After The Silence | A Queer Blog

ABSTRACT

Addressing sexual violence is central to the contemporary era of international criminal law; however, the Rome Statute's capacity to prosecute perpetrators of forced pregnancies remains severely constricted. In the context of legal interpretation shaped by various statutes and judicial decisions, justice cannot be realised without adequate protection against sexual violence, with an emphasis on forced pregnancies. The paper aims to critically analyse the Rome Statute's failure to protect intersex persons from the offence and to compare the definition of this offence in the Statute with the frameworks of the Maputo Protocol and the Statute of the Special Court for Sierra Leone. The paper adopts a doctrinal methodology by analysing the circumscribed definition of the crime in the Statute and provides a critical comparison against the broader normative frameworks analysed that protect against it. The paper seeks to emphasise how the gendered definition of forced pregnancy in the Statute violates the principles of justice and equality, thereby arguing for a more inclusive definition. Recommendations are suggested for the Statute from this perspective.

Key Words: Reproductive Justice, Rome Statute, Forced Pregnancy, Intersex Rights, International Criminal Law

1. INTRODUCTION

1.A THE RESEARCH PROBLEM, ITS SCOPE AND SIGNIFICANCE

Intersex persons are those persons who are born with reproductive or sexual anatomy that cannot be classified as male or female. Statistics reveal that approximately 1.7% of the population is born with intersex traits, thereby necessitating adequate statutory protections to uphold their rights and dignity.

Sexual violence are acts of a sexual nature where consent is not freely given or obtained. The World Health Organisation, in its landmark report, has estimated that around 1 in 3 women have experienced sexual violence in their lifetime (840 million globally). Furthermore, the European Union Agency for Fundamental Rights, in its report, has revealed that 22% of intersex respondents have experienced some form of physical or sexual violence for being intersex in the five years before the survey, thereby necessitating statutory protections in order to uphold the rights and dignity of all intersex persons.

Presently, Article 7(3) of the Rome Statute explicitly excludes intersex persons from its ambit, therefore restricting the ability of the victim to seek justice under Section 7(2)(f) of the Statute that protects persons from the crime of forced pregnancy. To aid in remedying this malady, the paper critically analyses the Rome Statutes and provides a comparative perspective against broader normative frameworks such as the Maputo Protocol and the Statute for the Special Court of Sierra Leone to suggest amendments to the Rome Statute.

1.B RESEARCH OBJECTIVES

a) To critically analyse the Rome Statute's failure to protect intersex persons from the crime of forced pregnancy.
b) To compare the Rome Statute's definition of forced pregnancy with the frameworks of the Maputo Protocol and the Special Court for Sierra Leone.
c) To evaluate how the Statute's current gendered definition undermines fundamental principles of justice and equality.
d) To propose legal reforms for a more inclusive definition of forced pregnancy that aligns with reproductive justice standards.

1.C METHODOLOGY

The paper has employed a qualitative, comparative, and doctrinal legal methodology by critically analysing primary sources, including the Rome Statute, the Statute of the Special Court for Sierra Leone, and the Maputo Protocol. These primary sources are supplemented by multiple secondary sources, including scholarly articles, academic journals, and reports from governmental and non-governmental organisations.

2. HISTORICAL PERSPECTIVE OF THE CRIME OF FORCED PREGNANCY

2.A EVOLUTION OF INTERNATIONAL HUMANITARIAN LAW ON THE CRIME OF FORCED PREGNANCY

One of the earliest international humanitarian instruments that criminalised sexual violence was Article 27 of the Fourth Geneva Convention, which states that "Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault". However, the convention's emphasis on the honour of women has been criticised for focusing more on social morality rather than the victim's physical and reproductive autonomy. The Vienna Declaration & Programme of Action is one of the first international instruments to recognise the crime of forced pregnancy under Section 3, Paragraph 38 (The equal status and human rights of women), which classified the offence as a violation of women's human rights. However, the Statute of the Special Court for Sierra Leone has become quintessential in upholding reproductive rights of every person by adopting gender neutral language while defining the crime of forced pregnancy under Article 2(g) of the Statute for the Special Court. These international humanitarian instruments are further supplemented by various gender-neutral domestic provisions that concurrently protect against the crime.

