Access to Abortion for Rape Victims in Armed Conflicts: A Feminist Perspective

Abstract

Adopting a feminist perspective, this article focuses on the protection of women's right to reproductive health during armed conflicts and, in particular, on access to safe abortion services for rape victims. Indeed, although women are disproportionately affected by conflicts, and their sexual and reproductive needs are exacerbated by the spread of sexual and gender-based violence, there is a lack of specific attention on this topic in the literature. The article therefore aims to investigate whether an obligation to provide access to safe abortion services for rape victims can be interpretatively derived from the set of international rules governing armed conflict. To this end, it will start by focusing on abortion as part of the non-discriminatory medical treatment that states must provide to the wounded and sick. It will then address the interpretation of the absolute obligation to treat humanely persons who are taking no active part in the hostilities, and investigate what such treatment entails when it comes to pregnant women who are victims of rape in armed conflicts. Finally, state practice and the practice of the UN Security Council in the framework of the Women, Peace and Security Agenda will be investigated.

1. Introduction

In the context of armed conflicts, the use of gender-based violence and rape has long been dismissed as ‘collateral damage’ of war: sexual violence, which has always accompanied wartime events, has remained largely invisible, or has even been justified as a private matter, obscuring the prominent role that political and military leaders often play in its planning.¹ Instead, it is nowadays widely recognised that conflict-related sexual violence is often used as a ‘weapon of war’, strategically employed to terrorise and humiliate victims or target a particular ethnic group.² Moreover, women are often chosen as objectives of such violence for gendered reasons as symbolic bearers of their culture or because of their reproductive capacities, which then become a resource to be commandeered for political or ideological purposes.³ Through the indiscriminate recourse to war rape, women's bodies thus end up themselves becoming a battleground between the parties.⁴

Ongoing conflicts are no exception. The United Nations (UN) Special Representative of the Secretary-General on Sexual Violence in Conflict, Pramila Patten, denounced the extreme brutality of the conflict in Ethiopia's Tigray region and, more recently, the pervasiveness of the use of sexual violence in Ukraine, arguing that ‘women's rights don't end when war begins’.⁵ On 6 July 2023, the UN Secretary-General reported 2,455 incidents of conflict-related sexual violence verified by the United Nations in 2022 alone: the victims were women in 94 per cent of the cases and girls in about 30 per cent.⁶ Although high, these numbers do not reflect the actual scale and spread of these events globally. Indeed, it was estimated that for every confirmed case, between 10 and 20 are undocumented and unaddressed.⁷ Therefore, the true magnitude of the phenomenon could reach approximately fifty thousand incidents of conflict-related sexual violence in a single year.

Starting from Pramila Patten's words and adopting a feminist perspective, this article aims to analyse an under-researched aspect: the protection of women's right to reproductive health during armed conflicts and, in particular, access to safe abortion services for rape victims in the light of international humanitarian law (IHL) and, to a lesser extent, international human rights law (IHRL). Although women are disproportionately affected by conflicts, and their sexual and reproductive needs are exacerbated by the spread of sexual and gender-based violence, there is a lack of specific attention in the academic literature regarding access to safe abortion services.⁸ However, in armed conflicts, it is precisely such services – even for victims of war rape – that are predominantly denied, as argued by the Global Justice Center, which has been campaigning since 2005 to promote gender equality, even during conflict, with a focus on women's sexual and reproductive health (SRH).⁹ Therefore, the groundbreaking work carried out by this international organisation inevitably constitutes the starting point for any reflection on the topic, including the present analysis.

Moreover, that access to safe abortion services is still a controversial and sensitive issue is evidenced by the fact that in 2019 the United States applied pressure to remove any direct reference to these services from the final text of Resolution 2467(2019) of the Security Council of the United Nations (UNSC),¹⁰ as we will analyse below. Indeed, as Sara De Vido pointed out, ‘not only the words “sexual and reproductive rights” but also the less strong expression “access to sexual and reproductive services” are difficult to use’¹¹ in binding or non-binding legal instruments at the international level.

However, as several studies have shown, the lack of access to this service results in an increase in the use of unsafe abortions and, thus, in maternal mortality.¹² The consequence is that violation of the sexual autonomy of rape victims is frequently accompanied by violation of their reproductive autonomy, the ability to determine freely whether and in what circumstances to reproduce.¹³ Furthermore, the full exercise of this right is a necessary condition for the enjoyment of all other human rights (starting with the rights to health and bodily autonomy), respect for human dignity, and the accomplishment of effective gender equality.¹⁴ This is even more true in armed conflict situations, which further reinforce women's systemic disadvantages in everyday life. Indeed, pervasive gender discrimination can be considered the result of centuries of patriarchal, colonial and racialised legal and policy frameworks which have normalised chronic female subordination. If the legal protection of women is often insufficient, in times of armed conflicts these structural and pre-existing inequalities – determined by factors such as patriarchal oppression, entrenched gender stereotypes, and taboos – are compounded by exceptional circumstances that make access to abortion services even more difficult.

Among the numerous barriers that hinder access to such services, the collapse or weakening of state infrastructure and national health services as a result of conflict must be included. In addition, safety concerns, the lack of medical personnel and viable routes, fear of stigmatisation for termination of pregnancy and of retaliation in the event of a rape denunciation – often necessary in a request for access to abortion – must be considered.¹⁵ The presence of restrictive national laws on abortion represents another critical obstacle. Just think that, as evidenced by a UN Report, only 61 per cent of states allow a victim of rape to terminate the resulting pregnancy legally. In this respect there are considerable regional differences: 89 per cent of European and North American countries allow abortion in this situation, compared with only 38 per cent of countries in Northern Africa and Western Asia.¹⁶ Finally, there has been traditional reluctance by humanitarian organisations to provide such necessary medical treatment. The reasons given are numerous and range from the alleged difficulty of providing such services in humanitarian settings and the illegality of abortion in the contexts in which they operate, to the restrictions donors impose on the use of funds.¹⁷

As has been pointed out, the use of sexual violence during conflicts tends to explode, making the issue of access to abortion very significant, given the large number of women and girls who may need this service and the consequences that lack of access may entail. Therefore, this article aims to investigate whether an obligation to provide access to safe abortion services for rape victims can be interpretatively derived from the set of international rules governing armed conflict. However, it is necessary to start with some introductory considerations that are useful for delimiting the scope of the analysis and clarifying the methodology and the approach used.

