The Scope of Transgenerational Harm: Making a Case for the ‘Unborn Child’

by | Jan 27, 2025

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About Smriti R. Saroja and Snehaa Rajesh

Smriti R. Saroja is a practicing lawyer handling consumer disputes, with a specialization in healthcare laws and intellectual property rights. An alumna of the Jessup Moot Court Competition, she served as the Student Director of the International Law Students Association (2023-2024). Her research interests include international criminal law and environmental law.
| Snehaa Rajesh is a final year BA.LLB.(Hons) student in the School of Excellence in Law, Chennai. She is a member of the Indian Society for Universal Dialogue. Her research interests include intellectual property rights, technology, media, telecommunications law, and international law.

The International Criminal Court (ICC), while deciding the case of Prosecutor v. Dominic Ongwen, considered Mr. Ongwen’s past – as a child soldier abducted by the Lord’s Resistance Army who then went on to perpetrate atrocities as its commander – to be a mitigating circumstance in his sentencing. The Chamber implicitly recognised that transgenerational harm cannot be divorced from international criminal law and areas historically suffering from conflict and mass atrocities. Inspired by the reasoning of this decision, the author delves into the ICC’s jurisprudence on the relationship between victims of transgenerational harm and the need to provide adequate reparations to victims of such harm.

TRANSGENERATIONAL TRAUMA

Can the trauma of violence echo across generations, leaving scars on those not yet born? Victims of mass atrocities commonly suffer from a multitude of harms which often tend to be deeply connected. Psychological harms are often a challenge to quantify monetarily and in terms of impact. Yet, they often have the most long-lasting effects. Studies indicate that the trauma experienced by survivors may be genetically transmitted to their offspring, manifesting in a myriad of behavioural and psychological patterns. The ICC has recognised transgenerational harm, but previously ruled against awarding reparations for victims due to questions of causality. However, in  Prosecutor v. Bosco Ntaganda (2021), the ICC opened the door to awarding reparations for transgenerational harm. What remains relatively unexplored in this context, however, is whether the contours of this jurisprudential development will extend to awarding reparations to an ‘unborn child’ for enduring transgenerational impact.

PRESENT STATUS OF TRANSGENERATIONAL HARM

Scientific experts agree on the two leading schools on transgenerational trauma – social transmission theory and the epigenetic transmission theory. Both theories converge (Para 10) on the fact that trauma is passed through generations. These children often face severe stigma, enduring blame, scorn, and being labelled as ‘war babies’.

Mr. Ongwen’s role in transgenerational harm

Mr. Ongwen was convicted [3116] of multiple sexual and gender-based crimes, inter alia,  rape, sexual slavery, forced pregnancy and forced marriage. His actions of forcibly impregnating several women caused genital anomalies for the victims, presenting [288]  a pattern of sexual violence. It is a warranted claim that much of these crimes are causative agents of transgenerational harm. Notably, the ICC recognised and awarded [789]-[790] reparations to such victims of transgenerational harm recognizing [168]  that children born amid reproductive cruelty inherit their parents’ trauma, perpetuating cycles of dysfunction even without experiencing direct violence.

EVIDENTIARY STANDARDS EMPLOYED BY THE ICC

While assessing the liability of the perpetrator in reparations proceedings, the Court usually adopts [22]  a flexible evidentiary threshold, to accommodate victims facing barriers in proving harm caused by crimes. On the one hand, the balance of probabilities test has been a consistent jurisprudence of the ICC in several reparations proceedings (Lubanga Reparations Order [65]  and the Ntaganda Reparations Order [143]). It requires the Applicant to adopt a gender-inclusive and sensitive approach [60]. Accordingly, victims are not put to a strict standard of proof (Rule 63 (4)). On the other hand, the but-for relationship standard posits a requirement that the crimes for which the person was convicted was the proximate cause of the harm for which reparations are sought, to justify a finding of liability (Katanga judgement [15]).

Building upon these standards, the ICC has broadened its reparations framework to address transgenerational harm through a four-pronged test [206]: proving direct victimhood to Mr. Ongwen’s crimes, establishing the child’s personal suffering, demonstrating parental-child trauma causation, and verifying the parent-child relationship. This framework integrates the ‘balance of probabilities’ test to assess [509]  the victims’ eligibility and the ‘but/for’ test to establish [419]  causation between victimhood and crime.

CONCLUSION: WAY FORWARD

The ICC has seamlessly included victims of transgenerational harm within the systemic fabric of international criminal law. By fostering dialogue, restorative justice addresses harm through a reparative process. The ICC’s reparations system has enabled flexibility in defining victims and its emphasis on collective reparations. This progressive approach to transgenerational harm and reparations demonstrates a shift toward inclusivity, addressing the consequences of mass atrocities on successive generations.

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