Interpreting International Humanitarian Law to Guarantee Abortion and Other Sexual and Reproductive Health Services in Armed Conflict
Vol 26/1, 2024, pp. 31-43 PDF
Christina Zampas, Rebecca Brown, and Onyema Afulukwe
Abstract
The provision of basic sexual and reproductive health services in humanitarian settings, including armed conflict, is extremely limited, causing preventable mortalities and morbidities and violating human rights. Over 50% of all maternal deaths occur in humanitarian and fragile settings. International humanitarian law falls short in guaranteeing access to the full range of sexual and reproductive health information and services for all persons. Guaranteeing access to sexual and reproductive health services under international humanitarian law can increase access to services, improving the health and well-being of civilians in conflict zones. This paper sets forth ways in which international human rights law on sexual and reproductive health and rights should be incorporated into the forthcoming International Committee of the Red Cross Commentary on Geneva Convention IV, regarding the protection of civilians, to ensure services in the context of armed conflict.
Introduction
In the 1950s and 1960s, the International Committee of the Red Cross (ICRC) published a set of commentaries on the Geneva Conventions, giving practical guidance to support these treaties’ implementation. These commentaries are considered a definitive source of interpretation of obligations under the Geneva Conventions. In 2011, the ICRC and a team of experts embarked on an effort to update the commentaries to reflect recent developments in law and practice and, hence, new interpretations of the conventions.[1] Currently, the ICRC has commissioned a Commentary on Geneva Convention IV, which covers the protection of civilians.
It is important to recall that customary international humanitarian law (IHL) provides that “the specific protection, health and assistance needs of women affected by armed conflict must be respected.”[2] In order to achieve this and customary IHL’s own recognition that it should be viewed in light of the “prominent place of women’s rights in human rights law,” the forthcoming Commentary on Geneva Convention IV must go further in applying the long-standing international human rights law (IHRL) protections in the area of sexual and reproductive health and rights without discrimination.[3] It is insufficient merely to recognize that the Geneva Conventions are outdated without more robustly tackling the health needs of persons long discriminated against and ignored, as well as the gendered biases that are embedded in IHL.
Updated commentaries on other Geneva Conventions reflect, to some degree, the progressive changes that have taken place in recent decades under domestic law and IHRL and in practice with regard to women and persons of diverse sexual orientation, gender identity and expression, and sex characteristics. However, the history of the subordination of these populations under international law requires continued commitment and vigilance to ensure a contemporary interpretation in IHL that incorporates continued developments in IHRL and domestic law, including in the area of sexual and reproductive health and rights.[4]
This paper begins with a brief overview of the factors that hinder access to sexual and reproductive health (SRH) services in humanitarian settings, including in armed conflict. We then explore how IHL provisions ensuring humane treatment and guaranteeing no adverse distinction should be read consistently with IHRL obligations on the right to be free from torture, cruel, and inhuman and degrading treatment and the right to nondiscrimination, respectively, in the area of sexual and reproductive health and rights. Next, we provide examples of how articles 16 and 27 in Geneva Convention IV, as well as common article 3, could be interpreted to include SRH services more comprehensively. Finally, we argue that the forthcoming commentary should interpret relevant provisions of Geneva Convention IV in line with developments in state practice on laws on abortion.
Background
The United Nations (UN) Office for the Coordination of Humanitarian Affairs has estimated that nearly 300 million people will need humanitarian assistance and protection in 2024, with more people being forcibly displaced now than at any other time since the beginning of this century.[5] Conflict, climate crisis, and economic factors are the main drivers of these emergency situations.[6] UNFPA emphasizes that during conflicts and emergencies, SRH needs are often unmet, with grave consequences.[7] Lack of access to delivery and emergency obstetric care poses life-threatening complications for those who are pregnant.[8] Loss of access to contraceptives exacerbates unintended pregnancy in already perilous conditions.[9] Women and girls continue to remain at increased risk of sexual violence, exploitation, and HIV infection, with all the mental, physical and social consequences.[10] Conflict settings have demonstrated consistently higher maternal mortality rates than non-conflict settings, as well as lower access to reproductive and maternal health services for marginalized populations, including poor, less educated, and rural populations.[11]
International and regional human rights law on torture and on nondiscrimination support more robust considerations of sexual and reproductive health and rights in IHL
Two sets of rights and principles where IHRL has been expressly used to clarify IHL—and which are important for ensuring greater access to SRH services—are (1) the right to be free from torture and other ill treatment (as enshrined in IHLR) and the principle of humane treatment (as enshrined in IHL); and (2) the right to nondiscrimination (as enshrined in IHRL) and the principle of no adverse distinction (as enshrined in IHL).
IHRL’s right to be free from inhuman and degrading treatment in the area of sexual and reproductive health and rights should be reflected in IHL’s obligation of humane treatment
Humane treatment is considered a norm of customary international law from which there can be no derogation.[14] It requires that all non-combatants, including civilians and the sick and wounded, be treated humanely in all circumstances and with respect for their person and honor, without any adverse distinction based on sex or other similar criterion.[15]
Customary IHL notes that “the detailed rules found in international humanitarian law and human rights law give expression to the meaning of ‘humane treatment’” and that “this notion develops over time under the influence of changes in society.”[16] These “changes in society” are reflected in the ICRC’s 2016 and 2020 updated Commentaries on Geneva Conventions I and III, respectively, which note that “sensitivity to the individual’s inherent status, capacities and needs, including how these differ among men and women due to social, economic, cultural and political structures in society, contributes to the understanding of humane treatment under Common Article 3.”[17] In the commentaries, the ICRC helpfully references numerous health and sexual and reproductive rights issues—including involuntary sterilization and “gender-based humiliation such as shackling women detainees during childbirth”—as examples of violations of common article 3 that human rights bodies have found to violate IHRL’s right to freedom from torture and other ill treatment.[18]
While these examples are important to include, the obligation of humane treatment under IHL should more robustly encompass the range of SRH services that are protected under the right to be free from torture and other cruel, inhuman, or degrading treatment or punishment under IHRL.[19] While it is important not to create a framework of humane treatment that risks being narrow and inflexible, and thus incapable of responding to circumstances that arise in the contemporary world, the 2020 Commentary on Geneva Convention III’s article 3 recognizes that some guidance is needed—otherwise, there is too much discretion that could lead to interpretations incompatible with ensuring humane treatment.[20] Providing examples in the forthcoming commentary on Geneva Convention IV that reflect long-standing protections of IHRL on access to SRH services, such as abortion, emergency contraception, and emergency obstetric care, would be critical to closing this gap.[21]
UN treaty bodies and Special Procedures. Over the past two decades, authoritative regional and UN treaty body and Special Procedure mandate holders have articulated the lack or denial of SRH services as violations of the right to be free from torture and cruel, inhuman, and degrading treatment.
