Children born of sexual and gender-based violence in situations of conflict and mass violence have, until recently, been neglected in international criminal law. These children exist in what the Secretary-General on Sexual Violence in Conflict has previously termed an “accountability gap” as the “punishment against or redress by the perpetrator rarely includes reparations for the women who were victimized or the children who were born as a result of rape”.

Such children have, however, featured in recent cases at the International Criminal Court (ICC). For instance, in the case against Jean-Pierre Bemba Gombo, leader of the Congolese Movement of Liberation of the Congo (MLC), convicted in March 2016 of war crimes and crimes against humanity for crimes committed by his troops in the Central African Republic (CAR) between 2002 and 2003, unwanted pregnancies and the birth of children were identified during sentencing as a harm of rape. This case represents the first time the ICC will have the opportunity to provide reparations to victims of rape and a recent Expert Report on reparations suggested that children born of rape should be included within this process.

Children Born of Rape in Bemba

It is unclear how many children were born of rape as a result of Bemba’s MLC crimes. Expert testimony provided during the Trial, however, identified at least four women who suffered unwanted pregnancies as a result of rape, noting that:

One victim did accept the child as being her own, so took on, shouldered that. There was another one who didn’t want to have anything to do with the child she had given birth to, and there was a third one who had an abortion. Actually, she had to do this in hiding, and that meant that there were medical consequences to that abortion. And a fourth, well, we lost track of her. We do not know what the outcome in terms of this pregnancy was.

These children, who are about 13 years old now, are in a precarious situation in terms of their own identity and family relations, as explained by the mother of one of the children during the sentencing hearing:

She doesn’t know who her father is. She doesn’t know where he is. She has no news of him. And I wonder how things will develop. I ask God if I die, what will happen to that child? The three others which I had, I know that their father’s families are there, and if something happened to me, those children could go and live with the family of their father. But when it comes to this child, what will her fate be if anything happens to me?

According to the Expert Report, some mothers to children born of rape have used their own fathers name to hide the child’s origins in an attempt to avoid stigmatisation. Indeed, where the identities of these children are known, it has been reported that they have suffered appalling harms in CAR. For instance, they have been referred to as “Bayamulengues,” mocked and discriminated against. Consequently, they have been denied welfare, education and a normal childhood. Some children have died from neglect while others have died from untreated HIV/AIDS, either as a result of neglect or where the child themselves avoided being tested so as not to upset their mothers.

The Possibility of Reparations

While the application process for reparations in Bemba has concluded, the Expert Report suggests that the Court consider re-opening the filing period for victims of rape and children born out of rape. If such a decision were made, the Court would have to take care not to further stigmatise victims and ensure sensitive procedures are in place.

Allowing rape victims and children born of rape to apply for reparations at this stage would be significant: it would send a clear message that the ICC recognises the legal, cultural, economic and security obstacles faced by such victims in coming forward. Further it could go some way towards closing the “accountability gap” within which children born of rape currently exist.

In thinking about reparations for children born of rape in this case, it is proposed that three key areas be at the forefront:

Fighting stigma: any reparations should include a national stigma strategy with specific programmes to support mothers and children born of rape, as recommended in the UK’s new principles on this subject. Educational programmes, similar to those recommended by the Committee on the Elimination of Discrimination Against Women and the Inter American Commission on Human Rights in relation to sexual and domestic violence, could be rolled out for the wider community in CAR focusing on combatting myths, stereotypes and negative attitudes towards children born of rape.

Education: educational support is required. In Peru, for example, the Reparations Plan provided that children born of rape they should be entitled to economic compensation up to the age of 18 and should be eligible for preferential access to education services. Similar support has been provided to children of the disappeared by the Chilean National Corporation of Reparation Reconciliation.

Healthcare: specialised healthcare programmes should be designed in order to test and treat children born of rape who may have contracted HIV/AIDS. Mental healthcare programmes should also be provided to support children who are aware of the circumstances surrounding their conception and are finding it difficult to cope both emotionally and psychologically.

While the reparative mandate of the ICC is limited in terms of its ability to adequately repair the harms caused by mass atrocity, it is becoming increasingly evident that children have been born out of crimes the ICC is designed to punish and redress. Indeed, in the ongoing case against Dominic Ongwen, who was charged with forced pregnancy, amongst other crimes in March 2016, children born of forced marriages have been identified as victims. Thus, where the ICC can play a role in responding to the needs of these children it is incumbent that it does so. Bemba has the chance to set a positive example in this regard.