2. Preliminary issues

2.1. The scope of the analysis

The scale of the humanitarian challenge posed by the situation of women in contemporary conflicts does not find a simple answer in international law. After the long and heavy silence of international law on women's status and rights in armed conflicts,¹⁸ today we are witnessing a proliferation of legal norms and obligations through the interaction of three different regimes: IHL, IHRL, and international criminal law (ICL). Furthermore, the UNSC has been the site of some of the most significant developments concerning women's rights in armed conflicts, which have been integrated into its agenda since Resolution 1325 (2000) on Women, Peace and Security (WPS).¹⁹ This fragmentation – a transversal phenomenon affecting international law in general – creates the danger of conflicting and incompatible rules, principles, rule-systems and institutional practices, as noted by the International Law Commission (ILC).²⁰ Such problems, however relevant, are beyond the scope of this analysis.²¹

However, the need to overcome fragmentation explains why the spectrum of the investigation will cover not only IHL but also IHRL to verify whether rape victims are holders of reproductive rights in conflict situations.²² After all, the applicability of IHRL in times of armed conflict has been confirmed by the jurisprudence of the International Court of Justice (ICJ)²³ and is undisputed today.²⁴ Indeed, as Gerald Draper argued, IHL should not be interpreted ‘as an alternative to the law of peace, the old and classic positioning, but seen as an exceptional and derogating regime from that of human rights, contained, controlled and fashioned by the latter at every point possible’.²⁵ While it is true that for a long time IHL has held a dominant position over IHRL, it is only an integrated approach between the two regimes that can potentially improve the status of victims of armed conflict. Moreover, the underlying rationale for both should be the same – that is, of a humanitarian nature²⁶ – and the two bodies of law share a common value in that they seek to protect human life and dignity.²⁷

Furthermore, it will not be possible to trace back all the main developments regarding the safeguard of SRH achieved within IHRL since the 1990s, thanks to the feminist commitment and the work of various human rights monitoring bodies.²⁸ However, an element that is worth underlining and that will also emerge in the analysis is that the most significant advances in this field are disproportionately contained within soft law documents.²⁹ Indeed, soft law instruments, such as general comments and recommendations, have been essential tools for advancing feminist articulations of women's human rights.³⁰ Many achievements in this field are a result of the work of the Committee on the Elimination of Discrimination against Women (CEDAW Committee) and other independent UN bodies. However, as is well known, the legal status of the ‘overwhelmingly soft nature of feminist-informed developments’ has been strongly criticised by feminist scholars.³¹

This applies also to abortion. Indeed, it should be noted that the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa is the only binding regional human rights treaty that recognises abortion as a human right in certain circumstances,³² including cases of rape.³³ Otherwise, the right to abortion is not an enumerated right, and ‘at the international level, it is hard to argue that abortion is a stand-alone right’.³⁴ Yet, as will be seen in the following sections, several UN treaty bodies have established that the lack of access to safe abortion services may, depending on the circumstances (including almost always cases of rape), lead to violations of women's human rights of various kinds, such as the right to health,³⁵ the right to be free from cruel, inhuman or degrading treatment,³⁶ the right to physical integrity,³⁷ and the right to privacy.³⁸

Finally, the analysis will examine whether the obligation to provide safe abortion services can also be derived from IHL, and not only from IHRL. Thus, the article will test IHL to see whether, when analysed through a gendered lens – as is further explained in the next section – such an obligation for states can be interpretatively inferred. Indeed, there are at least three reasons that militate in favour of this attempt besides the purely reconstructive purpose.

The first of these is that the Geneva Conventions (GCs) have been almost universally ratified.³⁹ Therefore, to derive the right of access to abortion from IHL would provide a more solid conventional basis than deriving it from international human rights treaties, which, although widely ratified, can count on a lower ratification rate. This is relevant because, as has already been argued and as will be better explained in the following sections, the obligation of states to provide safe abortion services following rape has been interpretively derived by UN human rights treaty monitoring bodies, the interpretation of which certainly does not bind states that are not party to those human rights agreements.⁴⁰ By way of illustration, it should be recalled that the United States – which, in an almost isolated and ‘anachronistic’⁴¹ manner, continues to maintain that in armed conflicts ‘where humanitarian law is applicable, it operates to exclude human rights law’⁴² – has not ratified many of the human rights treaties that will be relevant to the analysis, starting with the International Covenant on Economic, Social and Cultural Rights (ICESCR)⁴³ and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW Convention).⁴⁴

Moreover, there is also an idealist afflatus. Indeed, it follows from Common Article 1 of the 1949 GCs that states parties, irrespective of whether they participate in a specific armed conflict, are obliged not only to respect but also to ensure compliance with the Convention by the other contracting parties.⁴⁵ Obviously, it is an obligation of means and not of result, to be performed with due diligence.⁴⁶ The interests protected by the Conventions are so crucial to the human person as to ensure that its provisions are universally respected – that is, creating obligations erga omnes partes.⁴⁷ Thus, deriving the obligation to provide safe abortion services in conflict situations also from IHL and not only from IHRL may have this further implication. In the face of a violation of the GCs by one party to the conflict, the other contracting parties should do whatever is reasonably within their power – in particular, by using their influence over the party that commits the violation – to prevent and end it by ensuring compliance with the Conventions.⁴⁸ In the case at hand, this obligation could be implemented through various channels, such as diplomatic action or public denunciation.⁴⁹

Finally, as will be further discussed,⁵⁰ state practice is also beginning to emerge to support the appropriateness of deriving this obligation from IHL.