The Committee against Torture, which monitors state compliance with the Convention against Torture, recognizes that “the contexts in which females are at risk [of torture or ill treatment and the consequences thereof] include … medical treatment, particularly involving reproductive decisions.”[22]
For example, the committee has long found that denying or delaying safe abortion or post-abortion care may amount to torture or cruel, inhuman, or degrading treatment.[23] It has long expressed concern over complete bans on abortion and other restrictive abortion laws and practices, recognizing that they may constitute violations of articles 2 and 16 of the convention.[24] It has consistently found that the denial or delay of post-abortion care can violate obligations under the convention and has recommended ensuring access to post-abortion care, regardless of the law.[25]
The committee has also recognized how the denial of relevant services for survivors of sexual violence, including emergency contraception and abortion, exposes them to ongoing violations.[26]
Similarly, the Human Rights Committee, which monitors state compliance with the International Covenant on Civil and Political Rights, in the first-ever case on denial of access to abortion in the UN treaty body system and in every single subsequent case thereafter, has found that denial of abortion, regardless of its legal status, constitutes physical and mental suffering amounting to a violation of article 7.[27]
The committee reinforces this interpretation in its General Comment 36 on the right to life.[28]
Most recently, the Committee on the Rights of the Child, which monitors state compliance with the most widely ratified human rights treaty—the Convention on the Rights of the Child—in its first-ever decision related to the denial of abortion to a minor, found a violation of cruel, inhuman, and degrading treatment.[29]
The African, European, and inter-American human rights systems have also considered that the denial or delay of abortion and other SRH services is a violation of the right to be free from torture and other ill treatment under their respective treaties.[30]
The UN Special Rapporteur on torture has noted that “international human rights law increasingly recognizes that abuse and mistreatment of women seeking reproductive health services cause tremendous and lasting physical and emotional suffering,” which can constitute cruel and degrading treatment.[31]
In September 2021, seven Special Procedure mandate holders, including the Special Rapporteur on torture, filed an amicus brief with the US Supreme Court in an abortion case that eventually overturned 50 years of abortion protection under the US Constitution. In this brief, they argued that IHRL protects abortion access and that prohibitions on such access breach numerous international human rights, including the right to be free from torture and cruel, inhuman, or degrading treatment, and asked the court to uphold existing constitutional protections on abortion and refuse the retrogression of rights.[32]
IHL’s prohibition of adverse distinction should be interpreted consistently with IHRL’s right to nondiscrimination
The ICRC’s 2016 Commentary on Geneva Convention I notes that “sex is traditionally recognized as justifying, and in fact requiring, differential treatment.”[36] It recognizes:
Grounds for non-adverse distinction could also be found in an awareness of how the social, economic, cultural or political context in a society forms roles or patterns with specific statuses, needs and capacities that differ among men and women of different ages and backgrounds. Taking such considerations into account is no violation of the prohibition of adverse distinction, but rather contributes to the realization of humane treatment of all persons protected under common Article 3.[37]
This is an important recognition, particularly in the area of sexual and reproductive health and rights, given that many of the challenges concerning the availability and accessibility of SRH information and services exist because of discrimination on grounds of sex, gender, and sexual orientation, as well as related harmful gender stereotypes.
The fact that the IHL principle of no adverse distinction is similar to the human rights principle of nondiscrimination suggests that IHRL should provide guidance as to how this principle should be interpreted, including in the context of SRH services.[38]
State obligations on nondiscrimination under IHRL require ensuring access to SRH services. Fulfilling the right to nondiscrimination requires ensuring access to sexual and reproductive health care. UN treaty bodies have repeatedly articulated that the failure to provide such services, including contraception and abortion, is a form of discrimination against women.[39] As early as 1999, the Committee on the Elimination of Discrimination against Women (CEDAW Committee) articulated that “it is discriminatory for a State party to refuse to provide legally for the performance of certain reproductive health services for women.”[40]
A year later, the Human Rights Committee also addressed restrictions on access to reproductive health services as forms of discrimination and inequality, including during armed conflict.[41] For over 25 years, these and other human rights bodies have consistently articulated that the lack of access to or the denial of SRH services constitutes discrimination against women, perpetuates harmful gender stereotypes, and violates a range of other human rights.[42] With regard to abortion, human rights treaty bodies have long articulated that the denial of access to abortion and restrictive abortion laws can violate the right to nondiscrimination.[43] For example, the CEDAW Committee, in a special inquiry, found that abortion restrictions in Northern Ireland constituted discrimination because they affected only women, were a form of gender-based violence in violation of the convention, and “affront[ed] women’s freedom of choice and autonomy, and their right to self-determination.”[44]
IHRL also requires states to eliminate multiple and intersectional discrimination, including in the area of sexual and reproductive health and rights.[45]
Discrimination in access to SRH services in armed conflict. IHRL has specifically recognized that the right to nondiscrimination in relation to SRH services applies in armed conflict. The CEDAW Committee notes that during armed conflict or states of emergency, states should not suspend rights protections but rather “adopt strategies and take measures addressed to the particular needs of women.”[46] It specifically recommends access to, among other things, sexual and reproductive health and rights information; psychosocial support; family planning services, including emergency contraception; maternal health services, including antenatal care, skilled delivery services, and prevention of vertical transmission and emergency obstetric care; safe abortion services; post-abortion care; prevention and treatment of HIV/AIDS and other sexually transmitted infections, including post-exposure prophylaxis; and care to treat injuries such as fistula arising from sexual violence, complications of delivery, and other reproductive health complications.[47] It is important to note that the CEDAW Committee’s guidance does not condition the provision of safe abortion services to circumstances in which abortion services are legal.
