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Intent to File on Forced Pregnancy - The Prosecutor v. Dominic Ongwen

Introduction

In response to the Appeals Chamber’s order, we respectfully seek leave to file amicus curiae observations on the Rome Statute’s definition of ‘forced pregnancy’, noting that this is the Appeals Chamber’s first opportunity to interpret this crime.

Expertise

Dr Rosemary Grey (lecturer, Sydney University Law School) is an expert in gender issues in international criminal law. Her publications include 13 peer-reviewed journal articles and her monograph Prosecuting Sexual and Gender-based Crimes at the International Criminal Court (Cambridge University Press, 2019). From 8 June to 8 September 2015, she worked with the ICC Office of the Prosecutor through the Internship and Visiting Professional Programme, where she assisted with legal research on topics including forced pregnancy. Women’s Initiatives for Gender Justice (WICJ) is an international women’s human rights NGO advocating for accountability for sexual and gender-based crimes through the ICC’s work, including with conflict affected communities in Uganda, since 2004. It is the successor of the Women’s Caucus for Gender Justice (1997-2003) that brought together over 300 women’s human rights advocates and organizations in the Rome Statute negotiations. Global Justice Center (GJC) is an international NGO advocating for justice and accountability for sexual and gender-based violence and violations of reproductive autonomy in situations including Syria, Myanmar, and others. Its 2018 report, Beyond Killing: Gender, Genocide, & Obligations Under International Law, was the first of its kind to offer a comprehensive gender analysis of the crime of, and international legal obligations surrounding, genocide. Amnesty International (AI) is a worldwide movement of people who campaign for internationally recognized human rights to be respected and protected, with over 50 years’ experience documenting and campaigning against human rights violations around the world.

First proposed argument: Irrelevance of national law

Art. 7(2)(f) of the Rome Statute states: ‘“Forced pregnancy” means 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. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.’ The Trial Chamber stated that the final sentence of Art. 7(2)(f) ‘does not add a new element to the offence – and is thus not reproduced in the Elements of Crimes – but allays the concern that criminalising forced pregnancy may be seen as legalising abortion. Mr Ongwen appears to argue that the Trial Chamber erred by interpreting the crime of ‘forced pregnancy’ without analysis of abortion laws in the state where the crimes occurred (Uganda). That argument is incorrect. National laws on abortion have no bearing on the Rome Statute’s definition of ‘forced pregnancy’. The second sentence of Art. 7(2)(f) does not make the ICC’s jurisdiction over ‘forced pregnancy’ dependent on national legislation, nor create an element of the crime. It simply affirms that the legality of the relevant conduct under national law is distinct from its legality under international law. This is true of all crimes in the Rome Statute, but was made explicit for forced pregnancy in order to satisfy states who were concerned that defining forced pregnancy as a crime in the Rome Statute would affect their legal ability to regulate abortion under national law. Thus, regardless of whether conduct amounting to ‘forced pregnancy’ is consistent with national law, an individual who commits such conduct could be prosecuted for ‘forced pregnancy’ as a war crime and/or crime against humanity under the Rome Statute (if the contextual elements for were met, and subject to the ICC’s jurisdiction and admissibility rules). Victims in states with strict abortion laws do not enjoy lesser protections under the Rome Statute than those in states with more liberal abortion laws.

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Jackson v. Dobbs - Amicus Brief

SUMMARY OF ARGUMENT

Near-categorical bans on abortions will have a significant, real, and negative impact on the health of pregnant individuals.

The worst such impacts will be borne by marginalized groups, including people living in economic poverty and by Black, Indigenous, and people of color. These are the very groups whose health the law should protect. Banning abortion does the opposite.

In-country after country, abortion bans have not led to a decrease in the number of abortions, but rather an increase in the number of unsafe abortions—especially affecting people of limited means.

These risks are neither theoretical nor conjectural. In countries across the world, including Romania, South Africa, El Salvador, and Ecuador, there is a statistical relationship between the imposition of restrictive abortion legislation and increases in maternal mortality and morbidity. The lesson for this case is clear: If an abortion ban like H.B. 1510 is upheld, more women in Mississippi are likely to die.

Consistent with these findings, countries around the world allow abortion on broad grounds.

Amicus briefs submitted in support of Petitioners claim that most countries ban or severely restrict abortion. That assertion distorts reality. In fact, a strong majority of women of reproductive age—approximately 60%—live in countries where abortion is available upon request or otherwise broadly available on a variety of social, economic, and health grounds.

By contrast, just a handful of countries, representing 5% of women of reproductive age, ban abortion without exception. Mississippi’s H.B. 1510 is an unmistakable step in this latter direction, away from the global norm and towards this small minority position.

