Author: Gyaneshwari Pande
IV Year | Yashwantrao Chavan Law College, Pune
War crimes have long been the subject of humanitarian law, which accords recognition to the victims of conflict-related sexual violence (CRSV). Armed conflicts now frequently target civilians also. In addition, the International Criminal Law, International Humanitarian Law, and International Human Rights Law consider conflict-related sexual violence as a punishable crime. CRSV is no longer just an inevitable outcome of the war.  Children born out of war, compared to other armed conflict victims, are ignored, forgotten, and neglected.
Recognition of Children Born of Wartime Rape:
Brčko District, one of the three administrative units of Bosnia-Herzegovina (hereafter, BiH), took the first significant step to grant children born as a result of wartime rape the legal status in BiH as “Civilian Victims of War” on July 14, 2022, when it passed a new law on civilian victims of war. Most countries do not treat children born of wartime rape as typical children in comparison to other rape victims. At the very least, some nations have resorted to giving them the status of civilians in that nation.
UN took so long to recognize this group of children under CRSV as indirect victims of war as. However, in order to lessen the outrage of these victims, they need to be recognised as not indirect but rather a particular category of victims of war who face denigration from both perspectives (ethnicity). They are Special Victims of War, the direct victims of war.
Children born as a result of wartime rape are entitled to financial compensation according to the International Criminal Court (ICC). As a result of BiH’s legal recognition of these youngsters as civilians, which advanced the human rights agenda, they were granted civilian rights and received this commendation from such a higher institution.
Psychosocial Impact of War on Children Born of War:
Children associated with or recruited by armed militant organizations go uncared for while treating the direct casualties of war. These children are also more likely to suffer the detrimental effects of prejudice all their lives. Their exclusion (motherlessness and fatherlessness) leaves them susceptible to the rest of the world. Children get their birth, legality, and citizenship rights through ancestry or nationality. These rights are susceptible to significant administrative challenges in many states.
Such children are additionally vulnerable because they have experienced stigmatization, marginalization, and isolation and have come to represent the trauma of the nation as a whole. As a result, society often neglects their needs.
My blood or bad blood:
Children without patrilineal ancestry are kept out of the mainstream and stigmatized.
Unequal members of society:
Children born of wartime sexual assaults during conflict are yet to be recognized and appreciated in their own right. Their unique and complex needs are still unmet and comprehensively undiagnosed.
The biologies of these children differ in two distinct theories. Children born of sexual violence, wartime rape, or sexual exploitation go through stigma, infanticide, and discrimination. These situations frequently go unrecognized in international agendas and legislation.
Children of the enemy –
Because of the trauma associated with the heinous crimes listed in ICTY, survivors who are already dealing with the prevailing stigma of rape in society experience depression and are forced to become pregnant against their will, giving birth to children of the enemy who are then mistreated, exploited, stigmatized, excluded, abandoned, trafficked, stateless, confused over their identities and denied access to family, land, inheritance and human rights. The Peruvian Reparations Plan granted the children financial assistance for up to 18 years and priority access to educational resources. It also identified them as a separate group of beneficiaries.
Efficacy of Post-War Reparations:
In the case of children who are born as war babies, how effective are these post-war reparations, reconstructions, or reconciliation programs in reality? It is perceptible that there is a lack of appropriate international public policy and a failure in the legal system to address the specific needs and vulnerabilities that these children suffer.
Campaigns that aim to draw the attention of relevant expert committees established under various human rights treaties, such as the United Nations, and the African Union, including, the Office of the Special Representative of the United Nations Secretary-General on Sexual Violence in Conflict, Committee Monitoring the Implementation of the UN Convention on the Rights of a Child, Office of the UN Commissioner for Human Rights and the African Union Committee of Experts on the Rights and Welfare of the Child, are crucial.
The State’s policies on lived experiences and complex realities of victimhood are controversial, as is the international recognition of children born of wartime rape. International Organisations and institutions establish imperative principles and guidelines for the right to an effective remedy, which is protected by international human rights law and humanitarian law in order to protect this vulnerable group of children against the violations like social stigma, discrimination, and identity issues.
However, in cases where the State’s actions or inactions constitute fviolations of its obligations under international human rights law or international humanitarian law, the state shall, at its discretion, develop programs for reparations and assistance to victims. For example, Uganda launched a unique scheme for registering special birth certificates for infants born of rape during the Lord’s Resistance Army.