2.2. Methodology

With regard to the interpretation technique, the rules set out in the 1969 Vienna Convention on the Law of Treaties, in particular Article 31, will be used as they are generally considered to reflect customary international law.⁵¹ Therefore, the starting point will always be the normative data obtainable from the ordinary meaning of the words in the text, also taking into account the context, the object and the purpose of the treaty.⁵² In addition, the criterion crystallised in Article 31(3)(c) will be particularly relevant, mostly in the interpretation of IHL rules. This paragraph provides that a treaty shall be interpreted in the light of ‘any relevant rules of international law applicable in the relations between the parties’. This practice was inaugurated by the case law of the International Criminal Tribunal for the former Yugoslavia (ICTY), which interpreted IHL fundamental guarantees – such as the prohibitions of torture, cruel or inhumane treatment – through IHRL.⁵³ More recently, the International Committee of the Red Cross (ICRC) has also recognised that IHRL – where relevant and in relation to shared concepts – can be used to interpret the GCs on the basis of the principle of systemic integration.⁵⁴ This hermeneutical operation can raise critical issues, which cannot be addressed here.⁵⁵

The supplementary means of interpretation provided in Article 32 of the Vienna Convention will also be considered where relevant. They do not constitute an alternative, autonomous method for interpretation but will be used in order to confirm the meaning resulting from the application of Article 31.⁵⁶ To this end, the concept of subsequent practice under Article 32, as interpreted by the ILC, will be used.⁵⁷

Moreover, the article adopts a feminist approach⁵⁸ because, for several reasons, this perspective seems to be the most appropriate for the type of analysis to be conducted. For example, such an approach allows us to unveil the power dynamics that influence the creation and implementation of international law and continue to operate to this day, unearthing the patriarchal structures of its institutions and gender bias.⁵⁹ Such dynamics will become evident, for instance, in relation to the inclusion of rights to SRH in the UNSC WPS Agenda.⁶⁰ Indeed, international law and, in particular, IHL can be considered as ‘a reflection of masculine assumptions’,⁶¹ unable to take into account forms of gender-based discrimination and systemic inequalities that are too often overlooked. On the contrary, a feminist approach allows us to identify norms that apparently ‘can be formally gender-neutral but gendered in conception and gender-biased in practice’,⁶² highlighting possible gaps in the protection of women's rights in conflict situations. In order to take into account the gendered dimension of conflicts and the differential impact they have on women and, therefore, to better protect and make visible their specific needs – including access to safe abortion services – a ‘reconceptualisation and revision of IHL’⁶³ in a feminist key is necessary.

A gendered feature of IHL that has a distinctive impact on women civilians is its narrow scope of application aimed at protecting women almost exclusively from harm inflicted by the enemy. As Michelle Jarvis and Judith Gardam have highlighted, ‘the protections applicable to prisoners of war and civilians reflect this narrow scope, applying respectively to persons in the power of the enemy and in the hands of a party or occupying power of which they are not national’.⁶⁴ Instead, in the present case the obligation to provide access to safe abortion services will be derived from IHL rules concerning the protection of the wounded and sick – and those arising from Common Article 3 – which are applicable to all persons not taking part in hostilities, to whichever party they belong.⁶⁵ In such circumstances, all states parties to the conflict ‘have, first and foremost, the responsibility for protecting and assisting the populations under their control and should organize and carry out necessary relief actions’.⁶⁶ It is the only way to consider that, in times of war, women are more exposed to violence, even from members of their own community and state.⁶⁷

Traditionally, feminist criticism has stressed the inability of the IHL regime to move beyond a ‘male norm’ when addressing the impact of armed conflict upon women and to address the underlying inequalities in social structures that predated the conflict.⁶⁸ While broadly agreeing with this position, the thesis that is developed in this analysis is that, by examining the existing rules from a gender perspective, the obligation of the parties to the conflict to provide access to safe abortion services for victims of rape in conflict situations can be interpretatively derived. Therefore, failure to comply with this obligation entails a violation of IHL, giving rise to international state responsibility. This applies even in cases where the domestic legislation of the state in question prohibits abortion. Indeed, in conflict situations, IHL rules supersede national laws, which cannot exempt a state from an international obligation.⁶⁹ As we shall see, this position is now supported by several Western countries and the European Parliament and Commission, who consider that access to abortion for rape victims in conflict situations must be guaranteed ‘despite being in breach of national law by parties to the conflict’⁷⁰ as, otherwise, this would constitute a violation of IHL.

To this end, the article will use a tripartite structure. First, it will focus on abortion as part of the necessary, appropriate and non-discriminatory medical treatment that states must provide for the wounded and sick. Subsequently, it will address the interpretation of the absolute obligation to treat humanely persons who are taking no active part in the hostilities, and investigate what such treatment entails when it comes to women victims of rape in armed conflicts. In both cases, references will be made to IHL and IHRL to demonstrate how a combined reading of these two branches of international law allows for a guarantee of complementary and mutually reinforcing protection in situations of armed conflict, and for the imposition of stringent obligations on states parties regarding access to SRH services. Finally, state practice and the practice of the UNSC in the framework of the WPS Agenda will be examined.

3. Abortion as necessary and non-discriminatory medical treatment

3.1. The protection granted by IHL to the wounded and sick

As Liesbeth Lijnzaad noted, ‘it would be unrealistic to expect the protection during armed conflict to be fully taking into account gender issues when this has not been realized in society even during peace’.⁷¹ At first glance, IHL seems to confirm this assumption, as it does not expressly refer to access to safe abortion services and appears silent on the issue. However, the interpretation of some IHL provisions can be helpful for the advancement of these women's rights in armed conflicts, in some circumstances even regardless of the content of national law, as has been noted.

First of all, the notion of ‘wounded and sick’ and the resulting obligations under IHL should be considered. Indeed, Article 10 of the Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (AP I) provides:

All the wounded, sick and shipwrecked, to whichever Party they belong, shall be respected and protected. In all circumstances they shall be treated humanely and shall receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition.⁷²

A mirror provision is provided in the Second Additional Protocol (AP II) relating to the Protection of Victims of Non-International Armed Conflicts.⁷³ For non-international armed conflicts, the protection granted to the wounded and sick by Common Article 3 to the four Geneva Conventions is also relevant.

