Prefatory
Crimes against humanity and war crimes, including rape, sexual slavery, torture, and persecution, inflict severe physical and psychological suffering on victims, violating human rights and international law.[1] The dire humanitarian crisis compounds existing issues, significantly impacting maternal health, leading to an alarming increase in stillbirths and miscarriages. Femicide, specifically gender-related killings of women and girls, adds a nuanced layer to these crimes.[2]

The unique challenges faced by expecting Afghan mothers in displacement and transit, including limited healthcare access, food insecurity, and exposure to communicable diseases, are addressed. Post-resettlement challenges, such as reduced healthcare utilization and the loss of family support networks, further intensify the crisis.

The paper also examines the criminalization of forced pregnancy by the International Criminal Court (ICC).[3] While the ICC's recognition of forced pregnancy as a crime against humanity is a significant triumph, the lack of attention to prosecution mechanisms raises critical questions.[4] The complexities involved in defining, proving, and prosecuting forced pregnancy necessitate a careful examination of legal frameworks and international cooperation.

The economic instability resulting from the withdrawal, coupled with natural disasters, has strained the healthcare sector, hindering the provision of prenatal care and support. The urgent need for sustained efforts to address maternal health challenges in Afghanistan is emphasized, with a call for comprehensive strategies addressing root causes, including poverty, education, and child marriages. The paper highlights conceptual challenges in defining forced pregnancy within the ICC Statute.

Ambiguities in the separation of intent from the act of confinement and the need to prove the involuntary nature of pregnancy present practical and ethical dilemmas. Clear guidelines within the ICC Statute are crucial for effective prosecution, balancing the rights of the accused and justice for victims within the framework of international law.

Forced Pregnancy and war Crime
Crimes against humanity and war crimes encompass a range of reprehensible acts that violate fundamental principles of human rights and international law.[5] Among these heinous offenses are the abhorrent acts of rape and sexual slavery, which, when committed systematically and on a large scale, constitute crimes against humanity. The perpetrators of such crimes exploit their victims in a degrading manner, causing immense physical and psychological suffering.

Torture, another egregious crime, whether committed during times of conflict or as part of a systematic policy, is considered both a war crime and a crime against humanity. The intentional infliction of severe physical or mental pain upon individuals violates the most basic principles of human dignity and international law. Imprisonment or severe deprivation of physical liberty in violation of fundamental rules of international law is recognized as a crime against humanity. The deliberate confinement of individuals, often accompanied by harsh conditions and denial of basic rights, constitutes a grave violation of human rights norms.[6]

Unlawful confinement, as a war crime, pertains to the wrongful and unauthorized detention of individuals during armed conflicts. This act infringes upon the rights of the detained and is a breach of international humanitarian law. Persecution, when based on gender, is a crime against humanity that involves the intentional and severe deprivation of fundamental rights of a particular group or collectivity. Gender-related persecution targets individuals based on their gender, subjecting them to discriminatory treatment and grave human rights abuses.

The crime against humanity of other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or mental health encompasses a broad range of atrocities. These acts, often committed systematically, inflict significant harm on individuals, leading to severe physical or psychological consequences.

Femicide
The concept of "femicide" adds a nuanced layer to these crimes, specifically addressing gender-related killings of women and girls.[7] While the interpretation of what constitutes a gender-related killing may vary, it is clear that femicide involves acts of violence, including intimate partner violence, that culminate in the killing of women.

Notably, not all female homicides are necessarily gender-related, highlighting the need for a specific focus on acts that are indisputably motivated by gender, thereby emphasizing the gravity and distinct nature of femicide within the broader spectrum of crimes against humanity and war crimes. The unique challenges they face necessitate a comprehensive approach that addresses various risk factors and promotes positive outcomes for both mothers and their babies.[8]

One significant risk factor is the limited availability of appropriate healthcare, including prenatal care, during displacement and transit. To counteract this, it is imperative for healthcare providers, nurses, and birth educators to implement strategies that enhance access to quality prenatal care. During displacement and transit, insufficient access to food and clean water poses an additional risk.