Addressing gender stereotypes in IHL and improving access to SRH services
IHL falls short in guaranteeing access to the full range of SRH information and services for all persons, including survivors of sexual and gender-based violence, despite the fact that IHL expressly recognizes that women face specific needs in armed conflict.[48]
Treatment of women under the Geneva Conventions. The obligation that “women shall be treated with all consideration due to their sex” can be found throughout the Geneva Conventions.[49] The 1960 Commentary on Geneva Convention III sets forth three considerations to be taken into account when applying this provision: women’s “weakness,” their “honour and modesty,” and their role in “pregnancy and child-birth.”[50] Although this concept is referring to women prisoners of war, it captures the stereotypes and normative bias against women and persons of diverse sexual orientation, gender identity and expression, and sex characteristics that are reflected throughout the Geneva Conventions. For example, article 16 of Geneva Convention IV covers treatment of the “wounded and sick” and “other persons who may be in need of immediate medical assistance or care, such as . . . expectant mothers,” and article 27 sets forth specific protections for women, stressing that “women shall especially be protected against any attack on their honour.”[51]
Although there has been progress in expanding the definition of rape in international law, IHL’s formulation of rape as an attack against women’s honor and its focus on women who are pregnant fails to view women as independent rights holders with the rights to autonomy and bodily integrity.[52] As one scholar notes:
Patriarchal societies generally attach a preeminent value to women’s chastity and reproductive capacity, seeing women’s reproduction as a way of guaranteeing the survival of both community and culture. A woman who is sexually violated, impregnated by enemies, or kidnapped into sexual and domestic enslavement is therefore often regarded as “disgracing family honor, being unclean or contaminated, [or] being a seductress.”[53]
It is widely accepted that international law has established and reinforced harmful stereotyped roles of women as mothers or as pregnant.[54] In fact, 9 out of the 19 provisions in the four Geneva Conventions referring to women refer to them as pregnant or mothers of small children.[55] While resulting protections, including related health care guarantees, are crucial, the root of many barriers to comprehensive sexual and reproductive health care lies in harmful gender stereotypes that see women’s primary roles as mother, child bearer, and caregiver and that perpetuate binary norms in the provision of SRH services.[56]
Gender stereotypes
All UN treaty bodies have attempted to address these harmful stereotypes by recognizing them as discriminatory and in need of reform.[57] Article 5 of CEDAW creates express obligations to address harmful stereotypes and their underlying causes.[58] The CEDAW Committee, and other treaty bodies, has recognized the negative impact that harmful stereotypes have on access to SRH services specifically, noting that patriarchal attitudes and stereotypes about women as mothers and caregivers, prejudices about SRH services, and taboos about sexuality outside of marriage all contribute to the lack of access to reproductive health information, goods, and services.[59] In L.C. v. Peru, the committee affirmed that restrictions on access to abortion embed a harmful stereotype that “understands the exercise of a woman’s reproductive capacity as a duty rather than a right.”[60] The Committee against Torture acknowledges that non-conformity with gender stereotypes plays a central role in “the ways that women and girls are subject to or at risk of torture or ill-treatment and the consequences thereof” and “may be subject to violations of the Convention on the basis of their actual or perceived non-conformity with socially determined gender roles.”[61] The International Covenant on Civil and Political Rights, under its nondiscrimination and equality provisions, also requires states to address gender stereotyping.[62]
More recent ICRC commentaries shift away from the harmful stereotypes found in the Geneva Conventions and earlier commentaries.[63] For example, the 2020 Commentary on Geneva Convention III, in explaining the meaning and obligations related to article 14(2)’s statement that “women shall be treated with all regard due to their sex,” notes that it
is not to be understood as implying that women have less resilience, agency or capacity within the armed forces, but rather as an acknowledgement that women have a distinct set of needs and may face particular physical and psychological risks.[64]
The ICRC commentaries from 2016 and 2020 note social and international legal developments under IHRL on nondiscrimination and equality, citing to the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination against Women.[65]
Medical care
The updated Commentaries on Geneva Conventions I and III have also begun articulating better, albeit still limited, recognition of the comprehensive reproductive health care needed in armed conflict under articles related to medical care.
ICRC Commentaries on Geneva Convention I (article 12, protection and care of the wounded and sick) and Geneva Convention III (article 16, equality of treatment of prisoners) provide for an intersectional and substantive equality approach to the provision of health care.[66] For example, the 2020 Commentary on Geneva Convention III notes, “To ensure equal treatment of women, they must be treated with all due regard to their sex. This means that in terms of medical care, for example, female prisoners may require access to ante- and postnatal care and gynaecological and reproductive health care.”[67]
Importantly, the updated commentaries expand protection beyond maternal health care to include “gynecological and reproductive health.”[68] They also require that military medical services include a “range of expertise and skills” to care for “both male and female patients.”[69] Moreover, they require that parties to a conflict plan and analyze the various types of health care that are needed by considering power structures and their impact, specifically
how the roles and patterns formed by the social, economic, cultural or political context and resulting in different statuses, needs and capacities among women and men of different ages and backgrounds could hamper the safe access to care of any one group. This may include a reluctance to seek or receive medical care, possibly owing to discrimination or a stigma of being wounded or sick. Knowledge of how social structures influence the situation should be taken into account in order to ensure that health care is fully accessible to both women and men and minimizes the risks of any group being subject to discrimination, lack of respect, harm or danger before, during or after the care.[70]
The 2020 Commentary on Geneva Convention III’s article 14 specifically recognizes the gender-specific physical, mental, and psychosocial effects of sexual violence against women, including medical complications during pregnancy and stigma.[71] It requires that “the Detaining Power take proactive measures to prevent such incidents from occurring and to ensure that women who are victims of sexual violence have access to appropriate, gender-specific health care.”[72]
The widespread use of rape as a weapon of war has also raised issues concerning what types of medical treatment and care must be provided to survivors of rape, in particular whether there is an obligation to provide abortion services under IHL.[73] The Oxford University Press commentary on the Geneva Conventions notes that these instruments “do not prevent the interpretation of the notion of ‘medical care’ as including abortion.”[74] The ICRC commentaries indicate that medical services should be equipped to handle “women’s gynaecological and reproductive health issues,” without noting limitations.[75]
