Symposium on Reproductive Violence in International Law: Legal Recognition of Children Born of Conflict-Related Sexual Violence in International Criminal Law

[Judy Mionki is an International Criminal and Human Rights Lawyer. She has been part of defence teams at the International Criminal Court in the Kenya and the DRC situations. The views expressed in this posts are the author’s own.

This post summarises an upcoming journal article (forthcoming, Journal of International Criminal Justice, 2024).]

This post forms part of the Opinio Juris Symposium on Reproductive Violence in International Law, in which diverse authors reflect on how the International Criminal Court and other jurisdictions have responded to violations of reproductive health and reproductive autonomy. The symposium complements a one-day conference to be held on 11 June 2024,  in which legal practitioners, scholars, activists, and survivors will meet in The Hague and online to share knowledge and strategies for addressing reproductive violence in international criminal law. Interested readers can register to attend the conference online without cost.

Conflict-related sexual violence (CRSV) is being increasingly investigated and prosecuted in international courts and tribunals. However, children born of CRSV have remained largely invisible in these processes. In cases where they are referred to, (for instance at the International Criminal Tribunal for the former Yugoslavia (ICTY) (para. 1011), the Special Court of Sierra Leone (para. 1080), and the Extraordinary Chambers in the Courts of Cambodia), they are viewed as evidence of atrocities or as a ‘collateral’ consequence of reproductive violence.

This is the same approach followed by the International Criminal Court (ICC). A recent example is in the Ongwen case – though the (then) ICC Prosecutor named children born of CRSV ‘a whole category of other victims’, the charging focused solely on the mothers. Consequently, very little surfaced during the trial of their specific victimhood.

This post highlights some possibilities to make the specific harms experienced by children born of CRSV more visible in future charging practices at the ICC.

A Shift Towards Legal Recognition and Reparations

March 8, 2021 marked a milestone with the first-ever recognition of children born of CRSV as direct victims under international criminal law. The ICC, at the reparations phase in Ntaganda, held that ‘children born out of rape and sexual slavery may qualify as direct victims, as the harm they suffered is a direct result of the commission of the crimes of rape and sexual slavery’ (para. 122). 

The Ntaganda finding opens up avenues for children born of CRSV to qualify as direct victims for the purposes of reparations despite no legal charges on this issue. This outcome was contingent on (i) specific charges relating to CRSV against civilians and child soldiers and (ii) evidence of births included in the charging document and in evidence submitted at trial. 

In Ongwen, the children born of forced marriage, forced pregnancy, rape, and sexual slavery within the Lord’s Resistance Army (LRA), were mainly discussed in relation to the crimes perpetrated against their mothers. However, expert testimony at trial detailed some of the harms they continue to suffer, particularly in relation to stigmatisation. The Trial Chamber, following the same reasoning as in Ntaganda, thus held that ‘children born out of the crimes of forced marriage, forced pregnancy, rape, and sexual slavery for which Mr Ongwen was convicted… qualify as direct victims, as the harm they suffered was a direct result of the commission of these crimes’ (para. 125). 

Scholars have also suggested charging crimes such as ‘forced impregnation’ as a crime against humanity of ‘other inhumane acts’ if it can be proven that the perpetrator intended impregnation, ‘great suffering, or serious injury to body or to mental or physical health’ or that it was a ‘reasonably foreseeable’ consequence. As a war crime, it can be charged as ‘outrages to personal dignity’ or ‘violence to life’. 

For charges relating to genocide, the prosecutor in the al-Bashir case has linked pregnancies resulting from CRSV to genocidal intent. The so-called ‘janjaweed babies’ were discussed in the prosecution’s application for an arrest warrant but were not mentioned in the ensuing arrest warrants. The prosecution must resurface this narrative going forward.

Towards Accountability?

Legal recognition has thus far been for reparations purposes, therefore, a question persists. Is there a crime under the Rome Statute for which the ICC can hold an individual accountable for placing children born of CRSV into a situation where they will experience physical and psychological harms? 

The prosecution in the Kony case has very recently identified one crime, enslavement, noting in its charging document that children ‘born to enslaved women and girls’ are ‘enslaved themselves’ (para. 92). This represents a major shift in prosecutorial strategy with respect to children born of CRSV in that it eschews the conventional approach of solely charging conduct against the mother and surfaces a crime under ICC jurisdiction perpetrated directly against the child. 

However, the prosecution does not capture the full range of crimes perpetrated against these children. Here, I identify a continuing pattern of criminal conduct perpetrated against these children from birth until their release.  

Enslavement 

In Uganda, approximately 10,000 abducted girls gave birth to two or more children each while in captivity within the LRA. As these children were born during confinement, the crime of enslavement, a crime against humanity pursuant to article 7(1)(c), is present from birth. This is an exception to the general pattern whereby victims are reduced to enslavement through slave-trading in its various forms. These children did not lose their liberty, rather, they were born without liberty.

The essence of the crime of enslavement is in the exercise of powers attaching to the right of ownership. In Ntaganda, the Pre-Trial Chamber drew on ICTY jurisprudence, noting that ownership can take varied forms including ‘the detention or captivity in which the victim was held and its duration, the limitations to the victim’s free movement, measures taken to prevent or deter escape, the use of force, threat of force or coercion, and the personal circumstances of the victim, including his/her vulnerability’ (footnote 209). 

