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Forced Abortion as an International Crime: Recent Reports from Northern Nigeria

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According to a recent Reuters report, the Nigerian military has allegedly run a secret mass forced abortion program as part of its war against armed groups, including Boko Haram, in north-eastern Nigeria. Over a period of 10 years, the military has reportedly forced more than 10,000 women and girls, who were rescued from Boko Haram captivity, to undergo abortion procedures. These procedures were carried out in military custody without the women’s knowledge, choice, or consent. Some women were beaten, held at gunpoint, tied down, or drugged, while others were told that the pills or injections they were receiving were for treating illnesses like malaria or to restore their health. Although the Nigerian military has denied the allegations, the U.N. Secretary General, the U.S. Senate Foreign Relations Committee, the UK Foreign Affairs Committee, and Amnesty International have called for an investigation. The Nigerian Human Rights Commission has since confirmed that it will examine the allegations.

These allegations once again highlight how, during periods of conflict and large-scale human rights abuses, reproductive violence is more widespread than is often recognized and remains an often-overlooked aspect of women’s experiences of conflict and victimization. Calls for accountability for the program of forced abortion in Nigeria form part of a broader trend in scholarship and practice, where reproductive violence is increasingly being recognized as a distinct form of harm requiring legal recognition, protection, and redress. For instance, as part of the transitional justice process in Colombia, the Constitutional Court, the Special Jurisdiction for Peace and the Truth Commission, have taken significant steps in recent years towards providing accountability and reparations specifically for forms of reproductive violence, including forced abortion and forced contraception.

While in 2020 the Prosecutor of the International Criminal Court (ICC) concluded that there is a reasonable basis to believe that war crimes and crimes against humanity have been committed during the conflict in Nigeria, the status of a possible ICC investigation into this situation has not been made public. In the absence of a specific crime of forced abortion under international criminal law and given the possibility of an investigation into the situation in Nigeria by the ICC, the findings in the Reuters report raise the question of how to pursue legal accountability for forced abortion, both in Nigeria and more widely.

Routes to Accountability for Forced Abortion

Reproductive violence is a widespread yet still understudied phenomenon that occurs in times of both conflict and peace. It is a form of victimization often connected to but different from sexual violence, due to the distinct harm it inflicts and the underlying value it can be understood to violate: reproductive violence “involves a violation of reproductive autonomy or […] is directed at people because of their reproductive capacity.” The only forms of reproductive violence specifically criminalized as war crimes or crimes against humanity in the Rome Statute of the ICC are enforced sterilization and forced pregnancy. While forced abortion is not therefore specifically criminalized under international criminal law or the Rome Statute, such acts could nonetheless be charged as war crimes or crimes against humanity under the categories of torture or inhuman treatment, other inhumane acts, or persecution.

Torture

Under the Rome Statute, a central element for torture or inhuman treatment is the infliction of severe physical or mental pain or suffering on the victim. Although no specific threshold exists for determining what degree of suffering meets the definition of torture, courts have interpreted severity to refer to an important degree of pain and suffering, assessed on a case-by-case basis. Acts such as beatings, rape, abductions, or being forced to watch sexual attacks inflicted on another person have been found to constitute torture under international criminal law.

The recent reporting on forced abortions inflicted on women and girls in northern Nigeria vividly illustrates the grave physical and mental suffering experienced by victims of forced abortion, which would likely meet the threshold of severity to constitute torture. Women, including some in advanced stages of pregnancy, described experiencing searing and intense pain after being forcibly injected with abortion-inducing drugs, being forced to take pills or to undergo surgical abortions. Many victims suffered significant blood loss, with some requiring blood transfusions as a result. Several women are reported to have died as a consequence of the forced abortions inflicted on them. The ages of the victims, some of whom were as young as 12 years old, and the circumstances in which the forced abortions took place, with some women beaten, held at gunpoint, tied down, or drugged, also exacerbate the severity of the suffering inflicted on victims.

