The Legal Aspects of Codifying and Planning Sexual and Reproductive Rights and Health Access in Post-Conflict Situations

As the previous section outlines, under international human rights laws and existing conventions, states have a legal obligation to provide reproductive rights and access to reproductive health services to their citizens. Recall the CRR’s “Human Rights Key to Sexual and Reproductive Rights” that was compiled using international human rights laws and treaties. According to Vasquez and Oja (2023), “although an individual’s reproductive autonomy and reproductive and sexual health are protected by” the international human rights framework, and “specifically” those pertaining to “sexual and reproductive rights,” violations of rights related to “sexual and reproductive health and autonomy” are largely neglected in “post-conflict” situations. [18] Examples of common violations include a lack of “access to contraception and abortions, obstetric care,” or “sexual education,” as well as “forced contraception, forced termination of pregnancy,” or “forced sterilizations.” [19] Vasquez and Oja (2023) note that these violations often go unrecognized even when post-conflict “transitional justice mechanisms” are “activated,” such as “tribunals.” [20]   

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In order to fully assess the process of codifying reproductive health access in post-conflict situations, it is critical to understand the legal systems operating in these environments.

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In post-conflict situations, the legal systems are often very complex and dynamic, especially when “more than one legal system operates within a state’s territorial boundaries.” [21] Situations in which “two or more legal systems coexist in the same social field” are referred to as legal pluralism. In situations of legal pluralism, state and non-state legal systems typically operate without “standardized relations” and often reflect “the state’s historical and political context.” [22] Although it may seem trite to explicate, Campbell and Swenson (2016) critically note that as the number of “legal systems operat[ing] within a state’s territorial boundaries” increases, so does the complexity of the overall legal environment; furthermore, they note that “the degree of complexity increases” even more “when non-state systems” maintain “substantial independence from the state.” [23]

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Given that one key aspect of legal pluralism is that non-state justice systems operate with high degrees of independence and authority from state systems; Campbell and Swenson (2016) argue that this factor can lead to substantial “implications for human rights” in post-conflict settings. [24] Therefore, any attempts to codify SRHR, let alone gender equity, in post-conflict settings require a comprehensive understanding of the “nature and relationship between state and non-state justice” systems. [25]

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Due to the destabilizing effects of conflict, in most “post-conflict settings,” the capacity of state justice sector “can be severely limited,” to the extent that the public views “state law” as unfair and questions the legitimacy of “the state system.” [26] In these situations, research indicates that non-state justice systems experience higher levels of “popular legitimacy,” and therefore “effective authority.” [27] Consequently, “a majority of disputes” are delegated to “non-state justice systems,” like the “Pashtunwali in Afghanistan,” which often function with “substantial autonomy and authority.” [28] As of 2016, these “non-state justice systems” settled approximately 80% to 90% “of disputed in developing countries.” [29] However, non-state justice systems, such as those emanating from “tribal dispute resolution mechanisms,” frequently receive criticism for upholding “discriminatory gender laws and norms.” [30] Although legal pluralism poses many challenges to the codification of SRHR in post-conflict settings, such as the prominent discriminatory nature of many non-state justice systems, Campbell and Swenson (2016)  note that efforts to eliminate legal pluralism through the abolition on non-state systems may in themselves constitute “a violation of human rights,” under international law; they explain that under international law “all communities” have the right “to culture and in the case of indigenous populations,” “to determine their own” legal and judiciary systems, including legal pluralism. [31] Therefore, post-conflict settings in which non-state systems are the dominant justice system reveals “fundamental tensions between promoting universal gender equality” and “maintain[ing] cultural diversity.” [32]