In IHL treaties there is no definition of these terms, the meaning of which is left to common sense and good faith.⁷⁴ The rationale was to avoid any restrictive interpretation or abuse.⁷⁵ The only criteria necessary to be categorised as wounded or sick are (i) the need for medical care, and (ii) abstention from any act of hostility.⁷⁶ So, to fall within this category, the fulfilment of any qualitative requisite regarding the severity of the medical condition is not required. The definition is not restricted to individuals who necessitate immediate medical care in the sense of emergency medical treatment, but includes those who need other curative or rehabilitative treatment,⁷⁷ and even those who are neither wounded nor sick in the usual sense of these words,⁷⁸ such as children or pregnant women. Indeed, it is the same Article 8(a) of AP I that, in clarifying the terminology used, specifies that the terms ‘wounded’ and ‘sick’ include ‘maternity cases’ and ‘expectant mothers’.⁷⁹ A similar equation between the status of the wounded and sick and that of expectant mothers is also found in Article 16 of GC IV.⁸⁰ Indeed, this legal regime aims to address the specific vulnerability in conflict situations deriving from the need for medical treatment or assistance.⁸¹

If these terms cover pregnant women, a fortiori, women who are pregnant as victims of rape in armed conflict cannot be excluded from this category. In these cases there is a clear need for medical assistance as a result of, inter alia, physical or psychological disorders resulting from sexual violence. Indeed, it should not be underestimated that rape as a weapon of war is often accompanied by extreme cruelty – gang rapes or the use of instruments are common – which can cause significant and often irreversible injuries to the victims. Furthermore, the resulting unwanted pregnancies and the hygienic-sanitary conditions connected with the war often lead to high maternal mortality rates.⁸² Finally, forcing a woman to carry an unwanted pregnancy to term frequently causes a severe adverse impact on her mental health, a consequence that should not be underestimated.

Therefore, as Annyssa Bellal stated, ‘nothing seems to prevent interpreting the Conventions as including rape victims in the category of the wounded and sick’.⁸³ If it can be argued that victims of rape are on an equal footing with the wounded and sick within the meaning of the Geneva Conventions⁸⁴ and, as such, are entitled to medical care, it may be questioned whether states have an obligation to ensure access to SRH services. Although the harm caused by sexual violence in armed conflict is multidimensional, physical and psychological, this article exclusively addresses the obligation to provide access to abortion.

Examining Article 10(2) of AP I,⁸⁵ two further preliminary considerations relating to state obligations can be elaborated. First, the term ‘in all circumstances’ ensures that military necessity cannot be invoked to justify non-compliance with the obligation to provide adequate medical care for the wounded and sick.⁸⁶ Second, the expression ‘to the fullest extent practicable and with the least possible delay’ unquestionably requires that the parties to the conflict act in good faith and make their best efforts to provide the required medical assistance as quickly as possible (taking account of the particular circumstances).⁸⁷ Indeed, it must be emphasised that the obligation to care for the wounded and sick by providing adequate medical assistance is an obligation of means. It is, therefore, an obligation that is subject to the best that can be achieved in the prevailing safe situation and with the available capacity, and must be performed with due diligence.⁸⁸ Not all states have the same resources, and it may not be possible for a state to provide all the wounded and sick with the medical care their condition requires.⁸⁹

Moreover, this obligation must be exercised in compliance with another cardinal principle of IHL: the prohibition of adverse distinctions based on sex in the provision of medical care.⁹⁰ Thus, this branch of law does not allow for distinctions other than those based on medical grounds. It is not enough for a rule to be formally neutral with regard to gender by prohibiting, as in this case, discrimination based on sex. For formal equality not to turn into a denial of justice, IHL must be ‘reinterpreted, expanded or rewritten to better address the need of female civilians’⁹¹ in such a way as not to reinforce endemic discrimination against women. Therefore, for this to happen, the differential impact that rape in armed conflicts has on men and women must be recognised. After all, the ban of adverse distinctions prohibits discrimination, not differentiated treatment.⁹² Being wounded as a result of rape can involve exposure to different risks, different stigmatisation and the need for different medical treatment, depending on whether the victim is a man or a woman.⁹³ The intrinsically unequal consequences of rape require that female victims be guaranteed access to SRH services, including abortion if they request it, as part of the full range of medically appropriate and necessary care adapted to their specific and additional needs. Obviously, the wishes and conditions of female victims and the safety and security of the humanitarian staff, as well as other contextual factors, will have to be considered.

In conclusion, states parties have an obligation to ensure that medical assistance provided to victims of rape in armed conflict is non-discriminatory. After all, this assumption finds confirmation even if one resorts to a teleological interpretation and considers the purpose and the object of the GCs, pursuant to Article 31(1) of the Vienna Convention. The terms ‘object’ and ‘purpose’ are often used as ‘a combined whole’,⁹⁴ which refers to the raison d’être of the treaty itself.⁹⁵ As the ICRC has ascertained, one of the overall objects and purposes of the GCs is to guarantee respect and protection for the wounded and sick precisely because ‘the balance between humanitarian considerations, on the one hand, and military necessity, on the other, is a hallmark of IHL’.⁹⁶ Well, if it is accepted that victims of rape in armed conflict are wounded as per the GCs, and that, as such, they are entitled to non-discriminatory access to the medical treatment their condition requires, the interpretation that the provision of abortion services falls within the medical treatment that states are obliged to provide is the only one that guarantees the effectiveness of the treaty's terms. Indeed, in the light of the purpose and the object of a treaty, the interpretation that allows the treaty to have an appropriate effect should always be privileged.⁹⁷