Furthermore, where only economically developed or highly developed countries are considered, an even more robust consensus emerges. Of the 36 highly developed countries, 34 offer abortion on broadly available grounds. A significant number of nations offer abortions free of charge to low-income pregnant individuals.

International law coheres with these trends in comparative law. Contrary to amicus briefs submitted supporting Petitioners, international human rights law recognizes the well-known risks created by restrictive abortion legislation and requires states to ensure abortion access.

Access to safe and lawful abortion services is firmly rooted in the rights to life; to non-discrimination; to be free from torture, cruel, and degrading treatment; and to privacy. These rights are recognized in international human rights treaties ratified by the United States, such as the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, and the Convention Against Torture. The United States cannot, given its international obligations, enact legislation that transgresses these commitments. Banning abortion clearly does so.

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Complaint - Unalienable Rights Lawsuit

A coalition of international human rights organizations sued the Trump administration for creating and operating the State Department's Commission on Unalienable Rights in violation of the Federal Advisory Committee Act. Secretary of State Mike Pompeo unlawfully created the Commission in July 2019. Since then it has been working behind closed doors to articulate a definition of human rights that is grounded in certain religious traditions and that will eliminate rights for LGBTQI individuals, restrict sexual and reproductive health and rights and remove protections for other marginalized communities across the globe. The Commission's establishment — and its mandate to fundamentally reconsider the U.S.’s commitment to human rights — represents yet another way in which the Trump administration has eroded U.S. human rights commitments and practices, both domestically and abroad. 

Democracy Forward filed the lawsuit on behalf of Robert F. Kennedy Human Rights, the Center for Health and Gender Equity (CHANGE), the Council for Global Equality, and Global Justice Center

 
   

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Censorship Exported: The Impact of Trump’s Global Gag Rule on the Freedom of Speech and Association

Joint policy brief by the Global Justice Center and the Center for Health and Gender Equality (CHANGE)

In January 2017, President Trump signed a presidential memorandum reinstating the Global Gag Rule (GGR), an onerous policy that not only limits the provision of abortion services as a method of family planning but also restricts a wide variety of speech about abortion, including information, certain types of research, and advocacy. 

Two years on, the detrimental impacts of Trump’s GGR on sexual and reproductive health, HIV and AIDS services, and maternal mortality are well documented. But the GGR, in conjunction with other US abortion restrictions on foreign aid, also violates the fundamental rights of individuals and organizations to free speech and association. This policy brief looks at the documented impacts of the GGR that have been observed over the past two years against the human rights framework protecting the fundamental freedoms of speech and association. This is an edited version of GJC and CHANGE’s submission to the Human Rights Committee’s 125th Session for the preparation of the US List of Issues Prior to Reporting.

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Gender Crimes Require Gender Justice for Burma's Rohingya

Rohingya women and girls have suffered targeted atrocities at the hands of Burma’s security forces. Amounting to crimes against humanity and genocide, these attacks were gendered in their conception, commission, and consequences. Accordingly, gender must be central to any and all efforts aimed at justice and accountability for the crimes committed against the Rohingya.

For an in-depth analysis of the sexual and gender-based crimes perpetrated by Burma’s security forces against Rohingya women and girls, see the Global Justice Center’s (GJC) legal brief: Discrimination to Destruction: A Legal Analysis of the Gender Crimes Against the Rohingya.

Discrimination to Destruction: A Legal Analysis of Gender Crimes Against the Rohingya

Since August 2016, the Burmese military (Tatmadaw), Border Guard, and police forces have conducted a systematic campaign of brutal violence against Rohingya Muslims in Burma’s northern Rakhine State. These attacks come in the midst of a decades-long campaign of persecution of the Rohingya through discriminatory measures to police and control the group, including denying citizenship rights, restricting movement and access to healthcare, and limiting marriage and the number of children in families. While all members of the Rohingya population were targeted for violence, gender was integral to how the atrocities were perpetrated.

This brief seeks to bring to light the international crimes—crimes against humanity and genocide—committed against Rohingya women and girls since 2016 by Burmese Security Forces and highlight the role gender played in the design and commission of these atrocities. The military has long used rape as a weapon of war and oppression in its conflicts with ethnic groups, and in the recent attacks, Rohingya women and girls were targeted for particularly brutal manners of killing, rape and sexual violence, and torture. 

Iraq’s Criminal Laws Preclude Justice For Women And Girls

In light of the gender dynamics at the root of Daesh’s violence, gender must also be at the center of accountability. With justice for Daesh beginning, this Briefing details how Iraq’s current legal framework precludes meaningful justice for women and girls. It highlights the gender gaps in Iraq’s criminal laws and identifies opportunities for broader reform to better protect Iraqi women and girls from sexual and gender-based violence.

