Abortion and the Laws of War: Subverting Humanitarianism by Executive Edict

By Susan Yoshihara, Ph.D. | March 8, 2016

From the kidnapping of schoolgirls to the mass shooting of unarmed civilians, violations of humanitarian principles have become the subject of daily news stories.  One of the core standards of humanitarian law—the prohibition against rape—faces attack from two fronts: the militant groups that systematically flout it, and the activists seeking to subvert it to invent a right to abortion.  In a new law review article, Dr. Susan Yoshihara traces this recent strategy to enshrine abortion in humanitarian law, reveals the lack of legal substance behind it, and issues an important call for politicians and policymakers to continue to reject this flawed reasoning, even as pressure continues to build.

Much of the reasoning behind the call for abortion as a right for victims of wartime rape relies on nonbinding opinions of experts on UN treaty monitoring bodies, which have a long history of “finding” a right to abortion in UN treaties that do not mention it and would never have been ratified if they did.  Furthermore, when women raped and impregnated during wartime have been asked about their most pressing needs, they speak of their desire for peace and security, and for medical care and education for themselves and their children, not abortion.

A distortion of the laws of war to include a right to abortion would have far-reaching implications for groups providing humanitarian aid in conflict-affected areas.  Many groups, such as the Red Cross, are faith-based, and would likely have objections to abortion on religious grounds, as would many individual workers employed in secular aid organizations.  Since abortion is illegal and culturally unacceptable in many of the countries receiving humanitarian aid, even the suspicion of providing abortion could put aid workers at greater risk.

Of course, the most vulnerable victims of this attack on humanitarian law are the babies themselves: the “children born of war” who, along with their mothers, already face great challenges without being characterized as “co-aggressors” along with the wartime rapists.  Dr. Yoshihara presents a compelling argument that to erase their humanity in the name of humanitarianism would undermine the fundamental notion that, even in war, some principles remain universal.

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