In addition, the 2020 Commentary on Geneva Convention III’s article 30, which concerns medical attention, notes that “an infirmary’s lack of medical capacity may not be used as a blanket justification for being unable to address the specific needs of women prisoners.”[76] This implies that it is discriminatory to deny women health care that is needed only by them, in line with the Convention on the Elimination of All Forms of Discrimination against Women and other IHRL treaty obligations.[77]
The commentary continues:
In all cases, the provision of medical care must comply with the applicable standards of medical ethics … respect for the autonomy and agency of prisoners of war with regard to their voluntary and informed consent—or refusal—to undergo any medical procedure; respect for medical confidentiality … and the prohibition on engaging—actively or passively—in acts that may amount to torture or other cruel, inhuman or degrading treatment or punishment.[78]
UN agency guidance
The World Health Organization, UNFPA, and the Office of the United Nations High Commissioner for Human Rights have consistently called for stakeholders to address the dire situation regarding the lack of access to SRH services in humanitarian settings, including in armed conflict.[79] For example, they support the implementation of the Minimum Initial Service Package for SRH in crisis situations, which sets forth specific services that should be provided to address the overlooked SRH needs of affected populations, the absence of which have potentially life-threatening consequences.[80] This package is the most widely applied technical standard for the provision of SRH services in humanitarian settings.[81]
The overwhelming progressive state practice on abortion and World Health Organization guidance
There is an overwhelming global trend toward the greater liberalization of abortion laws and increased access to abortion. Fifty-nine countries have liberalized their abortion laws to expand the grounds for legal abortion since the 1994 International Conference on Population and Development, while only four countries have made their laws more restrictive by removing legal grounds for abortion during this time.[84] There is geographic diversity in abortion law reform, notably with nearly half the countries that have liberalized their laws located in Africa.[85] In addition, many countries have also implemented policy and programmatic measures to improve access to safe abortion services.[86]
Liberal reforms are propelled by various factors, including evidence showing that the rate of mortality and morbidity due to unsafe abortion is greatest in countries with restrictive laws and that restrictions do not reduce the number of abortions, only their safety.[87] Moreover, a gender-sensitive understanding of equality and nondiscrimination has been at the center of many of these national developments. Since 2000, at least 20 constitutional courts have issued decisions on the legality of abortion, with six courts upholding laws guaranteeing access to abortion, ten courts deciding that restrictive criminal laws on abortion in whole or in part are unconstitutional, and only four courts deciding that restrictive laws can be or are constitutional.[88]
A few years ago, the European Commission, France, the Netherlands, and the United Kingdom addressed the specific issue of abortion access for rape survivors in statements recognizing that IHL entails an obligation to provide abortion services to rape survivors in armed conflict situations, regardless of national laws.[89]
It is important to note that most countries (about 140 in total) allow abortion in relation to rape and incest. This includes countries whose laws permit abortion by specifically enumerating these grounds; permit abortion on request, without restriction as to reason; permit abortion on broad socioeconomic grounds; and permit abortion on express mental health grounds, in which rape is not an enumerated ground but could be included.[90]
State practice, as illustrated through national-level laws and regulations, however, has for decades been moving away from a grounds-based approach that provides exceptions to criminalization on the grounds of health, life, rape, or severe fetal impairment.[91] Such grounds-based laws have proven ineffective in ensuring access to abortion, even on the grounds permitted under the law.[92] Evidence also shows that grounds-based laws contribute to delays in and denials of abortion, which in turn contributes to unsafe abortion.[93] For these reasons, the World Health Organization recommends, in newly released guidance on abortion, the full decriminalization of abortion and the reform of restrictive laws, including grounds-based laws.[94] Currently, 75 countries allow abortion on request without restriction as to reason, and 13 countries allow it on broad socioeconomic grounds.[95]
Conclusion
The ICRC commentaries are important sources of law that can clarify obligations to protect persons from the effects of armed conflict. By addressing in greater detail the range of SRH services needed by all civilians and the barriers to access that persons face—two areas of IHL that are often overlooked—the forthcoming commentary on Geneva Convention IV can ensure that long-standing and ongoing guidance and obligations under IHRL and regional human rights law find their due place in IHL.
IHL protections on the rule of “no adverse distinction” and in the guarantee of “humane treatment” should be interpreted consistently with analogous IHRL protections on the right to be free from discrimination and the right to be free from torture and other cruel, inhuman, and degrading treatment or punishment in the context of sexual and reproductive health care. While IHL has long recognized this relationship between the bodies of law, it has to date failed to specifically recognize it in the context of SRH services, despite long-standing IHRL standards in this area.
In addition, while the current commentaries have taken important steps toward addressing some of the gender stereotypes embedded in the Geneva Conventions, the future commentary on Geneva Convention IV can go further by applying this development to the SRH needs of all civilians, not just survivors of violence or pregnant women, and by addressing barriers to health care, including stigma.
Abortion care is mentioned only once in the current commentaries—and even then, only in a footnote discussing health care related to sexual violence.[96] While this acknowledgment is an important step, it falls short of what is needed given the dire situation facing persons requiring SRH services in armed conflict and the significant developments under IHRL and new World Health Organization guidelines in this area, which require states to ensure access to emergency contraception and broad access to abortion for all persons, including survivors of rape.[97] Developments in state practice, through progressive law reform on abortion in every region of the world, support this inclusion.
Acknowledgments
We would like to thank the following colleagues at the Center for Reproductive Rights: Margaret Harpin, legal advisor for global legal strategies, for her support in analyzing national abortion law reforms and trends; Kiefer Kofman, global advocacy fellow, for research assistance; and Emma Chessen, senior associate for global legal strategies and global advocacy, for formatting the citations.
Christina Zampas, JD, is a fellow at the International Reproductive and Sexual Health Law Program, Faculty of Law, University of Toronto, Canada.
Rebecca Brown, JD, is senior regional director of global advocacy at the Center for Reproductive Rights, New York, United States.
Onyema Afulukwe, LLB, LLM, is associate director for new initiatives and business development at the Center for Reproductive Rights, New York, United States.
Please address correspondence to Christina Zampas. Email: christina@zampas.org.
Competing interests: None declared.
Copyright © 2024 Zampas, Brown, and Afulukwe. This is an open access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/4.0/), which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original author and source are credited.