Introduction

For years the world watched in collective horror as Daesh committed brutal atrocities. Central to this violence was sexual and gender-based violence, with explicit targeting of women and girls. Daesh used rape, sexual slavery, forced marriage and torture—distinct crimes on their own as well as constituent elements of genocide, crimes against humanity and war crimes—as tools for recruitment, conversion, forced indoctrination, and the fundamental destruction of community cohesion.1 For many, the only thing that stood in opposition to these crimes was the prospect, however far away, of justice.

Justice, however, is complex. It requires accountability, redress and a focus on preventing the recurrence of violations. Justice efforts must be independent, credible, inclusive, and accepted by impacted communities, with special respect and recognition for the dignity of victims. Importantly, and as this Briefing illustrates, it must reflect the full scope and scale of the crimes that occurred.
As the international community and the Iraqi government begin the process of holding members of Daesh accountable for their crimes, it is critical to examine the legal systems that will be responsible for these prosecutions. Prosecutions to date, which have all been conducted under Iraq’s 2005 counter-terrorism law, have failed human rights standards and do not suffice the interest of justice. 

This Briefing highlights one such example—specifically how Iraq’s current laws fall far short of the requirements for justice, as they are unable to punish the most egregious of Daesh’s gender crimes. Iraq’s Penal Code is a patriarchal patchwork rooted in preexisting peacetime gender inequalities and violence.2 The way and manner in which the Code defines sexual and gender-based violence crimes is steeped in language and perspectives that are inherently and overtly discriminatory against women and fall short of international standards. Any justice mechanism organized under these laws will fail to provide full accountability and redress to Daesh’s female victims. 

In order to highlight these challenges, this Briefing: (i) identifies particular categories of Daesh’s gender crimes and considers how these crimes are currently codified in Iraqi law; (ii) details the gaps where Iraq’s laws do not entirely capture the ways in which Daesh committed sexual and gender-based violence; and (iii) describes international standards for defining and understanding the many facets of these crimes.

A complete reckoning with the planned and inherently gendered elements of Daesh’s violence is essential for Iraq to begin the transition out of armed conflict. These first steps of putting this history behind it must provide justice for victims, combat these victims’ marginalization, and prevent future violations against women, girls and other communities targeted on behalf of their gender. 

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US Abortion Restrictions on Foreign Aid and Their Impact on Free Speech and Free Association

The United States (US) imposes restrictions on its foreign aid that limit both services and speech related to abortion. They attach to nearly all recipients of foreign aid—limiting the activities, speech, and information that can be legally provided by doctors, health professionals, experts and advocates. These restrictions violate the US’s fundamental human rights obligations to protect free speech and free association.

This brief explains the restrictions on free speech and association imposed by the US Congress (the Helms and Siljander Amendments) and by the executive branch (the Global Gag Rule [“Gag Rule” or “GGR”]). It then details the US’s human rights obligations to respect freedom of speech and association, focusing on obligations under the International Covenant on Civil and Political Rights (ICCPR). The ICCPR only allows for the restriction of these rights in narrow circumstances: where the restriction is adequately provided by law, where it serves a legitimate aim (such as national security or public health), and where the state demonstrates that the restriction is necessary and proportionate in achieving that aim. This brief demonstrates that the Helms and Siljander Amendments and the GGR all fail that strict test, and therefore violate US obligations to ensure and protect the rights to free speech and association guaranteed under international human rights law.

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FOIA: The Helms Amendment, Global Gag Rule, and Other U.S. Abortion Restrictions

FOIA: The Helms Amendment, Global Gag Rule, and Other U.S. Abortion Restrictions

March 6, 2017 – Ongoing

Beginning in March 2017, GJC filed FOIA requests to the State Department, the Department of Health and Human Services (HHS), and USAID to request “information on all emails, internal memos, contracts, grants and awards since November 8, 2016 that discuss or mention the Helms amendment, Global Gag Rule, the ‘Protecting Life in Global Health Assistance’ policy, or other US abortion restrictions on foreign assistance.”

GJC received expedited processing on these requests with State and HHS on the grounds that “failure to obtain requested information…could reasonably be expected to pose an imminent threat to the life or physical safety of an individual”; the USAID request was not granted expedited processing.