Providers must prioritize nutritional support and ensure that pregnant women receive adequate sustenance, recognizing the critical role nutrition plays in maternal and fetal health. Integrating nutritional education and support groups can contribute to improved outcomes for both mother and baby.

Expecting mothers may also face exposure to communicable diseases such as tuberculosis, prevalent in their places of origin or transit.[9] Healthcare providers must implement measures to identify and address potential health threats through regular screenings and vaccinations. This proactive approach is essential to prevent the transmission of diseases that could adversely affect maternal and fetal health.

Non-communicable diseases, such as diabetes, further contribute to pregnancy complications. It is essential for healthcare providers to be vigilant in monitoring and managing these conditions, ensuring that expecting Afghan mothers receive appropriate care and support throughout their pregnancy journey.

Post-resettlement, challenges persist, including reduced utilization of healthcare services due to unfamiliarity, lack of gender-congruent providers, concerns about cost, fear, or distrust. Bridging these gaps requires healthcare providers to cultivate bilateral trust, offer gender-concordant care when feasible, and address cultural nuances in a respectful and understanding manner.[10]

Barriers to accessing healthcare after resettlement, including language options, health insurance requirements, and transportation issues, must be systematically addressed. By providing linguistically and culturally concordant care, healthcare providers can alleviate these barriers, facilitating seamless access to essential services.

Misunderstandings about emergency care services, perspectives on hospital versus home births, and cultural beliefs around pregnancy and birth require clear communication and education. By honoring the lived experiences and community knowledge of expecting Afghan mothers, healthcare providers can build trust and establish effective channels of communication.

The loss of family support networks due to forced displacement adds another layer of complexity. To mitigate this, support groups and community initiatives can be established to create a sense of belonging and mutual assistance among expecting mothers. In the face of the dire humanitarian crisis, there is a palpable assurance that safe passage will be granted to facilitate the transportation of crucial medical and healthcare goods.

Additionally, the deployment of mobile health clinics, essential for reaching remote and underserved communities, is anticipated. The imperative for such measures stems from the pressing need for humanitarian assistance, particularly in regions where conflict and instability have severely impacted the health infrastructure. However, amidst this backdrop, the United Nations Population Fund (UNFPA) is deeply troubled by the escalating risk of child marriages, foreseeing a potential surge in the mortality rate.[11]

This concern arises from a confluence of factors, including the exacerbation of poverty, heightened anxiety over the interruption of girls' education, and the looming threat of forced marriages involving militants and young adolescent women. This complex interplay of socio-economic and security challenges compounds the already critical issue of maternal mortality.

The challenges of collecting accurate information are exacerbated by the widespread control exerted by militants over large swathes of the country. This lack of access to certain regions hinders the comprehensive gathering of data, casting doubt on the precision and reliability of Afghanistan's reported maternal mortality rate.

Such uncertainties underscore the difficulties faced by international organizations and health authorities in assessing the true extent of maternal health challenges in the country. In the midst of these complexities, the UNFPA emphasizes the urgent need for sustained efforts to address the multifaceted challenges surrounding maternal health in Afghanistan.[12]

Beyond the immediate concerns of humanitarian aid and safe passage, tackling the root causes of child marriages, mitigating the impact of poverty, and ensuring access to education for girls are imperative steps. Only through a comprehensive and sustained approach can Afghanistan hope to make significant strides in reducing maternal mortality and securing a healthier and more stable future for its women and children.[13]

The economic instability, compounded by the freeze on Afghan assets and recent natural disasters, has not only hampered the functioning of the healthcare sector but has also sent shockwaves through the broader economy. The repercussions of this economic turmoil reverberate across various aspects of daily life, impacting access to healthcare, nutrition, and overall well-being.

The scarcity of resources and funding for healthcare exacerbates the challenges faced by pregnant women, increasing the risk of stillbirths and miscarriages. Furthermore, the disruption in the economy has far-reaching consequences on the overall stability of the country.