References
[1] International Committee of the Red Cross (ICRC), “Updated Commentary Brings Fresh Insights on Continued Relevance of Geneva Conventions for Treatment of Prisoners of War” (2020), https://www.icrc.org/en/document/updated-commentary-third-geneva-convention.
[2] ICRC, “Customary IHL Database,” rule 134, https://ihl-databases.icrc.org/en/customary-ihl.
[3] Vienna Convention on the Law of Treaties, 1155 UNTS 311 (1969), art. 31(3)(c); ICRC, “Customary IHL Database” (see note 2); Human Rights Committee, General Comment No. 31, UN Doc. CCPR/C/21/Rev.1/Add.13 (2004), para. 7.
[4] A. Crowe, “All the Regard Due to Their Sex: Women in the Geneva Conventions of 1949,” Harvard Research Working Paper Series (2016), https://hrp.law.harvard.edu/wp-content/uploads/2016/12/Anna-Crowe_HRP-16_001.pdf; H. Charlesworth and C. Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester: Manchester University Press, 2000); see also N. Quenivet, “A (Wo)Man’s Honour: Have the Geneva Conventions Lost Their Gender?” (presented at Seminar to Mark 70 Years of the Geneva Conventions, Maynooth University, Ireland, April 8, 2019), https://uwe-repository.worktribe.com/output/848973.
[5] United Nations Office for the Coordination of Humanitarian Affairs, Global Humanitarian Overview 2024 (New York: Office for the Coordination of Humanitarian Affairs, 2023), p. 5.
[6] Ibid. pp. 5, 6.
[7] UNFPA, Humanitarian Action 2023 Overview (New York: UNFPA, 2022), p. 3; UNFPA, “Humanitarian Emergencies,” https://www.unfpa.org/emergencies#readmore-expand.
[8] UNFPA, “Humanitarian Emergencies” (see note 7); S. Elnakib, M. Fair, E. Mayrhofer, et al., “Pregnant Women in Gaza Require Urgent Protection,” Lancet 403/10423 (2024); Alyne da Silva Pimentel Teixeira v. Brazil, Committee on the Elimination of Discrimination against Women (CEDAW Committee), August 10, 2011, case no. 17/2008, paras. 7.6–7.7.
[9] UNFPA, “Humanitarian Emergencies” (see note 7).
[10] United Nations Security Council, Women and Girls Who Become Pregnant as a Result of Sexual Violence in Conflict and Children Born of Sexual Violence in Conflict: Report of the Secretary-General, UN Doc. S/2022/77 (2022), paras. 9, 11, 13; UNFPA, Humanitarian Action (see note 7), p. 3; ICRC, ICRC Special Appeal 2021: Addressing Sexual Violence (Geneva: ICRC, 2021), pp. 9–10; World Health Organization, “Gender-Based Violence in Health Emergencies,” https://healthcluster.who.int/our-work/thematic-collaborations/gender-based-violence-in-health-emergencies.
[11] N. Akseer, J. Wright, H. Tasic, et. al., “Women, Children and Adolescents in Conflict Countries: An Assessment of Inequalities in Intervention Coverage and Survival,” BMJ Global Health 5 (2020), p. 1; Elnakib et al. (see note 8); S. Olelakan Olaleye, T. Folashade Aroyewun, and R. Abdelrahman Osman, “Sudan’s Maternal Health Needs Urgent Attention amid Armed Conflict,” Lancet 402/10405 (2023).
[12] See generally Human Rights Committee, General Comment No. 31 (see note 3); CEDAW Committee, General Recommendation No. 30, UN Doc. CEDAW/C/GC/30 (2013), paras. 19–24; ICRC, “IHL and Human Rights Law” (2010), https://www.icrc.org/en/document/ihl-human-rights-law.
[13] ICRC, “Customary IHL Database” (see note 2); see also generally Vienna Convention on the Law of Treaties, 1155 UNTS 311 (1969), art. 26.
[14] ICRC, “Customary IHL Database” (see note 2), rule 87.
[15] Geneva Conventions I–IV (1949), common art. 3.
[16] ICRC, “Customary IHL Database” (see note 2), rule 87.
[17] ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 2nd edition (2016), https://ihl-databases.icrc.org/ihl/full/GCI-commentary, art. 3, para. 553; ICRC, Commentary on the Third Geneva Convention: Convention (III) relative to the Treatment of Prisoners of War (2020), https://ihl-databases.icrc.org/ihl/full/GCIII-commentary, art. 3, para. 587; see also ICRC, “Customary IHL Database” (see note 2), rule 87.
[18] ICRC, Commentary on the First Geneva Convention (see note 17), art. 3, paras. 618–621, 698; ICRC, Commentary on the Third Geneva Convention (2020, see note 17), art. 3, paras. 657, 734; Committee against Torture, Concluding Observations: United States, UN Doc. CAT/C/USA/CO/2 (2006), para. 33; Committee against Torture, Concluding Observations: Kenya, UN Doc. CAT/C/KEN/CO/2 (2013), para. 27; Committee against Torture, Concluding Observations: Slovakia, UN Doc. CAT/C/SVK/CO/3 (2015), para. 12; Committee against Torture, Concluding Observations: El Salvador, UN Doc. CAT/C/SLV/CO/3, paras. 24, 28.
[19] See, for example, C. Droege, “‘In Truth the Leitmotiv’: The Prohibition of Torture and Other Forms of Ill-Treatment in International Humanitarian Law,” International Review of the Red Cross 89/515 (2007); see also M. Nowak and R. Janik, “Torture, Cruel, Inhuman, or Degrading Treatment or Punishment,” in A. Clapham, P. Gaeta, and M. Sassòli (eds), The 1949 Geneva Conventions: A Commentary (Oxford: Oxford University Press, 2015), p. 320.
[20] ICRC, Commentary on the Third Geneva Convention (2020, see note 17), art. 3, para. 588.
[21] Ibid.; CEDAW, General Recommendation No. 30 (see note 12), para. 52(c) and (d).
[22] Committee against Torture, General Comment No. 2, UN Doc. CAT/C/GC/2 (2008), para. 22.