2.B ETHNIC CLEANSING AND THE ICTY

Ethnic cleansing is the attempt to create homogenous geographical areas through means such as deportation or forcible displacement and may involve sexual violence- which provides persons in authority with the power to violate the rights and dignity of the victims. The crimes against humanity (ethnic cleansing) that took place in the erstwhile state of Yugoslavia led to the establishment of the International Criminal Tribunal for the Former Yugoslavia ("ICTY"), in order to prosecute the perpetrators of those crimes. Such crimes included gender based violence, such as organised rapes and torture. The ICTY has set a precedent by prosecuting and convicting 48% of the individuals on trial (78 individuals) who had sexual violence charges included in their indictment, thereby upholding the dignity of the victims. The ICTY in The Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković held perpetrators of sexual violence accountable, and is the first case in international legal history to focus solely on crimes of sexual violence, acknowledging that rape and sexual enslavement were crimes against humanity.

2.C THE CODIFICATION OF THE ROME STATUTE

During the drafting of the Rome Statute at the Rome Diplomatic Conference, there were significant disagreements-particularly with the Arab states and the Holy See- over the definition of gender under Article 7(3) of the Statute. The opposing states made their strong views on gender being binary and based on biology, and thereby excluding "dubious interpretations based on world views which assert that sexual identity can be adapted indefinitely to suit new and different purposes". Prior to the adoption of the Rome Statute, the term 'gender' remained undefined in United Nations multilateral human rights documents for more than a decade, thereby setting an irresolute precedent for its definition. It is widely held that the Rome Statute's constricted definition of gender is not aligned with the standards of contemporary international humanitarian law, thereby necessitating critical amendments to the statute to aid in remedying this malady and facilitate justice to the victims of these offences.

3. CRITICAL ANALYSIS OF THE ROME STATUTE

The Rome Statute was enacted in 1998 in order to prosecute those accused of war crimes, genocide and crimes against humanity. The International Criminal Court was established under the statute and empowered to investigate and, where warranted, try- individuals charged with the gravest crimes, thereby ensuring that the principles of equality and non-discrimination are upheld.

3.A INTERPRETATIVE SCOPE OF ARTICLE 7(2)

Section 7(1)(g) of the Statute criminalises the offence of forced pregnancy and defines it to be a crime against humanity. This is further supplemented by Section 7(2)(f) of the Statute defines forced pregnancy as "the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law". Furthermore, Article 7(3) of the Statute defines gender to be restricted to only the two sexes, id est male and female, thereby explicitly violating the principles of natural justice.

Amnesty International, in its Commentary on the Crime in International Law on Forced Pregnancy, has acknowledged that the crime of forced pregnancy ought to include girls, women, transgender persons, intersex persons and every person who is biologically capable of becoming pregnant. The binary definition of sex in the statute is alleged to be the result of the interference of religious states during the drafting of Article 7(3) due to biases against the LGBTQ+ community. However, a pivotal turning point in the interpretation of the statute can be seen with the historic precedent set in the Afghanistan arrest warrants case of 2025, wherein an international tribunal, for the first time, recognised "LGBTQI+ victims of crimes against humanity, namely gender persecution".

3.B BIOLOGICAL ESSENTIALISM OF THE ROME STATUTE

Article 7(3) of the Statute explicitly excludes intersex persons from its ambit, thereby creating a statutory gap that effectively prevents the protection of intersex persons from the offence of forced pregnancy. Intersex persons are born with sex organs that do not typically fit binary notions of male and female bodies, with around 1.7% of the global population reported to be born with intersex traits. It is well established that some intersex persons are capable of becoming pregnant, thereby requiring appropriate protections under the Statute.

Furthermore, the statute fails to make a distinction between gender and sex, which further contributes towards the circumscribed definition of the crime of forced pregnancy. The World Health Organisation defines sex as "the different biological and physiological characteristics of males and females, such as reproductive organs, chromosomes, hormones, etc.", whereas, the term gender is defined as "the socially constructed characteristics of women and men such as norms, roles and relationships of and between groups of women and men. It varies from society to society and can be changed", thereby making a distinction between biology and social construct. The distinction between gender and sex ensures that adequate protection is given to those intersex persons who may identify as male or female, thereby ensuring that the principles of natural justice have been upheld.