The healthcare sector, already stretched thin by years of conflict, is grappling with the additional burden of meeting the escalating healthcare needs of the population. The lack of economic stability not only limits the procurement of essential medical supplies but also impedes the ability to attract and retain qualified healthcare professionals, further compromising the quality of maternal care.[14]

The Criminalization of Forced Pregnancy
The criminalization of forced pregnancy by the International Criminal Court (ICC) stands as a significant triumph for women's rights and the broader cause of human rights.[15] The ICC's Statute, in a historic move, explicitly 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 violations of international law."[16]

This recognition marks a critical step forward in acknowledging and addressing the historical and systematic use of forced impregnation as a tool of assimilation, subjugation, and control over enemy, minority, or enslaved populations. The concept of a crime specifically centered around forced pregnancy is relatively new in the realm of international law. Throughout history, the practice of forced impregnation has been employed as a ruthless tactic to manipulate and control populations.

It has been used to alter the ethnic composition of communities, exploit vulnerable groups, and perpetrate violations of international law. The recognition of forced pregnancy as a criminal act by the ICC is a testament to the evolving understanding of human rights and the imperative to hold perpetrators accountable for such heinous offenses.[17]

Despite the optimism surrounding the ICC's acknowledgment of forced pregnancy as a crime, there remains a conspicuous gap in the discourse – the lack of attention to how this crime will be prosecuted. This oversight raises crucial questions about the practical implementation of the statute and the mechanisms in place to bring perpetrators to justice.

The prosecution of forced pregnancy requires a comprehensive approach, considering the complex dynamics involved. Legal frameworks, investigative procedures, and the protection of victims must be carefully delineated. Specialized expertise and resources are essential to navigate the intricacies of cases involving forced pregnancy and ensure a fair and effective legal process.

Moreover, the international community must actively engage in raising awareness about the gravity of forced pregnancy as a crime against humanity. Advocacy, education, and collaboration are pivotal to dismantling the historical acceptance of such practices and fostering a global commitment to eradicate forced impregnation.[18]

As the ICC takes on the responsibility of addressing forced pregnancy, it is imperative that the international community and human rights organizations actively contribute to the ongoing dialogue. This includes advocating for robust legal mechanisms, providing support for victims, and fostering international cooperation to ensure that those responsible for this abhorrent crime are held accountable for their actions.

In doing so, the ICC can fulfill its mandate to deliver justice, protect human rights, and send a powerful message that forced pregnancy will not be tolerated in the pursuit of a just and equitable world. The legal intricacies surrounding the crime of forced pregnancy necessitate a careful examination of its elements and the burden of proof required for prosecution.[19] In order to establish the commission of this crime, the prosecutor must demonstrate that the accused engaged in the "unlawful confinement" of one or more women who were forcibly made pregnant.

The intent behind such confinement is critical, as it must be proven that the perpetrator aimed to impact the ethnic composition of a population or commit other grave violations of international law. This requirement applies whether the accused is being tried for forced pregnancy as a war crime or a crime against humanity.

Contrary to common misconceptions, the actus reus of forced pregnancy does not hinge on the act of rape and impregnation itself. Instead, it centers on the unlawful confinement of women who have been forcibly made pregnant. In essence, the focus shifts from the direct perpetrator of the sexual violence to the individual responsible for confining the pregnant woman.

This distinction underscores the broader scope of accountability within the context of forced pregnancy.To meet the criteria for proving forced pregnancy, the prosecutor must go beyond establishing the mere confinement of a forcibly impregnated woman.[20] The ICC Statute explicitly stipulates that the confinement must be carried out "with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law."

The term "grave violations" remains somewhat ambiguous, leaving room for interpretation. However, it is reasonable to assume that this encompasses a range of heinous acts, including confining forcibly impregnated women for purposes such as conducting scientific experiments, reminiscent of the atrocities committed by the Nazis during World War II. Additionally, confinement with the intention to enslave both the mother and child could also fall under the umbrella of "grave violations."