[23] See, for example, Committee against Torture, Concluding Observations: Poland, UN Doc. CAT/C/POL/CO/7 (2019), para. 33(d); Committee against Torture, Concluding Observations: United Kingdom of Great Britain and Northern Ireland, UN Doc. CAT/C/GBR/CO/6 (2019), para. 46; Committee against Torture, Concluding Observations: Philippines, UN Doc. CAT/C/PHL/CO/3 (2016), para. 39; Committee against Torture, Concluding Observations: Kenya, UN Doc. CAT/C/KEN/CO/2 (2013), para. 27.
[24] Committee against Torture, Concluding Observations: El Salvador, UN Doc. CAT/C/SLV/CO/2 (2009), para. 23; Committee against Torture, Concluding Observations: Nicaragua, UN Doc. CAT/C/NIC/CO/1 (2009), para. 16; Committee against Torture, Concluding Observations: Philippines, UN Doc. CAT/C/PHL/CO/3 (2016), para. 39.
[25] See, for example, Committee against Torture, Concluding Observations: Poland, UN Doc. CAT/C/POL/CO/7 (2019), para. 34(e); Committee against Torture, Concluding Observations: Philippines, UN Doc. CAT/C/PHL/CO/3 (2016), para. 40.
[26] Committee against Torture, Concluding Observations: Nicaragua, UN Doc. CAT/C/NIC/CO/1 (2009), para. 16.
[27] K.L. v. Peru, Human Rights Committee, views of October 24, 2005, Case No. 1153/2003, para. 6.3; LMR v. Argentina, Human Rights Committee, views of April 28, 2011, Case No. 1608/2007, paras. 9.2, 10; Mellet v. Ireland, Human Rights Committee, views of November 17, 2016, Case No. 2324/2013, paras. 7.4, 7.6; Whelan v. Ireland, Human Rights Committee, views of July 11, 2017, Case No. 2425/2014, paras. 7.4–7.7.
[28] Human Rights Committee, General Comment No. 36, UN Doc. CCPR/C/GC/36 (2018), para. 8.
[29] Camila v Peru, Committee on the Rights of the Child, views of June 13, 2023, Case No. 136/2021, para 8.12.
[30] See, for example, African Commission on Human and Peoples’ Rights, General Comment No. 4 (2017), para. 58; Committee for the Prevention of Torture in Africa, Inter-Session Activity Report (May 2017 to November 2017) and Thematic Report on Denial of Abortion and Post-Abortion Care as Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (2017), art. 5; I.V. v. Bolivia, Inter-American Court of Human Rights, November 30, 2016, para. 270; R.R. v. Poland, European Court of Human Rights, no. 27617/04, November 28, 2011, paras. 161–162; P. and S. v. Poland, European Court of Human Rights, no. 57375/08, January 30, 2013, paras. 168–169; Manuela et al. v. El Salvador, Inter-American Court of Human Rights, November 2, 2021, para. 241; V.C. v. Slovakia, European Court of Human Rights, no. 18968/07, August 2, 2012, paras. 119–120.
[31] Human Rights Council, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment Report on the Gendered Aspects of Torture, Juan E. Méndez, UN Doc. A/HRC/31/57 (2016), paras. 42, 44.
[32] Brief of United Nations Mandate Holders as Amici Curiae in Support of Respondents, Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (September 20, 2021).
[33] See ICRC, “Customary IHL Database” (see note 2), rule 88.
[34] ICRC, Commentary on the First Geneva Convention (see note 17), art. 3, para. 578.
[35] ICRC, “Customary IHL Database” (see note 2), rule 88.
[36] ICRC, Commentary on the First Geneva Convention (see note 17), art. 3, para. 577.
[37] Ibid., art. 3, para. 578; see also P. Viseur Sellers, “(Re)Considering Gender Jurisprudence,” in F. Ní Aoláin, N. Cahn, D. Haynes, and N. Valji (eds), The Oxford Handbook of Gender and Conflict (Oxford: Oxford University Press, 2018).
[38] ICRC, Commentary on the First Geneva Convention (see note 17), art. 3, para. 578, footnote 339.
[39] CEDAW Committee, General Recommendation No. 25, UN Doc. A/59/38 (2004), paras. 8–12; Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 20, UN Doc. E/C.12/GC/20 (2009), paras. 9–10; Human Rights Committee, General Comment No. 28, UN Doc. CCPR/C/21/Rev.1/Add.10 (2000), para. 3.
[40] CEDAW Committee, General Recommendation No. 24, UN Doc. A/54/38/Rev. 1 (1999), para. 11.
[41] Human Rights Committee, General Comment No. 28 (see note 39), paras. 2, 3, 5, 8, 10.
[42] See, for example, UNFPA and Center for Reproductive Rights, ICPD and Human Rights: 20 Years of Advancing Reproductive Rights through UN Treaty Bodies and Legal Reform (New York: UNFPA and Center for Reproductive Rights, 2013).
[43] See, for example, Human Rights Committee, General Comment No. 36 (see note 28), para. 8; CEDAW Committee, General Recommendation No. 35, UN Doc. CEDAW/C/GC/35 (2017), para. 18; CESCR, General Comment No. 22, UN Doc. E/C.12/GC/22 (2016), paras. 10, 28.
[44] CEDAW Committee, Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, UN Doc. CEDAW/C/OP.8/GBR/1 (2018), para. 65.
[45] CESCR, General Comment No. 22 (see note 43), paras. 2, 30–32.
[46] CEDAW, General Recommendation No. 28, UN Doc. CEDAW/C/GC/28 (2010), para. 11.
[47] CEDAW, General Recommendation No. 30 (see note 12), para. 52(c); see also African Commission on Human and Peoples’ Rights, General Comment No. 2 (2014), paras. 21, 22, 25, 46; Committee for the Prevention of Torture in Africa (see note 30), para. 49.
[48] ICRC, “Customary IHL Database” (see note 2), rule 134; Convention Relative to the Treatment of Prisoners of War, 75 UNTS 135 (1949), art. 14.
[49] CRC, “Customary IHL Database” (see note 2), rule 134; Convention Relative to the Treatment of Prisoners of War, 75 UNTS 135 (1949), art. 14.
[50] ICRC, Commentary on the Third Geneva Convention: Convention (III) relative to the Treatment of Prisoners of War (1960), art. 14.
[51] Ibid.; ICRC, “Customary IHL Database” (see note 2), rule 134.