3.C THE EXCLUSION OF INTERSEX VICTIMS

The circumscribed definition of sex in the Rome Statute that was adopted by the International Law Commission at its 69th session has been criticised for its lacuna in the recognition of intersex persons, holding that the definition of gender in the Statute does not align with international human rights law. Furthermore, the comments by Costa Rica on the International Law Commission's draft articles on crimes against humanity similarly criticise Article 7(3) of the Statute for its constricted definition of gender and advocates for a more inclusive definition of gender, holding that gender is not merely constricted to biology, but rather a social construct. Statistics by the European Union Agency for Fundamental Rights have revealed that 1 in 6 (15%) of intersex persons in the European Union had been physically or sexually assaulted in the year before the survey, and an alarming 1 in 3 (34%) in the five years before the survey.

However, there is a notable shift towards a more inclusive definition of gender, with the Office of the Prosecutor and the recent ruling in the Al Hassan case interpreting gender as socially defined roles and behaviours rather than a strict biological basis, thereby permitting more inclusive definitions to replace archaic ones.

3.D CRITICAL COMPARISON AGAINST PRINCIPLES OF EQUALITY AND NON-DISCRIMINATION

The exclusion of intersex persons from the ambit of the offence of forced pregnancy under the statute constitutes an egregious violation of Article 7 of the Universal Declaration of Human Rights, 1948, which stipulates that everyone is equal under the law and further articulates the right to equal protection against any discrimination. Furthermore, Article 26 of the International Covenant on Civil and Political Rights stipulates that all persons are equal under the law and have a right to seek protection under it without any discrimination.

The European Court of Human Rights in Semenya v. Switzerland has held that intersex persons cannot be discriminated against, holding that Switzerland had violated Semenya's human rights due to violation of Article 14 of the European Convention of Human Rights. Furthermore, the exclusion of intersex persons from the Rome statute is in violation of the Resolution adopted by the Human Rights Council on Combating discrimination, violence and harmful practices against intersex persons, which reaffirmed the human rights of intersex persons. Moreover, the European Union Agency For Fundamental Rights has affirmed the rights of intersex persons and their right to equality in the Fundamental Rights Situation of Intersex People. It is therefore imperative that intersex persons be included under the offence of forced pregnancy under the Rome Statute in order to uphold the basic tenets of the right to equality and non-discrimination that have been established by various statutory and judicial instruments.

4. COMPARATIVE ANALYSIS OF INTERNATIONAL FRAMEWORKS

4.A THE MAPUTO PROTOCOL

The Protocol to the African Charter on Human and Peoples' Rights of Women in Africa, 2003, was the result of years of lobbying by women's rights activists for statutory protection to promote and protect women's rights across the African continent. The protocol strengthens the status of women's rights that have been affirmed in various other international and regional instruments and is the first instrument in international law that protects women's sexual and reproductive rights to abortion when a pregnancy occurs due to rape or incest, or when the pregnancy may endanger the health of the mother under Article 14(2)(c).

Article 1(k) of the protocol defines women as persons of female gender rather than sex, thereby referring to the socially constructed and gendered roles and behaviours expected of the different sexes rather than to an individual's physical and biological aspects. This provision allows for intersex persons identifying as female to pursue justice.

In furtherance of the Protocol's objective of affirming and strengthening the rights of women, Article 4(2)(a) mandates the States Parties to the Protocol to take necessary measures to prohibit all forms of violence against women, with a special emphasis on forced sex.

The protocol has successfully addressed the issues in the imbalance in power dynamics between men and women and how they impact the rights of women in Africa by explicitly providing sexual health and reproductive rights. However, there still exists a lacuna in the recognition and protection of intersex persons who do not identify as female, thereby creating a statutory gap that renders numerous intersex persons vulnerable to sexual violence. Furthermore, the failure of the Protocol to provide explicit recognition and protection to intersex persons identifying as female weakens its objective of securing and affirming reproductive rights throughout the African continent.

4.B STATUTE FOR THE SPECIAL COURT OF SIERRA LEONE

The process of drafting the Statute for the Special Court of Sierra Leone began in the mid-2000s, with the Government of Sierra Leone requesting the United Nations Secretary-General's assistance in establishing a court to try offences committed during Sierra Leone's civil war. The court is managed by a committee composed of representatives of the countries that contributed to it and is not bound by either the United Nations or the Sierra Leone rules of employment.

