By Dawn Clancy / PassBlue
For more than a decade, Mohammad Ajjour helped Palestinian couples in Gaza facing infertility to achieve their dreams of parenthood. But in a single missile attack launched by an Israeli tank in December 2023, the Al Basma IVF center was destroyed, along with the potential future use of thousands of embryos, specimens of sperm and unfertilized eggs stored at the largest fertility clinic in the Palestinian enclave.
After hearing the news, Ajjour, an embryologist and Al Basma’s lab director, said he immediately thought of his many patients. “I felt sorry to all of them and their stories, [and] their dreams,” he said in a phone interview with PassBlue from Cairo. “I’m thinking, like, what we will do now for those people? I said to myself, I don’t know.”
“I will get back to Gaza,” Ajjour added, defiantly, “and I will rebuild our clinic.”
In-vitro fertilization (IVF) — a treatment for couples struggling to conceive — is a multistep process in which a woman’s eggs are collected and fertilized by sperm in a lab. Called embryos, these fertilized eggs are kept frozen in liquid nitrogen tanks and transferred to a woman’s uterus when optimal. Al Basma was founded in 1997, in Gaza City, in the north of the enclave. The attack on the clinic caused the lids on the liquid nitrogen tanks to burst off, destroying the specimens inside.
The attack on the clinic didn’t make Western headlines until four months later, in April, because it seemed to be a footnote to the major attacks by Israel in its war against Hamas in Gaza. But legal minds are now puzzling through whether an attack on a fertility clinic, such as Al Basma, could be considered an act of genocide through the developing concept — within the universe of international criminal law — of what is being called “reproductive violence.” Experts are also saying that such a hit reflects how the war is disproportionately hurting women.
As Susanne Mikhail, regional director of UN Women in the Arab States, said in a media briefing in Geneva on April 16, “The war in Gaza is no doubt a war on women.”
Women, she added, “are paying a heavy price for a war not of their making.”
As conflicts across the world continue to erupt, clarity on the nature of crimes committed during war could increase the likelihood that justice for victims and holding their perpetrators accountable will be carried out.
Yet details on the Al Basma clinic attack remain limited. In a statement to ABC News, responding to the attack, the Israel Defense Forces (IDF) said, “The IDF does not deliberately target civilian infrastructure, including IVF clinics. The IDF is not aware of the specific strike.”
Legal scrutiny of this possible act of genocide by Israel in Gaza occurs as Israeli Prime Minister Benjamin Netanyahu, despite stern warnings from the United Nations, the European Union and the United States, is starting to invade Rafah, the southernmost city in Gaza, in earnest. More than a million Palestinians are trapped in the dense area of the enclave with no safe place to go.
“I am disturbed and distressed by the renewed military activity in Rafah by the Israeli Defence Forces,” UN Secretary-General António Guterres told reporters on Tuesday, May 7. “Make no mistake — a full-scale assault on Rafah would be a human catastrophe.”
Guterres is very unlikely to expound on whether the attack on the Gaza fertility clinic is genocide, and the UN has been saying repeatedly that deciding on whether an action is genocide is up to an international court of law. Yet the conversation on “reproductive violence” is heating up amid the many other accusations of war crimes being lobbed by human-rights specialists and legal experts against Israel in its attacks in Gaza.
Relatedly on May 6, in a press release, UN Women further warned that an Israeli military incursion in southern Gaza would bring “increased death and despair for Rafah’s 700,000 women and girls.”
“What’s becoming more clear is that reproductive violence is linked to, but it’s different from sexual violence,” Dr. Aldo Zammit Borda, associate professor at the City University of London, said in a call on May 7. “Whereas sexual violence looks to infringe on the sexual autonomy of a person, reproductive violence breaches reproductive autonomy . . . it contains different harms.” But in some cases, the two can “happen in tandem.”
“Unfortunately, the human capacity for cruelty is, in essence, limitless,” Dr. Borda added. In wars and conflict, there will “continue to be different crimes in the future.”