Regrettably, the ICC Statute does not offer a precise definition of what constitutes "grave violations." This lack of clarity leaves room for evolving interpretations and necessitates ongoing legal discourse to refine and expand the understanding of the term. It emphasizes the importance of legal scholars, practitioners, and international organizations actively engaging in discussions to ensure a comprehensive and nuanced approach to addressing forced pregnancy as a crime against humanity or war crime. [21]

As the legal landscape evolves, continued efforts to delineate the boundaries and scope of these crimes are crucial for fostering accountability and justice in cases involving forced pregnancy.

The definition of forced pregnancy, as outlined by the International Criminal Court (ICC) Statute, presents conceptual challenges that warrant a more precise delineation. While the actus reus is notably the unlawful confinement of a woman forcibly made pregnant, ambiguities arise regarding the requirement that the confinement must be carried out with the intent of "affecting the ethnic composition of any population or carrying out other grave violations of international law."[22] A close textual reading suggests a separation between the act of forcibly making a woman pregnant and the subsequent intent, as indicated by the comma that separates the two phrases.

This separation implies that the heightened requirement applies specifically to the act of confinement. Consequently, the prosecutor may not need to delve into the motivations behind the act of making a woman forcibly pregnant, such as the reasons underlying a rape. Despite this interpretation, there remains room for improvement in the clarity of the ICC Statute on this crucial point, leaving a degree of ambiguity in its application.[23]An additional conceptual challenge pertains to what the prosecutor must prove concerning the pregnancy itself.

Presumably, the prosecution would need to present evidence establishing that the pregnancy was involuntary and resulted from actions such as rape. This introduces a complex scenario where the person accused of forced pregnancy may challenge the evidence, even if they were not directly responsible for impregnating the victim. Proving forced pregnancy, therefore, often necessitates demonstrating rape committed by a party not currently before the court.[24]

However, requiring the prosecution to hold a full trial for rape each time someone is accused of forced pregnancy presents practical challenges. The burden of presenting comprehensive evidence for rape in every case might be logistically impractical and resource-intensive. This raises critical questions about the extent of evidence the prosecution must provide on this point and the standard of proof required for conviction.[25] Specifically, will the judges need to be convinced beyond a reasonable doubt that rape occurred to convict the perpetrator of forced pregnancy?

Addressing these conceptual problems requires a careful examination of legal frameworks and the development of clear guidelines within the ICC Statute. Striking the right balance between upholding the rights of the accused and ensuring justice for the victims is paramount. Clarity in the definition and criteria for proving forced pregnancy is essential to streamline legal proceedings, facilitate effective prosecution, and uphold the principles of accountability and justice within the realm of international law.

The Rome Statutes
The ICC Statute, unfortunately, lacks explicit clarification on what constitutes "unlawful confinement" in the context of forced pregnancy. While Article 21(3) of the ICC Statute explicitly forbids the application of discriminatory laws, the provision that forced pregnancy "shall not in any way be interpreted as affecting national laws relating to pregnancy" suggests a substantial degree of deference to these national abortion laws.[26] This poses a concerning possibility that the ICC might have to navigate cases where national laws contradict international standards on human rights, especially in terms of reproductive rights.[27]

This ambiguity obliges the International Criminal Court (ICC) to grapple with the intricacies of determining whether suspects have violated their own nation's abortion laws, adding a layer of complexity to the prosecution of forced pregnancy.[28]

An intriguing aspect of the ICC's treatment of forced pregnancy lies in the provision stating that the definition "shall not in any way be interpreted as affecting national laws relating to pregnancy." This particular language was added to Article 7.2(f) due to the insistence of the Vatican and states opposed to abortion. Concerns were raised that forced pregnancy charges might be used to challenge anti-abortion laws and potentially jeopardize Catholic hospitals that refused to provide abortions. Consequently, this provision ensures that the ICC does not recognize a general right to abortion, emphasizing a deference to national laws.[29]

This apparent deference to national law in forced pregnancy prosecutions marks a departure from the general approach taken by the ICC in prosecuting other crimes. Typically, the ICC resorts to applying domestic law only as a last resort and after thorough examination of the ICC Statute and international materials.[30] However, the unique treatment of forced pregnancy introduces a distinct dynamic, where the ICC is compelled to consider national abortion laws even when they might be fundamentally discriminatory or sexist.