State Department timeline (case F-2017-05062):

State Department timeline (case F-2018-02397):

USAID timeline (case F-00137-17):

USAID timeline (case number F-00118-18):

HHS timeline (case 2017-00983-FOIA-OS):

HHS timeline (case 2018-00822-FOIA-OS):

Department of Defense timeline (case 18-F-0903):

Department of State FOIA re: Syria

August 19, 2013 – December 9, 2016
Case F-2013-14923

In August 2013, GJC submitted a FOIA request for information on (1) State humanitarian assistance awards to Syria and neighboring countries in FY 2012 and 2013 and (2) State awards, grants, and internal memos pertaining to U.S. funding for efforts aligning with the UK’s Preventing Sexual Violence Initiative (PSVI). After a three-year FOIA process, GJC received documents in December 2016 containing:

Timeline:

  • August 19, 2013Initial request sent
  • February 1, 2016 – Estimated completion date (set by State Dept.)
  • December 9, 2016– Responsive documents received

USAID FOIA re: Burma

March 3, 2015 – January 10, 2017
Case F-00127-15

GJC petitioned USAID for information on “all USAID contracts, grants and awards related to the funding of the Mae Tao Clinic on the Thai-Burma border to cover operational and support costs since 2008.” This request was part of the August 12th Campaign, dealing specifically with the services available to rape victims in Burma and those who are displaced to the Thai-Burma border.

Abortion-related sections of USAID contracts (emphasis added):

(1) Ineligible Goods and Services. Under no circumstances shall the recipient procure any of the following under this award:

            (i) Military equipment,

            (ii) Surveillance equipment,

(iii) Commodities and services for support of police or other law enforcement activities,

(iv) Abortion equipment and services,

(v) Luxury goods and gambling equipment, or

(vi) Weather modification equipment

Timeline:

  • March 3, 2015– Initial request sent
  • January 10, 2017 – Responsive documents received

USAID FOIA re: Syria

August 19 – September 26, 2013
Case F-00322-13

GJC requested information on contracts pertaining to USAID humanitarian assistance awards in Syria for FY 2012 and 2013, looking specifically for portions of the awards containing abortion prohibitions

Timeline:

USAID FOIA re: Iraq

September 23, 2014 – ongoing
CaseF-2014-20299

Similar to the FOIA request on humanitarian assistance in Syria, GJC requested details on humanitarian assistance awards to Iraq and neighboring countries in FY 2014.

Timeline:

  • September 23, 2014Initial request submitted
  • January 18, 2018 – Letter received stating no responsive records were found
  • February 16, 2018 – GJC submits an appeal to the no records response, asking State to perform a new search

USAID FOIA re: DRC, Darfur/Sudan, UPR documents, and various NGOs

USAID FOIA re: DRC, Darfur/Sudan, UPR documents, and various NGOs

March 5, 2011 – January 12, 2013
CaseF-00152-12

GJC requested the most recent contracts, grants and agreements between USAID and its offices/subdivisions for:

  • Democratic Republic of the Congo
  • Darfur/Sudan
  • International Medical Corps
  • International Rescue Committee
  • UNICEF
  • Management Sciences for Health
  • UPR documents

Timeline:

Prosecuting Genocide: European Union Obligations in the Age of Daesh

Daesh, also known as ISIS/ISIL, is committing genocide against religious and ethnic minorities, targeting women and girls in particular. The time is now for the EU to fulfil its international legal obligations to prevent and prosecute genocide. This means the EU must recognize this ongoing genocide, take steps to prevent and suppress it, and call for and facilitate its prosecution.

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When Terrorists Perpetrate Genocide: Legal Obligations to Respond to Daesh’s Genocide

Daesh is perpetrating genocide of the Yazidi, Christian, and other minorities as acknowledged by US Secretary of State John Kerry, the EU Parliament, Iraq, and others. The 1948 Genocide Convention was passed to protect distinct values central to humanity: the right of protected groups to their continued existence and the right of all people to live in a world enriched by diversity and marked by tolerance. Genocide is defined as acts to destroy national, ethnic, racial or religious groups, as distinct entities.  The joint attacks against Daesh in August 2014 to “avert potential genocide” of the Yazidi saved lives but did not stop Daesh from continuing to perpetrate genocide.

The international legal framework designed to keep the world free from genocide is distinct from that of other international laws and protects distinct values. Strategies to counter terrorism including, to prosecute and deny “safe havens” for terrorists, without more, do not fulfill the nonderogable obligations of states and international entities to stop genocide.

The Genocide Convention’s effectiveness in deterring genocide depends on states fulfilling their obligationsto take “all possible measures” individually and collectively to prevent, suppress, and punish genocide. The failure of states and international organizations to address Daesh genocide crimes undermines the legitimacy of the Genocide Convention and the effectiveness of counter terrorism efforts.

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