[52] ICRC, “Customary IHL Database” (see note 2), rules 109, 134; Prosecutor v. Akayesu, International Criminal Tribunal for Rwanda, Case No. IT-96-4-T, September 2, 1988, para. 688; Prosecutor v. Furundzija, International Criminal Tribunal for the Former Yugoslavia, Case No. IT-95-17/1-T, December 10, 1988, para. 185.
[53] R. Rubio-Marin, “Reparations for Conflict-Related Sexual and Reproductive Violence: A Decalogue,” William and Mary Journal of Race, Gender, and Social Justice 19/69 (2013), p. 75; see also Human Rights Council, Report of the UN Working Group on the Issue of Discrimination against Women in Law and in Practice, UN Doc. A/HRC/32/44 (2016), para. 63.
[54] Charlesworth and Chinkin (see note 4); Office of the UN High Commissioner for Human Rights, Background Paper on the Role of the Judiciary in Addressing the Harmful Gender Stereotypes related to Sexual and Reproductive Health and Rights: A Review of the Case Law (Geneva: Office of the UN High Commissioner for Human Rights, 2018); C. Pickles and J. Herring, Women’s Birthing Bodies and the Law: Unauthorised Intimate Examinations, Power and Vulnerability (London: Bloomsbury Publishing, 2020).
[55] Crowe (see note 4), p. 16.
[56] Office of the UN High Commissioner for Human Rights (see note 54); R. J. Cook and S. Cusack, Gender Stereotyping: Transnational Legal Perspectives (Philadelphia: University of Pennsylvania Press, 2010); Mellet v. Ireland, Human Rights Committee, November 17, 2016, Case No. 2324/2013, paras. 14–15 (Cleveland, concurring).
[57] Cook and Cusack (see note 56); Quenivet (see note 4); C. O’Rourke, “The Rights of Women in Armed Conflict under International Law,” in C. O’Rourke (ed), Women’s Rights in Armed Conflict under International Law (Cambridge: Cambridge University Press, 2020); R. Holtmaat, “Article 5,” in Marsha Freeman, C. Chinkin, and B. Rudolf (eds), The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary (Oxford: Oxford University Press, 2012).
[58] Convention on the Elimination of All Forms of Discrimination against Women, G.A. Res. 34/180 (1979), art. 5.
[59] See, for example, CEDAW Committee, General Recommendation No. 35 (see note 43), paras. 26(c), 37(a), 38(a).
[60] L.C. v. Peru, CEDAW Committee, October 17, 2011, Case No. 22/2009, para. 7.7; see also CEDAW Committee, Summary of the Inquiry concerning the Philippines under Article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, UN Doc. CEDAW/C/OP.8/PHL/1 (2015), para. 42; ICRC, “Women and War” (October 11, 2018), https://www.icrc.org/en/document/women-war.
[61] Committee against Torture, General Comment No. 2, UN Doc. CAT/C/GC/2 (2008), para. 22; S. Cusack, “Gender Stereotyping as a Human Rights Violation: Research Report,” prepared for the Office of the UN High Commissioner for Human Rights (2013).
[62] See, for example, Human Rights Committee, General Comment No. 28 (see note 46), para. 5.
[63] ICRC, Commentary on the First Geneva Convention (see note 17), art. 12, para. 1427, footnotes 159–161; ICRC, Commentary on the Third Geneva Convention (2020, see note 17), art. 14, para. 1682, footnote 47.
[64] ICRC, Commentary on the Third Geneva Convention (2020, see note 17), art. 14, para. 1682.
[65] ICRC, Commentary on the First Geneva Convention (see note 17), art. 12, para. 1427, footnotes 159–161; ICRC, Commentary on the Third Geneva Convention (2020, see note 17), art. 14, para. 1682, footnote 47.
[66] ICRC, Commentary on the First Geneva Convention (see note 17), art. 12, paras. 1428–1429; ICRC, Commentary on the Third Geneva Convention (2020, see note 17), art. 16, paras. 1747–1748.
[67] ICRC, Commentary on the Third Geneva Convention (2020, see note 17), art. 16, para. 1761; see also ICRC, Commentary on the First Geneva Convention (see note 17), art. 3, para. 578; Sellers (see note 37).
[68] ICRC, Commentary on the Third Geneva Convention (2020, see note 17), art. 16, para. 1761.
[69] ICRC, Commentary on the First Geneva Convention (see note 17), art. 14, para. 1434; ICRC, Commentary on the Third Geneva Convention (2020, see note 17), art. 14, para. 1685; see also ICRC, Commentary on the Third Geneva Convention (2020, see note 17), art. 30, para. 2230.
[70] ICRC, Commentary on the First Geneva Convention (see note 17), art. 12, para. 1435.
[71] ICRC, Commentary on the Third Geneva Convention (2020, see note 17), art. 14, para. 1684.
[72] Ibid.
[73] See, for example, A. Radhakrishnan, E. Sarver, and G. Shubin, “Protecting Safe Abortion in Humanitarian Settings: Overcoming Legal and Policy Barriers,” Reproductive Health Matters 25/51 (2017); A. Bellal, “Who Is Wounded and Sick?,” in A. Clapham, P. Gaeta, and M. Sassòli (eds), The 1949 Geneva Conventions: A Commentary (Oxford: Oxford University Press, 2015). Changes appear in the online version available at https://opil.ouplaw.com/display/10.1093/law/9780199675449.001.0001/law-9780199675449-chapter-37.
[74] Bellal (see note 73), p. 765, para. 33; see also Radhakrishnan et al. (see note 73).
[75] ICRC, Commentary on the Third Geneva Convention (2020, see note 17), art. 14, para. 1685; see also ICRC, Commentary on the Third Geneva Convention (2020, see note 17), art. 30, para. 2230.
[76] ICRC, Commentary on the Third Geneva Convention (2020, see note 17), art. 30, para. 2230.
[77] CEDAW Committee, General Recommendation No. 24 (see note 40); CESCR, General Comment No. 22 (see note 43), para. 13.
[78] ICRC, Commentary on the Third Geneva Convention (2020, see note 17), art. 30, para. 2232.