He also noted that if the “evidence is there” — that the Israeli attack on the clinic was intentional — and it was examined through the lens of reproductive violence as part of a genocidal campaign, the assault could be considered a “measure intended to prevent births within the group,” as defined in the Genocide Convention. The treaty, adopted by the UN General Assembly in 1948, defines genocide as including “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”
Those acts, listed under Article 2 of the Convention, include killing members of a group, causing serious physical or mental harm, deliberately inflicting on the group conditions of life that bring about physical destruction, the forced transfer of children and imposing measures intended to prevent births within the group. To prove a case for genocide, intent must be shown, a high hurdle that makes it one of the most difficult international crimes to prosecute.
Dr. Borda added that the attack on the fertility clinic in Gaza could also be framed as a war crime as direct attacks on civilian objects in conflict are prohibited. And it could potentially be considered a crime against humanity if hitting the clinic was part of a “widespread and systematic attack” causing “severe suffering or serious injury.”
Using the conflicts in Bosnia in the 1990s as an example, Akila Radhakrishnan, the strategic adviser for gender justice at the Atlantic Council’s Strategic Litigation Project, says that the legal understanding of reproductive crimes is “progressing.”
In 1998, “forced pregnancy [an example of reproductive violence] was first criminalized in the Rome Statute — the treaty that established the International Criminal Court [ICC] — in the wake of the experience in Bosnia, particularly the so-called rape camps,” Radhakrishnan said.
“However, it took nearly 25 years for the crimes to first be charged — which was done in the case of Dominic Ongwen, a senior leader in the Lord’s Resistance Army in Uganda — and successfully prosecuted,” she added. Radhakrishnan was one of the legal experts who advised the court on how to look at and understand the different elements of the crime of forced pregnancy in the Ongwen case.
The case is important, she noted, because the ICC “affirmed that what the crime sought to protect was personal, sexual and reproductive autonomy, setting the stage for deepening our understanding of other potential reproductive crimes,” including the missile that hit Al Basma and destroyed, according to a Reuters report, “more than 4,000 embryos plus 1,000 more specimens of sperm and unfertilized eggs.”
The ICC’s revised gender-based-crime policy recognizes that reproductive violence, although it is not legally binding, is separate from other conflict-related crimes.
Reem Alsalem, the UN’s special rapporteur on violence against women and girls, said of the Al Basma assault: “It’s another example of this reproductive violence that is being very deliberately waged against Palestinian women. It probably is, in my view, a genocidal act as outlined by Article 2 of the Convention on the Prevention of Genocide, which is preventing births within a group.”
In January 2024, South Africa filed a lawsuit with the International Court of Justice (ICJ), the UN’s highest court, alleging that Israel is intentionally committing genocide in Gaza. Quoting Alsalem, the filing notes acts of reproductive violence “inflicted by Israel on Palestinian women, newborn babies, infants and children” as potentially qualifying acts of genocide.
Alsalem and seven other human rights experts, including Francesca Albanese, the UN’s special rapporteur for the occupied Palestinian territory, recently said in a statement that in addition to noting the destruction of Al Basma by Israeli forces, they “condemned the continued and systematic onslaught of violence committed against Palestinians in Gaza.”
They painted a grim picture of the disproportionate level of suffering experienced by girls and especially pregnant women in Gaza, saying: “The treatment of pregnant and lactating women continues to be appalling, with the direct bombardment of hospitals and deliberate denial of access to health care facilities by Israeli snipers, combined with the lack of beds and medical resources placing an estimated 50,000 pregnant Palestinian women and 20,000 new-born babies at unimaginable risk.”
Over 183 women a day are giving birth without pain relief, they wrote in the statement, “while hundreds of babies have died because of a lack of electricity to power incubators.”
“The dreadful conditions have resulted in increases in miscarriages by up to 300 percent,” they added, saying “95 per cent of pregnant and breastfeeding women face severe food poverty.”
The UN Office for the Coordination of Humanitarian Affairs, or OCHA, is reporting that more than 35,000 Palestinians have been killed in Gaza, 78,000 have suffered injuries and 1.7 million Gazans, or 75 percent of the population, has been internally displaced. That number is rapidly rising as Israel’s ground invasion begins in Rafah.
“When people think of genocide, they have a very specific notion of what constitutes genocide in their mind,” Payal Shah, director of the New York-based Program on Sexual Violence in Conflict Zones for Physicians for Human Rights, said.
“But I think there’s also a deeper set of questions that need to be explored if we’re taking a gender lens to genocide to understand how violence especially impacts women and girls,” she added.
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