3.2. The complementary protection offered by IHRL: Core obligations and the non-discriminatory principle

Under IHL, as we have seen, victims of rape in armed conflict can be considered wounded and sick within the meaning of the GCs and, as such, states parties to the conflict have an obligation to provide them with medical care that is appropriate for their condition, and that is non-discriminatory. This includes access to safe abortion services. At this point it is useful to broaden the scope of the analysis to IHRL – which complements the protection afforded by IHL – and, in particular, to the right to health. The human right to health is recognised in numerous international instruments,⁹⁸ including Article 12 of the ICESCR. It does not contain a public emergency clause. So, in principle, it is applicable in times of armed conflict – as confirmed by the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health,⁹⁹ the UN High Commissioner for Human Rights,¹⁰⁰ the Committee on Economic, Social and Cultural Rights (CESCR),¹⁰¹ the ICJ,¹⁰² and many authors¹⁰³ – and is held by ‘everyone’ under the jurisdiction of states that have ratified the ICESCR.¹⁰⁴ However, it is worth mentioning that Article 4 contains a general limitation clause: states may impose restrictions on rights, but these restrictions must comply with the requirements specified in the provision.¹⁰⁵ In this context, the most relevant requirement is compatibility with ‘the nature of the right’ in question: limitations that infringe minimum core obligations are prohibited.¹⁰⁶

The core rights and obligations doctrine dates back to the 1986 Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, in which it was proposed that states parties are ‘obligated regardless of their level of economic development to ensure respect for minimum subsistence rights for all’.¹⁰⁷ This doctrine was further developed by Philip Alston, Rapporteur of the CESCR, according to which each right must give rise to an absolute minimum entitlement, in the absence of which a state party is to be considered to be in violation of its obligations.¹⁰⁸ Finally, in 1990, for the first time, the CESCR highlighted that ‘a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party’.¹⁰⁹ Conversely, the Covenant would lose its raison d’être. The Committee interpreted this set of obligations as implying immediate effect, immunity from the excuse of ‘insufficient resources’, not being retrogressive, and being directly applicable.¹¹⁰

Taking into consideration the Programme of Action of the International Conference on Population and Development¹¹¹ and the Alma-Ata Declaration,¹¹² the CESCR identified the minimum obligations concerning the right to health in its General Comment No 14. For this analysis, it is interesting to underline that these core obligations include ‘the non-discriminatory access to essential primary health care facilities, goods and services, especially for vulnerable or marginalised groups and the guarantee of reproductive, maternal (prenatal as well as post-natal) and child health care’,¹¹³ which is considered an obligation of comparable priority.

Essential primary health care must also include family planning and comprehensive abortion care if it is to be considered effective in protecting maternal and reproductive health, as the CESCR specified. Indeed, in 2016, in its General Comment No 22 on the right to sexual and reproductive health, the Committee returned to the concept of core obligations, arguing that states should be guided by international human rights instruments and jurisprudence, international guidelines and protocols established by UN agencies.¹¹⁴ In the list of core obligations in this sector, points (a), (c) and (e) are particularly relevant. They are, respectively:

• • the elimination of laws and practices that criminalise or obstruct a particular group's access to SRH services;

• • the guarantee of universal and equitable access to affordable, acceptable and quality services; and

• • the prevention of unsafe abortion and the provision of abortion and post-abortion care for those in need.¹¹⁵

Core obligations continue to exist in situations of conflict because they are non-derogable.¹¹⁶ However, during an armed conflict there ‘may be limits to a state's ability to fulfil all of these core obligations’.¹¹⁷ As the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health has stated, ‘in the absence of their own capacity, states should request assistance from other states, civil society and humanitarian organizations, especially to fulfil their core obligations’.¹¹⁸ It follows that if access to abortion services for those in need constitutes a core obligation, in order for a state to be able to attribute its failure to provide such services to a lack of available resources, it must demonstrate that ‘every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations’.¹¹⁹ In any event, states have an obligation not to prevent humanitarian organisations from providing essential medical care,¹²⁰ which includes abortion services in conflict situations.

Moreover, it is worth remembering that on several occasions both the CESCR and the CEDAW Committee have explicitly recognised that the rights to SRH are an integral part of the right to health protected by their respective Conventions and must be guaranteed by states in conflict situations.¹²¹ For example, to prevent unsafe abortions, states are required to guarantee all individuals access to affordable, safe and effective contraceptives, liberalise restrictive abortion laws, and guarantee access by women and girls to safe abortion services and quality post-abortion care¹²² in conflict situations.

Furthermore, it is interesting to note that the prohibition of adverse distinction on the basis of sex in IHL finds its counterpart in the principle of non-discrimination in IHRL. For the rights to SRH to be exercised in a non-discriminatory way, it is necessary that the needs of women, which are intrinsically different from those of men, are taken into consideration by providing appropriate services. Therefore, as the CEDAW Committee argued, it is discriminatory for a state to refuse to provide legally for the performance of certain reproductive health services that only women need.¹²³ Indeed, as reiterated in LC v Peru, states have the obligation under Article 12 ‘to take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning’.¹²⁴

Finally, in its General Recommendation No 30 on women in conflict situations, taking into account the differential impact of sexual violence on women's reproductive health, the CEDAW Committee urged states parties to ensure, at the minimum, access to ‘sexual and reproductive health and rights information during conflicts; psychosocial support; family planning services, including emergency contraception; maternal health services, prevention of vertical transmission and emergency obstetric care; safe abortion services and post-abortion care’.¹²⁵ Indeed, the right of women to make free and non-coercive decisions regarding their own body and reproductive capacity risks being violated if complete and non-discriminatory health services are not provided and, therefore, if the termination of pregnancy is not allowed for victims of rape.

4. Denial of abortion as a violation of the obligation to treat humanely persons taking no active part in the hostilities

Another relevant provision that comes to the fore in relation to rape victims in armed conflict and which seems to confirm the obligation of the parties to provide safe abortion is the obligation to treat humanely persons who are taking no active part in the hostilities with which the prohibition of cruel treatment and torture is connected. For example, Common Article 3 of the GCs – which defines the minimum protection to be accorded in all conflicts, including those of a non-international nature – provides that ‘[p]ersons taking no active part in the hostilities … shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria’.¹²⁶ As Jean Pictet recognised, this principle is the leitmotiv of the four GCs,¹²⁷ and is not merely a recommendation or a moral appeal but an obligation of the parties to the conflict.¹²⁸

IHL does not define this notion, the meaning of which ‘has to be considered in the concrete circumstances of each case, taking into account both objective and subjective elements, such as the environment, the physical and mental condition of the person, as well as his or her age, social, cultural, religious or political background and past experiences’.¹²⁹ The aim is the protection of inherent human dignity. So that no person receives treatment that is less than humane, it is necessary, therefore, to consider the specificities of men and women based on social, economic, cultural and political structures in society, the different ways in which armed conflict affects them, and their different needs following rape.

