and in one case, considered attempting to “reverse” an abortion—a procedure not grounded in scientific evidence or medicine. Practices that may also likely amount to torture, cruel, inhuman and degrading treatment in violation of US abortions under international human rights law. The suppression of information and science is a reoccurring theme, whether it’s through provisions that compel speech from doctors like Dr. Parker here to provide women with false information about the dangers of abortion, or conversely, prevent doctors from providing information to women about their options or referral to safe services. Such mis- or dis-information is related to the same fear—that if women are able to access abortion freely and without significant barriers, they may discover that they can have safe, fulfilling sex lives and maintain control over their bodies, and their lives, at the same time. A terrifying thought indeed. So let’s go back to that photo. In the game of “Government Apprentice,” we seem to be playing, most if not all of those men in that photo will soon be gone. But we need to focus on how we are going to change that photo. We need to elect feminists who are unapologetically pro-choice. We need to elect people of color and young people. That way, the next time we see that photo the people look more like this panel and this room. And so that it’s about the signing of a piece of legislation that actually promotes women’s rights. Maybe even, dare I say it, provide public funding for abortion.

Executive Summary During the United States’ (“US”) second-cycle Universal Periodic Review (“UPR”), multiple recommendations were made with respect to US abortion restrictions on foreign assistance, including the Helms Amendment. The US has failed to take any action on these recommendations, and in fact, in 2017, the Trump Administration entrenched and expanded the scope of these policies further with the reinstatement of the Global Gag Rule (or “GGR”, officially termed “Protecting Life in Global Health Assistance”). This submission highlights continuing concerns over these US policies which impose blanket prohibitions on abortion services and speech, in violation of US obligations under international humanitarian law, international human rights law, customary international law, and UN Security Council Resolutions. Download PDF

GJC Vice-President, Akila Radhakrishnan, GJC Legal Fellow, Elena Sarver and GJC Staff Attorney, Grant Shubin published an article in Reproductive Health Matters. Abstract: Women and girls are increasingly the direct and targeted victims of armed conflict and studies show that they are disproportionately and differentially affected. However, humanitarian laws, policies, and protocols have yet to be meaningfully interpreted and adapted to respond to their specific needs, including to sexual and reproductive health services and rights. In particular, safe abortion services are routinely omitted from sexual and reproductive health services in humanitarian settings for a variety of reasons, including improper deference to national law, the disproportionate influence of restrictive funding policies, and the failure to treat abortion as medical care. However, properly construed, abortion services fall within the purview of the universal and non-derogable protections granted under international humanitarian and human rights law. This commentary considers the protections of international humanitarian law and explains how abortion services fall within a category of protected medical care. It then outlines contemporary challenges affecting the realisation of these rights. Finally, it proposes a unification of current approaches through the use of international humanitarian law to ensure comprehensive care for those affected by armed conflict. Read Full Article

Dear Vice-President Mogherini and Commissioner Stylianides, In September 2015, the European Commission laudably took a historic step in making clear that women and girls raped in armed conflict deserve equal medical protection under international humanitarian law (IHL). In response to Members of the European Parliament, you stated: “In cases where the pregnancy threatens a woman’s or a girl’s life or causes unbearable suffering, international humanitarian law and/or international human rights law may justify offering a safe abortion rather than perpetuating what amounts to inhumane treatment. Women and girls who are pregnant as a result of rape should first receive appropriate and comprehensive information and be provided access to the full range of sexual and reproductive health services.” Previously, the European Union’s position was that national abortion laws in conflict countries – not IHL – govern the scope of available care for women and girls in conflict settings. In 2015, the EU joined a growing chorus of human rights advocates, legal experts, United Nations bodies and national governments to acknowledge the primacy of IHL in conflict, including when it comes to safe abortion. The European Commission’s latest position also received wide cross-party support in a number of parliamentary resolutions and several Member States have voiced their support for this policy for its compliance with IHL. Unfortunately, since 2015, no steps have been taken to implement this policy. Download PDF

Thank you for the opportunity to present oral evidence to the APPG on Population, Development and Reproductive Heath today on the topic of Abortion Globally and in War Zones. I’m Akila Radhakrishnan, the Vice-President and Legal Director of the Global Justice Center, an international human rights organization focused on using international law to ensure women’s equality. Today, I would like to speak with you about how the UK can continue its excellent leadership in protecting abortion as a matter of women’s rights under international law, including through the funding of abortion services with its development and humanitarian aid. My presentation is divided into two sections. First, I will address the implications for the global sexual and reproductive rights landscape resulting from the reinstatement and expansion of the Global Gag Rule by US President Trump and why leadership by the UK and likeminded donors is even more critical today. Second, will I discuss how the UK can better ensure that girls and women affected by conflict—including those raped in war zones—receive the medical care they need and are entitled to, including abortion services. Download