The underlying argument supporting the termination of pregnancy in cases of forced pregnancy centers on the ongoing psychological harm inflicted upon the victim by being forcibly denied access to contraception. The essence of the crime is not solely the act of being forcibly made pregnant, which would typically fall under rape or other criminal statutes. Instead, the core injustice lies in compelling a woman to carry a child against her will, a violation that resonates with the very definition of forced pregnancy.

In practical terms, this means that if forced pregnancy occurs in a state where abortion is not permitted and the confinement aligns with the laws of that state, ICC prosecution becomes challenging. Conversely, if the crime transpires in a jurisdiction that allows abortion, the ICC would theoretically be in a position to prosecute the forced pregnancy. This intricacy raises critical questions about the balance between international human rights standards and deference to national laws in the pursuit of justice within the context of forced pregnancy prosecutions.

The recognition of forced pregnancy
The recognition of forced pregnancy as a crime against humanity and a war crime within the International Criminal Court (ICC) Statute sheds light on the multifaceted manifestations and complexities surrounding this abhorrent act.[31] While many commentators argue that forced pregnancy should also be classified as genocide, the ICC does not explicitly treat it as such.

The parallel inclusion of forced pregnancy in both Article 7 (crimes against humanity) and Article 8 (war crimes) of the ICC Statute underscores the gravity and versatility of this crime, albeit with distinct challenges emerging depending on the legal context in which it is prosecuted. In the realm of crimes against humanity, forced pregnancy is defined in Article 7 of the ICC Statute. This provision outlines the elements that constitute the crime when committed as part of a widespread or systematic attack directed against any civilian population.

The manifestations of forced pregnancy within this context encompass a deliberate and systematic effort to forcibly confine women and make them pregnant, with the intent of impacting the ethnic composition of a population or carrying out other grave violations of international law.

On the other hand, when prosecuted as a war crime under Article 8 of the ICC Statute, forced pregnancy takes on a distinct character. The elements of the crime, in this context, center on the unlawful confinement of women forcibly made pregnant within the context of an armed conflict. The intent behind such acts is to affect the ethnic composition of any population or commit other grave violations of international law during the conflict.[32]

The challenges arise when forced pregnancy is considered in the context of genocide. Despite being argued by commentators as constituting genocide, the ICC Statute does not explicitly treat forced pregnancy as such. Genocide, as defined in Article 6 of the ICC Statute, involves specific acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. The absence of explicit recognition of forced pregnancy as a genocidal act introduces legal complexities and raises questions about the intent and criteria required to establish genocide.

Prosecuting forced pregnancy under these various legal frameworks requires a nuanced understanding of the specific elements relevant to each context. The intent behind the crime, the circumstances in which it occurs, and the impact on populations all contribute to the challenges faced in legal proceedings. The distinctions between crimes against humanity, war crimes, and genocide necessitate careful consideration and legal analysis to ensure that justice is served and that the unique manifestations of forced pregnancy are appropriately addressed within the framework of international law.

Forced pregnancy, when prosecuted as a crime against humanity, involves a set of legal criteria outlined in Article 7(2)(f) of the International Criminal Court (ICC) Statute.[33] To secure a conviction, the perpetrator's conduct must align with the defined parameters of forced pregnancy, as mentioned earlier.

Additionally, the crime must be integral to a "widespread or systematic attack directed against a civilian population." The perpetrator must possess knowledge that their actions are part of or intended to be part of this broader attack. The concept of an "attack directed against a civilian population" is crucial for crimes against humanity and involves a course of conduct with multiple acts, such as murder, committed against any civilian population.