Furthermore, Article 3 lists a series of prohibitions that are merely specific examples of conduct that indisputably violates the absolute and without-exception obligation to treat humanely persons taking no active part in the hostilities. Among these, it is necessary to emphasise, for the purposes of the analysis, the prohibition of ‘(a) violence to life and person, in particular … cruel treatment and torture’. To be considered cruel, a treatment must produce severe suffering, which can be of a physical or psychological nature or result in a serious attack on human dignity upon a person taking no active part in the hostilities.¹³⁰ In the view of the ICTY, even the deprivation of adequate medical care can constitute this conduct.¹³¹

Therefore, a combined reading of the obligation to treat humanely persons taking no active part in the hostilities and the related prohibition of cruel treatment seems to mean that it is possible to assert that there is an obligation on all parties to the conflict to provide access to all medical care that is necessary for the reproductive health of rape victims in a non-discriminatory way.¹³² Indeed, forcing a woman or, more often, a girl to carry a rape pregnancy to term appears to be in stark contrast to the obligation to treat civilians with humanity: the denial of safe abortion services is obviously a lack of adequate medical assistance which produces severe suffering.¹³³ It can certainly result in physical and mental pain. Indeed, denying access to safe abortion services after rape, especially in emergency and marginalised situations, increases the maternal mortality rate and often produces permanent physical injuries.¹³⁴ Moreover, the lack of availability of this option is frequently detrimental to women's mental well-being and aggravates the social injuries in terms of stigmatisation faced by rape victims in armed conflict. It is a further form of re-victimisation of women and the infliction of trauma, which can constitute cruel treatment.

Therefore, there is an urgent need to reinterpret this behaviour from a gender perspective that allows us to go beyond its classic androcentric understanding.¹³⁵ Some developments in the field of IHRL further strengthen this interpretation. Denial of access to safe abortion services for rape victims can encompass cruel, inhuman or degrading treatment (or even torture in some cases), according to the Committee against Torture (CAT) and the Human Rights Committee (HRC).

So, in LMR v Argentina ¹³⁶ the HRC opined that the severe physical and psychological suffering resulting from the failure of the state to grant a girl access to a safe abortion following rape constituted a violation of Article 7 of the Covenant, which prohibits torture and cruel, inhuman or degrading treatment.¹³⁷ Similarly, in its Concluding Observations on Peru, for the first time the CAT Committee stated that restrictions on voluntary abortion, even in cases of rape, put women's physical and mental health at grave risk and constituted cruel and inhuman treatment.¹³⁸

Ronli Sifris – who believes that restrictions on abortion could be qualified as torture under IHRL – points out that the requirement that severe pain or suffering be intentionally inflicted is generally satisfied because these consequences are largely foreseeable.¹³⁹ Finally, in its General Comment No 36 on the right to life, the HRC stated:¹⁴⁰

Restrictions on the ability of women or girls to seek abortion must not, inter alia, jeopardise their lives, subject them to physical or mental pain or suffering which violates article 7, discriminate against them or arbitrarily interfere with their privacy. States parties must provide safe, legal and effective access to abortion where the life and health of the pregnant woman or girl is at risk, or where carrying a pregnancy to term would cause the pregnant woman or girl substantial pain or suffering, most notably where the pregnancy is the result of rape.

This position was also reiterated in 2017 by the CEDAW Committee in its General Recommendation No 35. Indeed, it argued that the denial or the delay of safe abortion are forms of gender-based violence that may amount to torture or cruel, inhuman or degrading treatment, depending on the circumstances.¹⁴¹ In this respect, a gender-sensitive approach is required to understand the level of pain and suffering experienced by women.¹⁴² Consequently, states must ensure available, accessible, adequate and quality abortion services without discrimination, even in wartime, to comply with the obligation of human treatment, regardless of the content of national law.

5. State practice and UNSC practice

Some states – including Norway, France, the United Kingdom, the Netherlands¹⁴³ – have expressed a position similar to that advocated in this analysis in statements regarding the interpretation of Common Article 3 of the GCs. These official statements relating to the meaning of the treaties can be relevant in terms of interpretation.

For a subsequent practice to constitute a means of authentic interpretation, it is necessary to establish the agreement of all the parties to the treaty, as formulated in Article 31(3)(b) of the Vienna Convention.¹⁴⁴ The practice recalled here certainly does not fall within this category. However, as the ILC established in 2018, the subsequent practice of one or more parties may also be relevant as a subsidiary means of interpretation under Article 32.¹⁴⁵ Subsequent practice under Article 32 has been recognised and applied by international courts, including the ICJ,¹⁴⁶ as a means of interpretation to which ‘recourse may be had’ to ‘confirm the meaning resulting from the application of Article 31’.¹⁴⁷ In this situation, the positions officially expressed by the above-mentioned states make it possible to confirm the interpretation resulting from the application of the criteria established by Article 31: denying abortion for rape victims can materialise as a violation of Common Article 3 of the GCs and the prohibition of inhumane treatment.¹⁴⁸ For example, the United Kingdom stated:¹⁴⁹

[I]n conflict situations where there is a direct conflict between national law and the fundamental obligation on parties to a conflict under Common Article 3 of the Geneva Conventions, the obligation is to comply with Common Article 3. The denial of abortion in a situation that is life threatening or causing unbearable suffering to a victim of armed conflict may therefore contravene Common Article 3. International humanitarian law principles may justify performing an abortion rather than extending what amounts to inhumane treatment in the form of an act of cruel treatment or torture. Therefore, an abortion may be offered despite being in breach of national law by Parties to the conflict or humanitarian organizations providing medical care and assistance.