According to Article 7(2)(f) RS, Sexual and Gender-Based crimes have a clear connection to children born of wartime rape and forced pregnancies, which are addressed in some international laws and prosecutions, such as the ICC’s reparations for the Bemba rape victims. However, the absence of special jurisprudence and the failure of legislation for children born of specific war crimes led to the unification of such a vulnerable minority and their fight for their rights through the recognized idea in question.
Victims from Uganda, Peru, Rwanda, Iraq, Libya, Congo, Kosovo, Yugoslavia, and BiH have fought and founded numerous NGOs and organizations to raise their voices. Organizations like Trial International and the Forgotten Children of War Association have made a significant contribution to the adoption of the new law granting Bosnian victims civilian rights. These kids will have the chance to exercise their fundamental human rights and integrate into society, says Ajna Jusic. ́
In addition, The UN (SRSG) recognizes children born of rape as victims-survivors of CRSV. Also, the ICC applauded BiH’s stance in designating infants born as a result of sexual assault during the war as a separate category of victims and hailed the action as significant. In the course of the investigations and prosecutions, these kids will, hopefully, receive special consideration.
 Trial International, Children born as a result of Wartime Rape get their first legal recognition in Bosnia and Herzegovina. (09 August 2022), https://trialinternational.org/latest-post/children-born-as-a-result-of-wartime-rape-get-their-first-legal-recognition-in-bosnia-and-herzegovina.
 Valerie Oosterveld, Sexual Slavery, and the International Criminal Court: Advancing International Law, 25 MICH. J. INT’L L. 605 (2004). Available at: https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1264&context=mjil, ibid 2.
 Caroline Obbo, Hidden survivors of conflict-related sexual violence. LSE Blogs, (December 9th, 2020), Available at: https://blogs.lse.ac.uk/wps/2020/12/09/hidden-survivors-of-conflict-related-sexual-violence-children-born-of-wartime-rape/
 Article 8 of the Universal Declaration of Human Rights. International Covenant on Civil and Political Rights Article 2. Article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination. Article 14 of the Convention against Torture and Other Cruel. Inhuman or Degrading Treatment or Punishment. Article 39 of the Convention on the Rights of the Child. Article 24 of the International Convention for the Protection of All Persons from Enforced Disappearances.
Regional instruments -Article 7 of the African Charter on Human and Peoples’ Rights. Article 25 of the American Convention on Human Rights. And, Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 75 of the Rome Statute for the International Criminal Court also incorporates the right to reparation of victims of crimes under the jurisdiction of the Court.
 United Nations, Reparations for Conflict-Related Sexual Violence, Available at: https://www.ohchr.org/Documents/Press/GuidanceNoteReparationsJune-2014.pdf
 Joanne Neenan, Closing the Protection Gap for Children Born of War. LSE, Available at: https://www.lse.ac.uk/women-peace-security/assets/documents/2018/LSE-WPS-Children-Born-of-War.pdf
 https://www.icty.org/x/file/About/OTP/un_commission_of_experts_report1994_en.pdf, para J -102 to 109.
 Child Victims and Witnesses of Crime, ECOSOC resolution 2005/20, Principles 8, 29 to 31, and 35 to 37
ICC, Trust Fund for Victims, Observations on Reparations in Response to the Scheduling Order of 14 March 2012, Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-2872, 25 April 2012
Programa Integral de Reparaciones en Peru, Ley 28592, Articles 2-6 and ibid 7.
 SGB crimes have a clear connection to children born from rape and forced pregnancies, as addressed in some international laws and prosecutions, such as the ICC’s reparations for Bemba rape victims according to Article 7(2)(f) RS. But, the absence of special jurisprudence and the failure of legislation for children born as a result of specific war crimes or war consequences led to the unification of such a vulnerable minority and their fight for their rights through the recognized idea in question. In order to raise their voices, victims from Uganda, BiH, etc. have fought and founded numerous NGOs and organizations.
Joanne Neenan, The Role of the ICC in Protecting the Rights of Children Born of Rape in War. Ejil: Talk, Blog of the European Journal of International Law. (February 12 2018) Available at: https://www.ejiltalk.org/the-role-of-the-icc-in-protecting-the-rights-of-children-born-of-rape-in-war/
 FCW’s substantial contribution to the new law’s adoption made granting of civilian rights to Bosnian victims possible. These kids will have the chance to exercise their fundamental human rights and integrate into society, says Ajna Jusic. ́
 Karim Khan, the International Criminal Court’s Chief Prosecutor. Ibid 2 https://twitter.com/KarimKhanQC/status/1547956776259112972
Editor: Pratik Banerjee