The Special Court has a mandate to focus on crimes against humanity, which are defined as "crimes that constitute a pattern of widespread and systematic attack against any civilian population". Article 2(g) is seen under this mandate wherein the Special Court is explicitly conferred powers to prosecute for the crimes of rape, sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence, and classifies these crimes as crimes against humanity. The statute epitomises the transition towards gender-neutral laws by ensuring that all perpetrators, irrespective of gender, can be prosecuted, and all victims, irrespective of gender, can receive justice for the atrocities they have faced.

However, there remains a principal threat of inadequate funding that may destabilise the achievement of the court's legacy objectives. The Special Court's inability to raise the funds needed to fulfil its mandate to try all those alleged to have committed crimes in Sierra Leone raises questions about its ability to implement some of its legacy projects.

4.C COMPARATIVE PERSPECTIVE

A comparative analysis of the Rome Statute and Maputo Protocol has revealed that Article 7(3) of the Statute overtly excludes intersex persons from its ambit by classifying sex and gender as analogous to each other and defining the word sex to mean either male or female. However, this is contrasted with Article 1(k) of the Protocol, which defines women to be anyone of the female gender, thereby rejecting the notion that gender is based on a biological basis and reinforcing the norm of gender being a social construct. The fluid definition of gender under the Protocol creates a pathway for those intersex persons identifying as female to seek justice for offences committed against them.

A critical analysis of the Rome Statute and the Statute for the Special Court of Sierra Leone demonstrates the liberal construction of the crime of forced pregnancy. This is demonstrated under Article 2(g) of the Statute of the Special Court, which uses gender-neutral language to define who can be protected under it, thereby ensuring equality for all and permitting intersex persons to seek remedies against offences committed against them. The Statute for the Special Court remains quintessential in demonstrating the right to equality and non-discrimination, which reaffirms the rights of intersex persons.

5. CONCLUSION

The Rome Statute's circumscribed definition of forced pregnancy prevents intersex persons' access to justice due to Article 7(3)s restricted definition of gender to only include two sexes id est male and female, thereby explicitly excluding intersex persons from its ambit. Furthermore, Article 7(2)(f) of the Statute permits only women to seek a remedy for the crime, thereby undermining the right to equality and non-discrimination of all intersex persons. However, the definitions of forced pregnancy under the Maputo Protocol and the Statute for the Special Court of Sierra Leone permit a fluid definition of gender, which is aligned with the principles of equality and non-discrimination. The Rome Statute notwithstanding its role in recognising the crime of forced pregnancy- continues to follow an archaic and politicised definition of gender. To ensure access to reproductive justice, it is imperative to amend Article 7(3) of the Statute to make a distinction between gender and sex and adopt the use of gender neutral language in its definition of forced pregnancy under Article 7(2)(f) in order to replace the archaic definitions in the Statute to align with contemporary human rights standards.

6. RECOMMENDATIONS

Drawing from the conclusion, the following recommendations are suggested to harmonise the Rome Statute with contemporary standards of reproductive justice and intersex rights:

i) Article 7(3) of the Rome Statute be amended to replace the binary definition of gender with a more inclusive formulation that recognises gender as a social construct, thereby ensuring that intersex, transgender, and non-binary persons are not conceptually excluded from the Statute's protective ambit.
ii) Article 7(2)(f) be amended to replace the term woman with person to ensure that the crime of forced pregnancy is gender-neutral and protects all individuals capable of pregnancy, including intersex persons, from the atrocities of reproductive violence.
iii) The issuance of a Policy Paper on Reproductive Justice by the ICC Office of the Prosecutor (OTP) that provides clear interpretative guidance on the inclusion of intersex victims, building on the precedent of the 2025 Afghanistan arrest warrants to recognise gender-based persecution beyond the biological binary.
iv) The saving clause in Article 7(2)(f) regarding national abortion laws be revised or clarified to ensure that deference to domestic legislation does not serve as a barrier to prosecuting the core harm of forced pregnancy-the violation of a victim's personal and reproductive autonomy.

REFERENCES

Primary Sources

International Treaties and Instruments

Convention for the Protection of Human Rights and Fundamental Freedoms (opened for signature 4 November 1950, entered into force 3 September 1953) 213 UNTS 221 (ECHR)
Copenhagen Declaration on Social Development and Programme of Action of the World Summit for Social Development (6-12 March 1995) UN Doc A/CONF.166/9
Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171
Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (adopted 11 July 2003, entered into force 25 November 2005)
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Circumscribing Reproductive Justice: A Comparative & Doctrinal Analysis Of Forced Pregnancy Under The Rome Statute