The testimonies contained in this report resonate with those of victims of forced abortion elsewhere. For instance, Helena (a pseudonym), who in 2019 was found by the Colombian Constitutional Court to have experienced violations of her sexual and reproductive rights that may amount to war crimes, had forced abortion and forced contraception inflicted on her by the Fuerzas Armadas Revolucionarias de Colombia (FARC). Helena was made to swallow pills, had an abortion-inducing drug forcibly inserted and, while unconscious, a caesarean section was performed upon her. She lost a significant amount of blood as a result of the conditions in which the procedure was inflicted on her, has needed surgery to recover, and has since suffered chronic health problems, such as urinary infections, chronic renal failure, post-traumatic stress disorder, and depression.

Testimonies from victims of forced abortion in political prison camps contained in the 2014 report of the U.N. Human Rights Council Commission of Inquiry on the Democratic People’s Republic of Korea (“UNCoI on North Korea”) further substantiate the grave physical and mental harms experienced by victims of forced abortion. One witness described how, following a forced surgical abortion, “there was a lot of bleeding…I could not stand straight.” Another witness described screaming in pain as she was subjected to a forced abortion without anesthetic, which rendered her infertile.

In addition to the physical and mental suffering experienced by victims who have undergone abortions without having chosen to do so, the distinct health implications of forced abortions may be particularly serious where procedures take place in unsanitary conditions or without medical supervision, such as occurred in many of the cases of forced abortion in Nigeria. Forced abortion may also inflict wider emotional harms and mental suffering on victims linked to feelings of loss attached to a pregnancy they may have wished to continue but have been prevented from doing so. Ibrahim, a woman subjected to forced abortion as part of the Nigerian military’s program, explained to Reuters that, “If they had left me with the baby, I would have wanted it.” Such harms may be compounded by gender or cultural norms that impose particular expectations on how women conduct their reproductive lives. For instance, in contexts where abortion is stigmatized or illegal, such as in northern Nigeria, this may affect how victims understand and process their experience and may cause additional layers of harm after their initial victimization.

These reports and testimonies expose the severity of suffering and harm inflicted by forced abortion, which would likely satisfy the threshold of severity to constitute torture under international criminal law. This analysis is supported by the findings of the U.N. Human Rights Committee and Committee on the Elimination of Discrimination against Women (CEDAW), which have determined that forced abortions may amount to violations of the prohibition of torture or cruel, inhuman or degrading treatment or punishment. The U.N. Special Rapporteur on violence against women has similarly concluded that, among other forms of reproductive violence, “forced abortions […] constitute violations of a woman’s physical integrity and security of person. In cases, where, for instance, government officials utilize physical force and/or detain women in order to force them to undergo these procedures, these practices may amount to torture and cruel, inhuman and degrading treatment.” The UNCoI on North Korea has substantiated this analysis in determining that forced abortions subject women to a level of intentional and severe mental and physical suffering that satisfies the threshold of torture under international human rights law.

In the case of Nigeria, and depending on whether the particular conduct satisfies other elements of these crimes, acts of forced abortion could therefore be charged as the crime against humanity of torture, if proved to form part of a widespread or systematic attack against a civilian population, or the war crimes of torture or inhuman treatment. The nexus to the armed conflict required to constitute war crimes would be supported in this case by the information contained in the Reuters report of the involvement of soldiers and military facilities in the conduct, the reported aim of which is to prevent children of insurgents taking up arms in future.

Other Inhumane Acts

An alternative avenue for charging forced abortion would be through the residual category of “other inhumane acts” as a crime against humanity. Other inhumane acts require that the perpetrator inflicted great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act. This element would likely be satisfied by the nature of the injuries and harms inflicted on victims of forced abortion discussed above.

The definition of “other inhumane acts” further requires that the act was of a similar character to the other acts enumerated as crimes against humanity. In assessing the required similarity in character, violations of basic human rights have been identified at the ICC as being a relevant interpretative standard.

In this regard, in addition to violating the right to be free from torture, cruel, inhuman or degrading treatment, acts of reproductive violence, including forced abortion, have also been found to constitute violations of other fundamental rights by various international human rights bodies. Notably, the U.N. Committee on Social, Economic and Cultural Rights and the Special Rapporteur on the right to health have determined that forced abortions violate the right to health, including rights to sexual and reproductive health. Both CEDAW and the U.N. High Commissioner for Human Rights have similarly concluded that forced abortion violates rights to decide on the number and spacing of children, to marry and found a family, to privacy, and to non-discrimination.

