The Role of the ICC in Protecting the Rights of Children Born of Rape in War

The trial at the International Criminal Court (ICC) of Dominic Ongwen, commander of the Lord’s Resistance Army (LRA), has attracted widespread legal and political debate.  Much of the commentary has focused on the former child soldier’s status as a victim-perpetrator. Missing from mainstream legal discourse is consideration of another status Ongwen holds as a result of his alleged crimes: fatherhood.  Relatedly, and more importantly, also overlooked is a group of victims of his crimes: children born as a result of rape.  Within the LRA “forced marriage” system, thousands of children were born from the rape of girls held in captivity.

Drawing primarily upon the Ongwen case and the crime of forced pregnancy, this post considers the ICC’s role in recognising the rights of children born of rape and repairing harms against them, consistent with their right to reparation under international law.  Stigmatisation within “post-conflict” communities is a key harm suffered by children born of rape, often driven by their perceived association with perpetrator fathers.  The ICC’s capacity to redress or, inadvertently, exacerbate stigma against this group of victims requires attention.

International Criminalization and Stigmatisation

The complex relationship between stigmatisation and the international criminal justice project has come under scrutiny by scholars whose work has opened up avenues for further critical reflection.  My research (see here, under “stigma and children born of war”) builds on this scholarship and, in particular, on Megret’s conception of stigmatisation as a principal, albeit hidden, function of international criminal justice.  Drawing on practice theory, Megret exposes the ways in which stigma is often deliberately assigned to actors (primarily, the defendant) and conduct (the offences) through the institutional practices of the ICC.  In contrast, my interest lies with excavating the unintended consequences of ICC practices which risk stigmatising a hitherto voiceless class of victims, namely, children born of rape. 

In furtherance of the UK’s Principles for Global Action to tackle stigma associated with conflict-related sexual violence, I ask what steps the ICC should take to ensure, first, that its stigmatisation practices ‘do no harm’ but, second, how the Court might contribute towards reducing the stigma suffered by many children born of rape.      

Prosecution of Forced Pregnancy in the Ongwen trial

Ongwen is the first defendant in international criminal law to be prosecuted for forced pregnancy.  Within his 70 charges for war crimes and crimes against humanity, a number relate to the direct and indirect perpetration of sexual and gender-based (SGB) crimes.

Ongwen is charged with personally committing crimes of forced pregnancy against “his” forced “wives” and, for indirectly perpetrating other forced LRA “marriages” (see here).  Alongside Kony and other co-perpetrators, he stands of accused of implementing the notorious LRA forced “marriage” system, in which young girls were abducted from their homes and distributed to LRA members as “wives”.  Within this structure of gender-based discrimination and violence, an unknown but significant  number of children were born of rape.

Caught Between Statutory Invisibility and Stigmatising Framing

Of the SGB crimes which have a “nexus” to children born of rape, forced pregnancy is the most direct.  Codified for the first time in the Rome Statute, it is defined in Article 7(2)(f) as:

the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other violations of international law. (See also note 5 to Article 7(2)(f): “This definition shall not in any way be interpreted as affecting national laws relating to pregnancy”.)

The crime’s actus reus requires a woman to be (i) forcibly made pregnant and (ii) unlawfully confined (i.e. forced to remain pregnant).  There are alternate mens rea requirements and a footnote to the crime.  The latter reflects certain states’ attempts to prevent the broader entrenchment in international law of a right to reproductive self-determination and shield inconsistent national laws (see here).  

On the face of this crime, the rights or existence of any children born of rape are not clearly visible. To the contrary, Carpenter suggests that the offence not only marginalises children as rights-holders, but frames and stigmatises them in law as “children of the enemy”.  I expand on these points below.