[79] World Health Organization, “Sexual Reproductive Health and Rights in Emergencies,” https://healthcluster.who.int/our-work/thematic-collaborations/sexual-reproductive-health-and-rights-in-emergencies; Human Rights Council, Follow-Up on the Application of the Technical Guidance on the Application of a Human Rights-Based Approach to the Implementation of Policies and Programmes to Reduce Preventable Maternal Mortality and Morbidity, UN Doc. A/HRC/39/26 (2018), paras. 41, 55.
[80] Inter-Agency Working Group on Reproductive Health in Crises, “Minimum Initial Service Package (MISP),” in Inter-Agency Working Group on Reproductive Health in Crises (ed), Inter-Agency Field Manual on Reproductive Health in Humanitarian Settings (2020).
[81] Ibid.
[82] See, for example, ICRC, “Customary IHL Database” (see note 2), rule 134, footnotes 5, 22.
[83] Center for Reproductive Rights, “The World’s Abortion Laws” (2021), http://worldabortionlaws.com/index.html.
[84] Center for Reproductive Rights, “Global Trends: Abortion Rights” (2022), https://reproductiverights.org/global-trends-abortion-rights-infographic-9-14-22.
[85] Ibid.
[86] See UN Department of Economic and Social Affairs, Abortion Policies and Reproductive Health around the World (New York: UN Department of Economic and Social Affairs, 2014).
[87] R. Cook and B. Dickens, “Learning from Comparative Abortion Law,” in J. Smits, J. Husa, C. Valcke, and M. Narciso (eds), Elgar Encyclopedia of Comparative Law, 3rd edition (Cheltenham: Edward Elgar Publishing, 2023); B. Ganatra, C. Gerdts, C. Rossier, et al., “Global, Regional, and Subregional Classification of Abortions by Safety, 2010–14: Estimates from a Bayesian Hierarchical Model,” Lancet 390/2372 (2017); World Health Organization, Abortion Care Guideline (Geneva: World Health Organization, 2022), p. 2.
[88] Cook and Dickens (see note 87). Courts upholding laws: Constitutional Court, U-I-60/1991, February 21, 2017 (Croatia); Constitutional Court, August 28, 2017, corresponding to Bulletin No. 9895-11, STC Rol No. 3729(3751)-17 CPT (Chile); Constitutional Council, Décision No. 2001-446 DC, June 27, 2001 (France); Supreme Court, Acción de inconstitucionalidad (AI) 146/2007 y su acumulada 147/2007, August 2008 (Mexico); Constitutional Tribunal, Acórdão No. 75/2010 of 26th March, Diário da República No. 60/2010, Série II de 2010-03-26 (Portugal); Constitutional Court, PL. ÚS 12/01, Dec. 4, 2007 (Slovakia). Courts finding restrictive criminal laws on abortion unconstitutional: Supreme Court, 13/3/2012, F., A.L. s/medida autosatisfactiva (259.XLVI) (Argentina); Plurinational Constitutional Tribunal, Sentencia 0206/2014, February 5, 2014 (Bolivia); Supreme Court, ADPF 54/DF, March 12, 2012 (Brazil); Constitutional Court, February 21, 2022, Sentencia C-055/22 (Colombia); Constitutional Court, Sentencia No. 34-19-IN/21 Y Acumulados, April 28, 2021 (Ecuador); Constitutional Court, Case on the Crime of Abortion, Case No. 2017Hun-Ba127, April 11 2019 (Republic of Korea); Supreme Court, A Acción de inconstitucionalidad (AI) 148/2017, 2021 (Mexico); Supreme Court, Lakshmi Dhikta v. Government of Nepal, Writ No. WO-0757, 2067, 2009 (Nepal); Constitutional Court, Ruling No. 4/2563, February 19, 2020 (Thailand); Whole Woman’s Health v. Hellerstedt, 579 U.S. 582 (2016) (United States); June Medical Services v. Russo, 140 S.Ct. 2103 (2020) (United States). Courts holding restrictive laws constitutional: Supreme Court of Justice, Constitutional Chamber, March 17, 2004, Resolución No. 02792-04 (Costa Rica); Supreme Court, Decisión 18/98, November 20, 2007 (El Salvador); Constitutional Tribunal, Case No. K 1/20, OTK ZU A/2021, item 4, October 22, 2020 (Poland); Supreme Court, Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (2022) (United States).
[89] Radhakrishnan et al. (see note 73); Bellal (see note 73), pp. 762–765; Center for Reproductive Rights, “Legal Expert Convenings on International Law in Humanitarian Settings” (June–September 2020), discussions on file at the Center for Reproductive Rights; see also Global Justice Center, “Reference Language on Abortion and IHL” (2017), https://www.globaljusticecenter.net/files/ReferenceLanguage.1.20.2017.pdf.
[90] Center for Reproductive Rights, “Law and Policy Guide: Rape and Incest Exceptions,” https://maps.reproductiverights.org/law-and-policy-guide-rape-and-incest; Center for Reproductive Rights (2021, see note 83).
[91] Ibid.; see also World Health Organization (2022, see note 87), pp. 26–27.
[92] World Health Organization (2022, see note 87), pp. 26–27; see also K.L. v. Peru, Human Rights Committee, views of October 24, 2005, Case No. 1153/2003; L.C. v. Peru, CEDAW Committee, views of October 17, 2011, Case No. 22/2009; LMR v. Argentina, Human Rights Committee, April 28, 2011, Case No. 1608/2007; Tysiąc v. Poland, European Court of Human Rights, No. 5410/03, March 20, 2007; R.R. v. Poland, European Court of Human Rights, No. 27617/04, November 28, 2011 P. and S. v. Poland, European Court of Human Rights, No. 57375/08, January 30, 2013; A, B and C v. Ireland, European Court of Human Rights, No. 25579/05, December 16, 2010.
[93] World Health Organization (2022, see note 87), pp. 26–27.
[94] Ibid., pp. 24–25.
[95] Center for Reproductive Rights (2021, see note 83); see also World Health Organization, “Global Abortion Policies Database,” https://abortion-policies.srhr.org/.
[96] ICRC, Commentary on the Third Geneva Convention (2020, see note 17), art. 14, para. 1684, footnote 54.
[97] CEDAW Committee, General Recommendation No. 30 (see note 12); Human Rights Committee, General Comment No. 36 (see note 28).