A similar argument was used to criticise the Helms Amendment of 1973 to the Foreign Assistance Act of 1961, which prohibits US government funds from being used by NGOs for the ‘performance of abortions as a method of family planning or to motivate or coerce any person to practice abortions’.¹⁵⁰ In this way, the United States, one of the major donors of humanitarian aid, conditions funding for aid organisations to a ‘no abortion clause’, thus discriminatively limiting access to comprehensive medical care for female rape victims.¹⁵¹ In 2011, the UN Human Rights Council Working Group on the Universal Periodic Review urged the US to ‘remove blanket abortion restrictions on humanitarian aid’ which violated Common Article 3.¹⁵² It should be noted that, on 23 March 2023, the Abortion is Health Care Everywhere Act of 2023 Bill was introduced in Congress; if passed, this will repeal the Helms Amendment.¹⁵³

The European Parliament and the European Commission have also aligned themselves with this position by supporting, on several occasions, the right of women victims of sexual violence to have access to the full range of SRH services, including safe abortions, in humanitarian crises. In fact, IHL ensures this right as part of necessary medical care and supersedes national or local laws in armed conflicts.¹⁵⁴

Finally, the UNSC practice in the framework of the WPS Agenda must be examined, given the relevance that related resolutions could have as a mechanism to strengthen women's rights in war.¹⁵⁵ They fall into the category of the thematic – and, therefore, non-binding – resolutions of the Security Council and are based on the recognition of an explicit link between the protection of women's rights and the maintenance of international peace and security.¹⁵⁶ These resolutions are solidly grounded in international law, calling ‘upon all parties to armed conflict to respect fully international law applicable to the rights and protection of women and girls, especially as civilians’.¹⁵⁷ In this respect, they list (particularly in the preambles) the relevant instruments of IHL (the four GCs and the Additional Protocols thereto), refugee law and women's rights, in particular, the repeatedly mentioned CEDAW Convention. It seems that this set of resolutions ‘recognizes relevant international humanitarian and human rights law as the standard of legality against which to assess the legality of actions taken by the parties to an armed conflict’,¹⁵⁸ contributing to the development and crystallisation of international law. Precisely for this reason, it is interesting to see what place SRH rights – and, in particular, access to safe abortion services – have found within them.

To date, ten resolutions have been adopted, five of which focus specifically on the issue of sexual violence in conflicts.¹⁵⁹ In this regard, it is worth noting that if, on the one hand, they mark the international recognition of sexual harm inflicted on women during conflict, on the other hand, there is a complete lack of consideration for the conditions and inequalities that produce such harm in the first place.¹⁶⁰ Despite a general focus on sexual violence in conflict, the only resolutions that, for different reasons, have anything to do with women's reproductive rights are UNSC Resolutions 2122 (2013) and 2467 (2019).

The former has been hailed as a significant advance in the protection of women in conflict situations as it notes in its preamble ‘the need for access to the full range of sexual and reproductive health services, including regarding pregnancies resulting from rape, without discrimination’.¹⁶¹ In this provision, the influence of the previous Report of the UN Secretary-General on Women and Peace and Security was evident. Indeed, a few months earlier, Ban Ki-moon stressed the necessity to address ‘all physical, mental and sexual and reproductive health consequences of violence against women, including through provision of emergency contraception and safe abortion’.¹⁶²

For the first time, Resolution 2122 (2013) attempts to overcome the paternalistic approach that considers women exclusively as victims of abuse, as cultural objects or as bodies in the context of sexual violence and reproductive rights.¹⁶³ On the contrary, women victims of rape in armed conflict are represented as agents who are actively called upon to decide their own destiny and reproductive choices for themselves. However, it should be highlighted that this issue is mentioned in the preambular section of the resolution and not in the operational paragraphs, and that the resolution recognises access to the services and not the right.¹⁶⁴

The adoption of UNSC Resolution 2467 (2019) was more controversial. The original draft was ambitious and was designed to focus on a ‘survivor-centred approach’ to preventing and responding to sexual violence in conflict. During the negotiation led by Germany, the most controversial issues were the establishment of a mechanism on sexual and reproductive health and on the rights of victims of sexual violence in conflict and, in general, the reference to SRH rights. Indeed, the initial draft noted, with concern, the funding shortfall for services to address conflict-related sexual and gender-based violence, including ‘comprehensive sexual and reproductive health care such as access to emergency contraception, safe termination of pregnancy and HIV prevention and treatment, as well as reintegration support for survivors’.¹⁶⁵ This proposal was opposed, as could be expected, by the United States, China, and Russia. On the other hand, it was supported by France, Belgium, South Africa, the United Kingdom and Germany. Thus, also on this occasion, the traditional divisions on the issue were re-proposed.

Faced with the veto threat from the US, Germany tried to use a compromise formula that referred to the need to guarantee access to non-discriminatory and comprehensive health services, including SRH, for victims of sexual violence. However, because of American pressure, it was not sufficient that the language on sexual and reproductive health be diluted, and the final text ended up making no direct reference to SRH rights.¹⁶⁶ During the explanations of the vote, the intervention of South Africa was significant:¹⁶⁷

On the one hand, the text calls for a survivor-centred approach, while on the other hand it is denying survivors essential sexual and reproductive health services when they need them the most. The Council is therefore telling survivors of sexual violence in conflict that consensus is more important than their needs.