Forced pregnancy is situated within a context of violence, where crimes like murder and rape are prevalent, even though a full-scale war might not be underway. The attack, however, must be "widespread or systematic," signifying a pattern of occurrences, although not necessarily both systematic and widespread. This requirement is applicable to all crimes against humanity.

Forced pregnancy under aegis of ICC
Forced pregnancy, when considered in the context of genocide, poses a unique challenge within the framework of the International Criminal Court (ICC) Statute.[34] Unlike crimes against humanity and war crimes, forced pregnancy is not explicitly treated as a constituent act of genocide. The ICC Statute enumerates five acts that constitute genocide when committed with the intent to "destroy, in whole or in part, a national, ethnical, racial, or religious group," and forced pregnancy does not fall within this explicit list.[35]

The preamble of the ICC Statute emphasizes the unity of all peoples and the shared heritage of their cultures. Treating forced pregnancy as genocide raises profound concerns as it implies an endorsement of the notion that a child must be ethnically and culturally pure to belong to a particular group. Paradoxically, those who argue for the inclusion of forced pregnancy as a genocidal act inadvertently operate within the same framework that perpetrators of the crime may espouse.

The requisite intent for committing genocide also appears to be incongruent with the intent required for forced pregnancy. Genocide necessitates the intent to "destroy, in whole or in part, a national, ethnical, racial, or religious group." On the other hand, forced pregnancy requires the perpetrator to have the intention to impact the ethnic composition of a population or commit other violations of international law through unlawful confinement.[36]

The intent for forced pregnancy is typically inferred from the circumstances of the confinement itself. For instance, when a pregnant woman is held until she gives birth to a child perceived as belonging to an adversary, it suggests that the confinement was intended to affect the ethnic composition of her group.

However, the same set of facts does not necessarily give rise to genocide unless having the intent to impact the ethnic composition of a group also inherently means the perpetrator always has the intent to "destroy in whole or in part." Such an interpretation would effectively blur the lines between war crimes, crimes against humanity, and genocide. It would imply that every instance of forced pregnancy, even those not involving an explicit intent to destroy a group, could be classified as genocide.

The framers of the ICC Statute likely did not intend for such an expansive interpretation.[37] Thus, the exclusion of forced pregnancy from the list of acts constituting genocide reflects the nuanced understanding required when categorizing different international crimes. While forced pregnancy remains a heinous act with severe consequences, the legal intricacies surrounding intent and the distinct elements of genocide necessitate a careful and specific approach within the framework of the ICC Statute.

Prosecution Forced Pregnancy
Prosecuting forced pregnancy as a crime against humanity encounters challenges. The actus reus of forced pregnancy, which is unlawful confinement, often occurs independently and away from any widespread or systematic attack. Unlike crimes like murder that are typically part of attacks on civilian populations, forced pregnancy is essentially a crime committed against an individual woman.[38]

The confinement may take place far from the initial attack, creating a disconnection that complicates legal proceedings. Some legal scholars argue that the requirement for the crime to be part of an attack might need to be relaxed for sex-related crimes like forced pregnancy.[39]

The ICC Statute does not explicitly address whether the prosecution must prove the existence of a national policy to commit forced pregnancies. Without such a policy, the perpetrator may not be deemed to act "pursuant to or in furtherance of a State or organizational policy." The statute emphasizes that it is the attack itself that must be "pursuant to or in furtherance of a State or organizational policy," whereas forced pregnancy merely needs to be a component of the broader attack.

When forced pregnancy is considered as a war crime under Article 8 of the ICC Statute, it must occur in the context of either an international or non-international armed conflict. This classification as a war crime does not designate forced pregnancy as a "grave breach" under the Geneva Conventions, where rape and other sex crimes are not explicitly acknowledged as "grave breaches."[40]

The perpetrator must be aware of the factual circumstances establishing the existence of an armed conflict, whether international or internal. The definition of armed conflict under the ICC Statute is not precise, but it excludes situations of internal disturbances, tensions, or isolated acts of violence.