In Ongwen, the testimony of two defence witnesses identified as Joseph Kony’s children, was largely positive of life within the LRA particularly in comparison to the stigmatisation and marginalisation encountered following release (see here, here and here). The case, however, exposed severe limitations of free movement within the LRA. Anyone who attempted to escape would be killed (para. 132), Ongwen’s wives were under heavy guard (para. 206) and the children fathered by Ongwen were found to be in the same coercive environment as their mothers (para. 123). Similarly in Kony, the Prosecution asserts that many children were beaten or killed for attempting escape and children born to enslaved women were forced to remain in the LRA (para 92).

The prosecution in Ongwen, however, missed an opportunity to present their own witnesses who could testify of their experiences as children born of CRSV within the LRA. The revised ICC Policy on Children has acknowledged that ‘international criminal justice mechanisms, including the International Criminal Court, have not listened enough to [childrens’] voices or their experiences’. This is a course that should be corrected in Kony and beyond. 

Conscription and Use of Children

One of the LRA’s aims of its forced marriage system was to ‘replenish the group’s forces’. The Rome Statute criminalises the conscription, enlistment, and use of children to participate actively in hostilities (Article 8(2)(b)(xxvi) and Article 8(2)(e)(vii)). This crime has already been charged at the ICC and therefore received significant attention both in scholarship and litigation, nonetheless, it should be viewed through the lens of children born solely to serve as child soldiers. They have been termed the ‘neglected constituency’.

While some of these children might feel a level of allegiance to the armed group, the underlying element of compulsion is illustrated by ‘threat of force or psychological pressure amounting to coercion’ (para. 278). As noted in Ongwen, the children were kept in the same coercive environments as their mothers and the general environment was also found to be filled with threats of death should escape be attempted and the execution of re-captured escapees.

Torture

Children born of CRSV and confined within armed groups begin life in ‘extreme deprivation and violence’. They experience psychological harm in early childhood, including witnessing the beatings of their mothers, and other severe forms of violence perpetrated against others.

The ICTY recognized torture in various forms including beatings, rape, burying the bodies of neighbours and friends (para. 76), and mental suffering caused by watching the severe mistreatment of a relative (para. 149). The revised ICC Policy on Children also specifically notes that ‘[w]here children are forced to witness violence against others, they may be also considered direct victims of the crime’. In addition, physical torture has been documented as part of the child’s training following conscription, from forced labour to severe punishments.

Subjecting these children to torture can be charged as a crime against humanity pursuant to article 7(1)(f) and a war crime pursuant to article 8(2)(c)(i).

Sexual Violence 

Within the LRA, ting tings were younger girls serving in the household until they reached puberty and could become ‘wives’ (para. 217) and with the aforementioned LRA aim to ‘replenish the forces’, the issue of sexual violence (forced marriage, forced pregnancy, rape, and sexual slavery) as perpetrated directly against children born of CRSV, must be prosecuted. 

As these children are already within the LRA, the Prosecutor may consider charging sexual violence in two ways. At the Special Court for Sierra Leone in Taylor, the charges were separated into those relating to conscripting, enlisting or using child soldiers, and separate charges on sexual violence. This approach has been considered deliberate and successful. 

In Ntaganda, the prosecutor specifically charged the rape and sexual slavery of child soldiers as a war crime, an issue that was litigated at length. The Appeals Chamber in Ntaganda held that while protection was generally accorded to ‘civilians and persons hors de combat in the power of a party to the conflict’ as regulated by Common Article 3 of the Geneva Conventions, it did not imply a limit to the types of victims to be accorded protection in relation to sexual crimes. According to the Appeals Chamber, the drafters’ aim was to provide certainty that sexual violence amounts to illegal conduct irrespective of the person’s status under International Humanitarian Law.

In future deliberations of intra-party sexual violence, one crucial element should be given due consideration; prior unlawful and continuing conduct. Erroneously, ICC judges have previously delineated the occurrence of sexual violence from direct participation in hostilities (para. 79). This firm delineation eclipses continuing crimes such as enslavement, conscription and sexual slavery. 

Persecution

The Rome Statute defines persecution as the ‘intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity’. The group has to be identifiable, and its persecution must be based on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognized as impermissible under international law.

Within armed groups, children are identifiable by age and gender, consequently informing their assigned roles (for example ting tings within the LRA). Further out to society, children born of CRSV are identifiable, by names such as ‘children of hate’ in Rwanda, ‘children of shame’ in Kosovo, and ‘Kony’ or ‘rebel children’ in Uganda. The ICC prosecutor and the Appeals Chamber have identified these children as a separate and unique type of victim. There exists an identifiable element to their beginning and continued persecution.

In Kony, the prosecution specifically charges persecution on the grounds of gender and age. It points to hundreds of children abducted and integrated into the LRA and subjected to various crimes under the Statute (Count 23). This approach should be replicated to capture the specific wrongdoings against children born of CRSV.

It must be noted that persecution continues following release or escape. Children born of CRSV face various risks including statelessness, stigmatisation and discrimination. Concerns have also been raised with respect to children born in LRA captivity in neighbouring countries who have not been registered or provided with birth certificates. Lack of identifying information could hinder participation in the ICC judicial process as victims or witnesses and impede access to ICC-specific reparations.

Conclusion

The revised ICC Policy on Children aims to reflect childrens’ experiences in the cases before the court. To ‘prioritise crimes against and affecting children’ and ‘increase children’s access to justice’, to bring them ‘one step closer to the effective remedies, reparations, and accountability they deserve’. This shift in prosecutorial strategy should also encompass the neglected constituency, the children born of CRSV.  It is only in pursuing accountability for this group can we (to borrow the words of Valerie Oosterveld), authoritatively transform a legally unacknowledged experience into an acknowledged wrong requiring legal redress.