In fact, the Security Council continued to be silent on the crucial issue of SRH rights, without which women's rights remain in jeopardy and the most basic needs of the victims of sexual violence worldwide cannot be met.¹⁶⁸

Eventually, as Sara De Vido pointed out, in this resolution ‘it is not what is missing but rather what was willingly removed from the original draft to raise more than one concern’.¹⁶⁹ Moreover, the author underlined the relevance of the composition of the Security Council at that time. Indeed, the choice regarding the reproductive health of women in situations of conflict has been delegated to a body composed exclusively of men; a further example of how much the arena of international law, despite the efforts made, remains a ‘masculine world’.¹⁷⁰ This resolution, by purposely excluding appropriate and necessary medical treatment for some women, effectively perpetuates language that further re-victimises female victims of conflict-related sexual violence and takes a step back in their protection. As Fionnuala Ní Aoláin recognised, Resolution 2467 (2019) represents ‘a shameful parody of meaningful international response to the reality, harm, and needs of survivors of sexual violence. It parades a set of platitudes by states, absent a commitment to one of the most essential and practical needs of victims’.¹⁷¹

However, the position of other authors – in particular Christine Chinkin and Madeleine Rees – is different.¹⁷² Indeed, they believe that the lack of an explicit reference to SRH services does not lead to an erosion of these rights for rape victims in the framework of the WPS Agenda. They have identified four reasons why Resolution 2467 (2019) would not compromise the right to access the full range of SRH services, including abortion services, without discrimination. The first of these is that the language of Resolution 2122 (2013) remains the agreed language on SRH rights and has not been replaced or removed. Secondly, the reference in the preamble to General Recommendation No 30 was emphasised. Indeed, in this document the CEDAW Committee (as we saw in Section 3.2) recognised the state obligation to guarantee access to SRH services, including safe abortion, in conflict situations. Further reassurance can be found in the Preamble, which reiterates:¹⁷³

the need for survivors of sexual violence to receive non-discriminatory access to services such as medical and psychosocial care to the fullest extent practicable and need to be free from torture and cruel, inhuman or degrading treatment, and that violations of the obligations on the treatment of victims can amount to serious violations of international law.

While it must be recognised that this was not the intention of some of the proponents of the text, non-discriminatory access to medical services for victims of rape necessarily includes – as demonstrated above – access to safe abortion services or emergency contraception. Similarly, the reference to the prohibition of torture or inhuman and degrading treatment seems to echo the jurisprudence of the UN bodies for which, in certain circumstances, denial of abortion can constitute a violation of this obligation.¹⁷⁴

Finally, looking at the operative paragraphs, Paragraph 16 requires the adoption of a survivor-centred approach and that victims of sexual and gender-based violence – including particularly vulnerable groups – receive the care required by their specific needs and without discrimination. Moreover, the reference in Paragraph 18 to the situation of women ‘who choose to become mothers’ after a rape, for the authors, is an implicit acknowledgement that it is a personal choice and that ‘other women choose legitimately not to give birth’.¹⁷⁵

Therefore, it is possible to favour an interpretation of the text of the resolution, which includes access to safe abortion among the standards that states are obliged to guarantee, without discrimination, as specific treatment for victims of sexual violence.¹⁷⁶ However, at the same time, the disagreement during the negotiations and the expressed willingness to remove any reference to reproductive rights from the final text cannot be ignored. It is a further example of how women's rights, especially those relating to sexual and reproductive health, find it difficult to penetrate the language and activities of bodies with an intergovernmental and, often, patriarchal structure (like the UNSC).¹⁷⁷

It will be relevant to see what future state practice will be. The ILC held that state practice can take many forms. It can include ‘conduct in connection with resolutions adopted by an international organization or at an intergovernmental conference’.¹⁷⁸ In this respect, there is one fact that allows us to look to the future with cautious optimism. Behaviour associated with the WPS resolution fits exactly within this categorisation and includes the conclusion of National Action Plans (NAPs).¹⁷⁹ They are an essential vehicle for the implementation of the WPS Agenda, showing how states prioritise the various agenda tasks and providing information on how the WPS activities are governed, funded, and monitored. Of the NAPs adopted so far, as many as 65 directly reference states’ commitment to guarantee access to reproductive services in conflict situations and to promote SRH rights.¹⁸⁰ This is a relevant practice,¹⁸¹ which can be considered widespread and representative: the reference to the SRH of victims of rape in armed conflicts is present in the documents drafted by 65 countries representing different geographical areas of both the global north and south.¹⁸²

6. Final remarks

The gendered hierarchy that continues to permeate contemporary societies not only makes women more vulnerable to the consequences of conflict but also tends to inform the law – mostly IHL – that represents them in a partial and distorted way on the basis of their sexual and reproductive roles.¹⁸³ The male-centric organisation of social institutions and the pervasiveness of stereotypes of women as child bearers are reflected by the denial of abortion, even in the case of rape, in numerous states.¹⁸⁴ The consequences of these political choices can be devastating in conflict situations where women are highly exposed to sexual violence and are more vulnerable, given their traditional subordinate position in societies. If it is true that IHL appears to be largely inadequate in responding to the specific needs of women in conflict, it is necessary to avoid the risk that international law becomes a triumph of form over substance, as argued by Christine Chinkin.¹⁸⁵

On the contrary, it is crucial to harness the symbolic force of international law to reshape how women's lives are understood in the international context.¹⁸⁶ If there is still much to do regarding the understanding of the rights and specific needs of women in conflict situations, it is necessary to try to enhance, also from an interpretative point of view, the existing legislation to allow an improvement in conditions for women. For this reason, this article has proposed a reinterpretation of the existing rules through the incorporation of a gender perspective. If we look at IHL and IHRL through gender lenses, it can be concluded that denying access to abortion for rape victims in armed conflicts constitutes a violation that would not find justification.¹⁸⁷ As has been shown, it is a violation in two respects: (i) the obligation to provide adequate medical care for the wounded and sick in a non-discriminatory way, and (ii) the obligation to treat humanely persons taking no active part in the hostilities.

However, the analysis of UNSC thematic resolutions in the framework of the WPS Agenda has shown that there is still much to be done at the international level. As the NGO Working Group on Women's Peace and Security has warned, because of the current attacks on ‘core principles of international humanitarian and human rights law, including as they apply to sexual and reproductive rights’, the WPS 20th anniversary is not ‘a cause for celebration, but a call to action that addresses the gendered impact of conflict and reaffirms the rights of all women and girls living in conflict-affected communities’.¹⁸⁸