Contextualising “forced pregnancy”

The crime of forced pregnancy was not formulated with the rights of children born of rape specifically in mind, but as part of a broader push to internationally criminalise gender-based war harms against women.  Many constituencies negotiating the Rome Statute had the horrors of conflict in the Former Yugoslavia uppermost in their minds.  In reports and ICTY jurisprudence, some evidence emerged that Bosnian Muslim women were raped by Serbian forces in detention camps, with the purported goal of producing children of a “different” ethnicity to their mothers (see here and here).  Article 7(2)(f) was crafted largely to capture this situation, as reflected in its (first) “ethnically-motivated” intent requirement.  However, this gain for group rights alighted scholarly concern that as an unintended consequence, the offence positioned and “othered” children born of rape as harm to their mother and her ethnic group.  In effect, the crime implicitly adopts the patriarchal claim that a woman’s genes/identity are erased through her rape by a man of a different ethnicity, and that any children born belong to their “enemy” father.  This “normative stigma” could be seen as reinforcing the lived, sometimes long-term rejection of children as non-members of their mother’s ethnic group.  Across both ethnic and non-ethnic conflicts, within communities children’s identities have been linked to perpetrator fathers and stigmatised with collective names such as “Chetnik babies” (Bosnia), “children of hate” (Rwanda), “Kony’s children” (Uganda) and “los paraquitos” (Colombia).  These names serve as thin labels for broader human rights risks and harms.

In Ongwen, forced pregnancy is not being prosecuted under the ethnic intent limb. Therefore, the possible transmission of “normative stigma” on this basis is not in issue.  Nonetheless, the Prosecution Pre-trial brief in Ongwen refers to children he fathered as “his” children and an Experts’ report in Bemba (see below) starkly lists children born of rape as a “serious harm”.  This language potentially engages similar discriminatory framing and narrative concerns.  Importantly, it also evidences a potential conflict between the prosecutorial/sentencing and victim-centred goals of articulating and evidencing “harm” to one group of victims (“forced mothers”) while respecting the rights of another (children born of rape).  In order to minimise the risk of doing harm to either group, the Court must be fully consciousness of the rights of all victims engaged by an offence and seek to balance any conflicts.  Not to do so risks violating its obligations under the Rome Statute and International Human Rights Law.

The Obligation Not to Stigmatise children born of rape

The ICC has a clear legal obligation not to stigmatise children born of rape.  Under Article 21(3) of its Statute, the Court must interpret and apply applicable law (including ICC offences) consistently with internationally recognised human rights, and without any adverse distinction founded, inter alia, on ethnic origin, birth or other status.  The overarching non-discrimination obligation extends to all aspects of the Court’s functioning.   It entails respecting victims’ rights by avoiding incompatible, ICC-generated harms at all stages.  Acting consistently with internationally recognised human rights also requires the Court to respect and protect relevant rights through its mandates.  The UN Convention on the Rights of the Child and the Convention on the Elimination of Discrimination Against Women are of particular relevance in the prosecution of “cross-cutting” crimes  which impact on different victim groups, such as forced pregnancy.  For children born of rape, the holistic application of the right to non-discrimination (i.e. the obligation not to stigmatise) and the principle of “best interests of the child” are key.  For children and their mothers, the contribution of gender discriminatory norms towards the commission of SGB crimes and the “double-stigmatisation” both victim groups face in their aftermath must be recognised and redressed. In order to ensure that all ICC institutional actors understand and meet the Court’s obligations when prosecuting SGB crimes and those affecting children, clear, contextually and culturally-relevant guidelines must be in place.  Currently, children born of rape are missing as a victim group in key public ICC policy documents; perhaps suggesting a degree of institutional blindness which needs correcting.

Recognition of the Legal Victimhood of children born of rape

Despite the noted risks of ICC stigma allocation to children born of rape, a significant milestone has been reached in the Ongwen case.  The Prosecution has specifically recognised children born of rape in LRA captivity as a category of victims (see here), consistent with their right to reparation under international law, reflected in the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and its Guidance Note (see here, here).