War crimes are prosecutable only in protracted armed conflicts between governmental authorities and organized armed groups or between such groups. This limitation implies that the ICC lacks jurisdiction to prosecute war crimes in scenarios without two hostile parties engaged in protracted armed conflict. This, while limiting, underscores the ICC's jurisdiction over individuals for the most serious crimes of international concern.

Conclusion
In conclusion, the recognition of forced pregnancy as a crime against humanity and a war crime within the International Criminal Court (ICC) Statute signifies a significant step towards addressing the multifaceted challenges and complexities associated with this abhorrent act.

The inclusion of forced pregnancy in both Article 7 (crimes against humanity) and Article 8 (war crimes) underscores its gravity and versatility, acknowledging its occurrence in different contexts but also presenting distinct challenges for prosecution. While commentators argue for the classification of forced pregnancy as genocide, the ICC Statute does not explicitly treat it as such.

The unique treatment of forced pregnancy in Article 7(2)(f) introduces complexities, particularly regarding the requirement that the crime be part of a widespread or systematic attack against a civilian population. The actus reus of forced pregnancy, involving unlawful confinement, often occurs independently, posing challenges in establishing a connection to the broader attack.

Moreover, forced pregnancy as a war crime under Article 8 necessitates occurrence within the context of an armed conflict, with the perpetrator aware of the conflict's existence. The ICC's jurisdiction is limited to protracted armed conflicts between governmental authorities and organized armed groups, excluding situations of internal disturbances or isolated acts of violence. The absence of forced pregnancy in the list of acts constituting genocide in Article 6 introduces additional challenges.

The distinct intent required for genocide, to "destroy, in whole or in part, a national, ethnical, racial, or religious group," does not align seamlessly with the intent behind forced pregnancy, which focuses on impacting the ethnic composition of a population through unlawful confinement. Addressing these challenges requires ongoing legal discourse, collaboration, and advocacy. Clarity in defining forced pregnancy within each legal context, along with the development of guidelines for prosecution, is essential.

The international community, human rights organizations, and legal scholars play crucial roles in contributing to this dialogue, ensuring that justice is served, and perpetrators are held accountable for this egregious crime. Ultimately, the comprehensive and sustained approach advocated here is imperative for fostering accountability, upholding human rights, and working towards a just and equitable world.

End Notes:

1. 'War Crimes In Afghanistan' (2022) 26 World Affairs: The Journal of International Issues 24.
2. Julie L Arostegui, 'Gender and the Security Sector: Towards a More Secure Future' (2015) 14 Connections 7.
3. Hashimy (n 1).
4. Farhad Malekian, 'Crimes Against Humanity', Principles of Islamic International Criminal Law (Brill 2011) accessed 3 February 2024.
5. Shahram Dana, 'Beyond Retroactivity to Realizing Justice: A Theory on the Principle of Legality in International Criminal Law Sentencing' (2009) 99 The Journal of Criminal Law and Criminology (1973-) 857.
6. United Nations, 'Rome Statute of the International Criminal Court' (1999) 26 Social Justice 125.
7. Anna Costanza Baldry and Maria José Magalhães, 'Prevention of Femicide' in Shalva Weil, Consuelo Corradi and Marceline Naudi (eds), Femicide across Europe (Bristol University Press 2018) accessed 3 February 2024.
8. Marco Colagrossi and others, 'Intimate Partner Violence and Help-Seeking: The Role of Femicide News' (2023) 87 Journal of Health Economics 102722.
9. Kathryn Miele, Sapna Bamrah Morris and Naomi K Tepper, 'Tuberculosis in Pregnancy' (2020) 135 Obstetrics and gynecology 1444.
10. Alexander W O'Donnell, Jaimee Stuart and Karlee J O'Donnell, 'The Long-Term Financial and Psychological Resettlement Outcomes of Pre-Migration Trauma and Post-Settlement Difficulties in Resettled Refugees' (2020) 262 Social Science & Medicine 113246.
11. 'United Nations Population Fund' accessed 3 February 2024.
12. Nancy Glass and others, 'The Crisis of Maternal and Child Health in Afghanistan' (2023) 17 Conflict and Health 28.
13. Sophia Jones, 'Kabul Maternity Ward Attack Shows Dangers Afghan Women Face | TIME' (19 May 2020) accessed 4 January 2024.
14. Margaret E Kruk and others, 'High-Quality Health Systems in the Sustainable Development Goals Era: Time for a Revolution' (2018) 6 The Lancet. Global Health e1196.
15. 'Forced Pregnancy: A Commentary on the Crime in International Criminal Law' (Amnesty International) accessed 3 February 2024.
16. ibid.
17. Milan Markovic, 'Vessels of Reproduction: Forced Pregnancy and the ICC' (2007) 16 Michigan State Journal of International Law 439.
18. Rosemary Grey, 'Reproductive Crimes in International Criminal Law' in Indira Rosenthal, Valerie Oosterveld and Susana SáCouto (eds), Gender and International Criminal Law (Oxford University Press 2022) accessed 3 February 2024.
19. Markovic (n 17).
20. 'Symposium in Pursuit of Intersectional Justice at the International Criminal Court: Group Three – Observations on Forced Pregnancy – Protecting Personal and Reproductive Autonomy' (Opinio Juris, 3 May 2022) accessed 3 February 2024.
21. 'States' Responses to Issues Arising from the ICC Statute: Constitutional, Sovereignty, Judicial Cooperation and Criminal Law', , States' Responses to Issues Arising from the ICC Statute (Brill Nijhoff 2021) accessed 3 February 2024.
22. Karen Engle, 'Feminism and Its (Dis)Contents: Criminalizing Wartime Rape in Bosnia and Herzegovina' (2005) 99 The American Journal of International Law 778.
23. Markovic (n 17).
24. ibid.
25. Padma Bhate-Deosthali and Sangeeta Rege, 'Denial of Safe Abortion to Survivors of Rape in India' (2019) 21 Health and Human Rights 189.
26. Nations (n 6).
27. ibid.
28. ibid.
29. ibid.
30. ibid.
31. Aldo Zammit Borda, 'Reproductive Violence in International Criminal Law and the ICC OTP's Revised Policy on Gender-Based Crimes: An Emerging Concept' (EJIL: Talk!, 22 December 2023) accessed 3 February 2024.
32. 'Symposium in Pursuit of Intersectional Justice at the International Criminal Court: Group Three – Observations on Forced Pregnancy – Protecting Personal and Reproductive Autonomy' (n 20).
33. Nations (n 6) 19.
34. Rosemary Grey, 'The ICC's First "Forced Pregnancy" Case in Historical Perspective' (2017) 15 Journal of International Criminal Justice 905.
35. ibid.
36. Johanna Ray Vollhardt and Michelle Sinayobye Twali, 'The Aftermath of Genocide: Divergent Social Psychological Processes Among Victim and Perpetrator Groups' in Leonard S Newman (ed), Confronting Humanity at its Worst: Social Psychological Perspectives on Genocide (Oxford University Press 2019) accessed 3 February 2024.
37. Jack Goldsmith, 'The Self-Defeating International Criminal Court' (2003) 70 The University of Chicago Law Review 89.
38. Engle (n 22).
39. George P Fletcher, 'Substance and Procedure' in George P Fletcher (ed), The Grammar of Criminal Law: Volume Two: International Criminal Law (Oxford University Press 2019) accessed 3 February 2024.
40. Barbara Bedont and Katherine Hall-Martinez, 'Ending Impunity for Gender Crimes under the International Criminal Court' (1999) 6 The Brown Journal of World Affairs 65.

Written By:

• Ramzia Bunyad, Student at Institute of Legal and Policy Research
  Email: Ram.temory@gmail.com
• Hajar Parsa, Student at Institute of Legal and Policy Research
• Munisa Bina, Student at Institute of Legal and Policy Research
• Hadia Kohistani, Student at Institute of Legal and Policy Research
• Tahira Naser, Student at Institute of Legal and Policy Research