In July, the ICC Trial Chamber II rejected victims’ reparations claims in an appeal of the ruling for Germain Katanga, brought by five descendants of the 2003 Bongoro massacre who had suffered psychological harm. The court upheld its previous decision that an evidentiary basis was lacking to prove transgenerational harm, concluding that events that occurred before the Bogoro attacks could have contributed to the harm.
The judges explored two theories of transgenerational harm: one focused on epigenetics, and the other on the attachment between the parent and child. Both theories reveal a relationship between trauma suffered by the parent and the psychological well-being of a child who has not directly experienced the traumatic events. The court defined transgenerational harm as “a phenomenon, whereby social violence is passed on from ascendants to descendants with traumatic consequences for the latter,” but did not look at the broader intergenerational consequences of the harms.
In trying to prove causation, the judges considered that the closer the date of birth to the atrocities committed, the greater the likelihood of transgenerational harm. In my view, this linear understanding is flawed. It does not capture the complexity of psychological responses to trauma, which do not necessarily follow an expected progression of easing with time. In ICTJ’s work in Northern Uganda, for example, we found that the emotional, physical, or social pain caused by the rape of young women in the Lord’s Resistance Army actually increased over time for their children, born of this wartime sexual violence. From Rejection to Redress highlights the need to look beyond the individual to the broader community to fully understand the nature and extent of intergenerational harm suffered by victims and their children.
In the case of children born of wartime sexual violence, where the mothers face severe rejection, and in turn pass on shame, stigma and social exclusion to their children, a broader view should determine solutions and outcomes. As a mother from Lamwo explained, “The chain of problems has kept increasing for me.” One can imagine concentric circles of harm stemming from the individual violation, similar to the ripple effect created by throwing a pebble in the water.
It is a positive step forward that the court has considered research and data around transgenerational harm. But the ruling reveals the limitations of the ICC’s strict standards of proof.
The Katanga decision should not be taken as a precedent for transitional justice efforts. Whereas reparations claims of this nature may not be satisfactorily addressed by the courts, they should be considered and addressed through an administrative process. Transgenerational harm is a very real and serious problem that human rights advocates and policy makers must continue to research and take seriously in formulating responses to the worst abuses.