The Court’s reparations mandate holds potential to contribute towards the reduction of “real-life” stigmatisation of children born of rape, as well as redressing broader harms.  Clearly, before this stage is reached, the extent of Ongwen’s liability (if found guilty) and the class of victims who may benefit would fall to be determined.  Nonetheless, I highlight below some key research findings which underline the nature, scope and longevity of harms suffered by many children born of rape in LRA captivity (see here, here, here and here).

Broadly, the harms causally linked to SGB crimes victimising children born in captivity comprise: (1) harms arising in captivity and; (2) harms arising outside captivity, in communities.  These include physical, psychological, emotional, cultural, material and stigma-related harms.  Unredressed harms multiply and amplify over time.  In captivity, children endured starvation, disease, lack of access to medical care and daily exposure to violence.  In communities, many struggle to access family and community belonging, encountering identity challenges, rejection, discrimination, violence and, relatedly, diminished access to food, education and healthcare.  Stigmatisation of children and their mothers informs and exacerbates their social and economic marginalisation, posing long term challenges to their health, economic and psychosocial well-being.   In addition, some children born in LRA captivity across the Great Lakes region to parents of different nationalities face statelessness; imperilling their present and future.

Transformative Reparations for children born in captivity

In determining what transformative reparations may mean for children born in LRA captivity, the fact that their mothers are often their primary carers is relevant.  Children experience distinct harms and are in urgent need of psychosocial support, access to education, health, land and future livelihoods.  However, equipping their mothers to better manage physically, economically and emotionally the demands of “forced motherhood” and the ongoing effects of SGB crimes, is likely to enhance the life chances of their children and ease complexities in the mother/child relationship.  Livelihood projects in which children born of rape are co-partnered with other vulnerable children and “give back” to communities may also improve their economic security, while countering harmful stereotypes against them. 

Despite their potential in redressing stigma and broader harms, reparations also risk creating perceived victim hierarchies which may add to the stigmatisation of children born of rape.   To mitigate this risk, the ICC should work with trusted local leaders to sensitise communities before implementation.  While recognizing practical and financial limits to the ICC’s, reparatory function, the ICC Trust Fund for Victims should be used in parallel, to benefit the broader community, all of whom suffered from the war.

Broader Marginalisation in Transitional Justice Processes

Following a recommendation in an Experts’ report to include children born of rape in the reparations process, the case of Bemba may leapfrog Ongwen in being the first to award reparations to children born of rape.  While it is unclear why they were not initially included, this omission is symptomatic of the broader marginalisation of children born of rape in transitional justice mechanisms. For example, no children born of rape during the Colombian conflict have yet received reparations under the Victims and Land Restitution Law 1448.  My research indicates that various factors are inhibiting children’s practical realisation of their legal rights.  In this context, they include: practical, ethical and cultural barriers to being seen and identified as victims; fear of perpetrator retaliation; stigma and  mothers’ “protective silences” around their birth origins.

Globally, there is a pressing need to ensure that as a matter of law and practice, the right to reparation of children born of rape can be safely and ethically realised.  The Ongwen and Bemba cases (including any lessons learned) may be catalysts for “positive complementarity” with national courts/mechanisms and greater global consciousness of this victim group.

Conclusion

 Despite the ICC’s potential to protect and enforce the rights of children born of rape, a clear tension can be observed in its “double-edged” practices of stigmatization.  The Court must also seek to manage the risk of being instrumentalised as a legitimator and/or distraction from states’ failure to redress violations for which they bear primary responsibility. In Uganda, survivors and their children still await state reparations under a national transitional justice policy which remains politically blocked.  This includes children born of rape as a result of violations by Ugandan state and other non-state groups.  Finally, inattention and incidental discrimination of children born of rape is not unique to international law.  It is part of a broader, global blindness to their existence and plight.  Beyond the limited jurisdiction and mandate of the ICC, urgent, broader political and research efforts must continue to address the unique vulnerabilities and needs of this population.

This blog is informed by research she conducted at LSE, including fieldwork. It has been written in a purely personal capacity and does not reflect the views of HMG.