In other words, developments in human rights law confirm that reproductive violence, including forced abortion, is a distinct form of violence that violates specific fundamental rights. The ICC Appeals Chamber in the Ongwen case, the first trial involving charges for reproductive violence at an international criminal tribunal, has recently confirmed that such rights are also protected by international criminal law, determining that the crime of forced pregnancy “seeks to protect, among others, the woman’s reproductive health and autonomy and the right to family planning.”

The Reuters report suggests that the forced abortion program in Nigeria relied on deception and physical force against women and girls to inflict abortions on them. Several of the women who spoke to Reuters said that they resented not having been given any choice about whether to undergo these often-perilous abortion procedures. By in this way involving violations of reproductive autonomy and other reproductive rights, and in line with the findings in the Ongwen case as to the nature of the rights protected by the crime of forced pregnancy, acts of forced abortion can be understood as being of a similar character to other acts that constitute crimes against humanity. In addition, the nature of the suffering and harm inflicted by forced abortions, discussed above, rises to levels of comparable gravity to other acts that constitute crimes against humanity, such as torture, rape, or other forms of sexual violence. In this respect, forced abortion is also comparable in nature and gravity to acts that have previously been characterized by the ICC as other inhumane acts, such as forced circumcisions, forced marriage and brutal killings and mutilations in front of family members. As such, forced abortions could also be characterized as the crime against humanity of other inhumane acts.

Gender-Based Persecution

Finally, forced abortion could also constitute persecution as a crime against humanity. Persecution involves depriving one or more persons of fundamental rights by reason of the identity of a group or collectivity. The fundamental rights that have been identified by various international courts and tribunals as applicable to charges of persecution have included rights such as the rights to life, liberty, security of person, equality, and non-discrimination, to be free from cruel, inhuman or degrading treatment, and rights to property. As outlined above, acts of forced abortion have been found to constitute violations of a number of fundamental rights, which would therefore satisfy this element.

In addition, to qualify as persecution, such acts would need to have been committed with an intent to discriminate against the victim, such as on the grounds of race, religion, or gender. The Reuters investigation in Nigeria uncovered that, when they were rescued by the military from Boko Haram captivity, women and girls were often separated from other rescued people. Women who were visibly pregnant and those who were identified as being pregnant through urine tests or through questioning as to their last menstrual period were then taken to specific locations where they were forced to undergo abortions. In line with the conclusions of the UNCoI on North Korea, based on the nature of this conduct and the fact that it was targeted at these women’s reproductive capacity, these acts of forced abortion could therefore also constitute persecution on the grounds of gender.

Consolidating Protections for Reproductive Rights under International Criminal Law

The allegations of a large-scale program of forced abortion carried out by the Nigerian military provides further evidence of the systematic nature of reproductive violence that takes place in the context of conflict and large-scale human rights abuses. While the status of a possible ICC investigation into the situation in Nigeria has not been made public, the evidence uncovered by the Reuters report on forced abortion underlines the importance of ensuring that reproductive violence is taken into account in any potential future investigation. Any such investigations, whether domestic or international, should follow the important precedents recently set in Colombia, where a number of transitional justice bodies have recognized and are taking measures to investigate reproductive violence as a distinct category of harm requiring legal recognition, protection and redress. For the ICC, doing so would also provide an opportunity to build on the important precedent set in recognizing reproductive violence in the Ongwen case and would contribute to consolidating protections for reproductive autonomy and rights under international criminal law.

IMAGE: A woman walks through a structure erected for newly arrived IDPs (Internally Displaced People) in Pulka. With Boko Haram attacks on civilians, Pulka is one of many outposts in Nigeria’s remote northeast region turned into a military base so soldiers can protect satellite camps and humanitarian agencies can distribute aid. (Photo by STEFAN HEUNIS/AFP/Getty Images)

The post Forced Abortion as an International Crime: Recent Reports from Northern Nigeria appeared first on Just Security.

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