1. Introduction
Children born of war (CBOW) – that is, individuals conceived in the context of an armed conflict to a civilian parent and a militarized parent from the opposing side under violent and non-violent circumstancesFootnote 1 – have been considered threats in many contexts: threats to gendered moral values, to their maternal communities and even to the nation-state.Footnote 2 Many CBOW of post-Second World War Europe faced these narratives, among them children born to German mothers and Soviet fathers in Germany at the end of or shortly after the Second World War. Some of them were conceived in rapes in Berlin and other eastern German regions as the war came to an end, others were conceived in more or less consensual relationships during Soviet occupation in East Germany.Footnote 3 As in most post-conflict contexts, these CBOW grew up with their biological mothers or with caretakers from their maternal side and without their biological fathers.Footnote 4
The realities of CBOW are tightly connected to their biological fathers and mothers. The association with the father typically has negative consequences for the child. Terms such as ‘Russenkind’ (translation: ‘Russian child’) were widely used to refer to the German–Soviet CBOW, suggesting a derogative association of these children with their paternal, militarized side.Footnote 5 Similar terms exist in many other contexts which typically emphasize the link of the child with its father in a negative manner.Footnote 6 Association with the mother usually has rather positive or at least neutral consequences. Their mothers – if they were victims of sexual violence – are typically considered victims. However, if their mothers entered into voluntary relationships with opposing soldiers, historically and still often today, they are ostracized or ignored, both of which also have negative implications for the associated children.Footnote 7 CBOW in many contexts face patterns of discrimination, elevated health risks, legal challenges, and social exclusion.Footnote 8 These harms typically occur within the maternal communities.Footnote 9 These children thus find themselves torn between mother and father with regard to narratives of blame and realities of harm. The framing of CBOW in reference to their biological parents is a theme that recurs in recent decisions by the International Criminal Court (the ICC or the Court) on CBOW. In March 2021, the ICC recognized CBOW for the first time in international criminal law as victims for the purpose of reparations in the Ntaganda case.Footnote 10 In 2024, this approach was repeated in the Ongwen case.Footnote 11 In both reparations’ orders, the Chambers attributed responsibility for the harms suffered by CBOW to their biological fathers on the basis of the latter’s perpetration of rape and sexual slavery against the mothers of these children.
In her assessment of roles of men and women in the context of armed conflict, Jean Bethke Elshtain critically notes, ‘[w]e in the West are the heirs of a tradition that assumes an affinity between women and peace, between men and war, a tradition that consists of culturally constructed and transmitted myths’.Footnote 12 Elshtain’s critique of this dichotomy remains relevant today, as the legal narrative by the ICC is drawing on the biological mother and father of CBOW in a gendered construction of responsibility, as will be shown in this article. In exploring the gendered narration of harm and blame, this article will take a socio-legal approach, analyzing personal narratives of CBOW in relation to legal sources. Personal narratives can be ‘a promising vehicle for introducing legal decision-makers to a more complex, ambiguous legal subject’.Footnote 13 Such narratives help introduce complexity to issues that otherwise risk being ‘flattened or silenced’ in purely doctrinal approaches to lawFootnote 14 in line with the concept of victim dissonance.Footnote 15 In this article, the narratives of German–Soviet CBOW provide an analytical lens on gender for the critical analysis of the legal construction of recognition of CBOW at the ICC, thereby facilitating this paper’s claim for narrative nuance on the issue of legal recognition of CBOW – a topic that is still of relative novelty in international criminal justice.
Accordingly, the research questions posed in this article are: First, how do German CBOW recount personal narratives about gendered harm and blame from an end-of-life perspective? Second, how do these personal narratives about mothers and fathers help us understand the gendered implications of ICC rulings on CBOW?
2. Bad mothers, good fathers: Perceptions of CBOW
In the last days of the Second World War, Soviet soldiers raped a high number of women in Germany.Footnote 16 However, there also were transactional and consensual relationships between local women and the Soviet occupation soldiers.Footnote 17 Transactional relationships involved German women engaging in sexual relations in exchange for food or protection at the end of the war and in the early days of occupation. Consensual relationships existed in the years of Soviet occupation that followed in East Germany, where some German women had consensual, loving relationships with members of the Soviet occupying forces.Footnote 18 Some German women had also had consensual relationships with Soviet soldiers during the war, such as with Soviet prisoners of war and forced labourers who were detained in camps located in different regions in the German Reich.Footnote 19 Some of them worked in local companies or on farms, thereby interacting with the local population.Footnote 20 Regardless of the constellation and whether it involved violence or not, many of these women were chastized, punished, or rejected for their sexual relations with foreign soldiers.Footnote 21 National Socialist denominations of ‘Russians’ as ‘subhuman’ played a role in this, alongside gendered expectations of the German women. A large number of them became pregnant.Footnote 22 After giving birth, many sought to hide the biological origins of their children in fear of stigmatization and social disadvantages, for example by moving across the country. In postwar West Germany, the whole topic was largely silenced, and reports of sexual violence and voluntary sexual relations with Soviet soldiers were dismissed as a ‘disgrace for the German woman’.Footnote 23 In East Germany, Soviet nationals were not per se seen as enemies, and mothers and their children had less to fear, but openly talking about misconduct by Soviet soldiers, such as the rapes, was difficult.Footnote 24 In neither West nor East Germany were rapes punished as crimes of war, and in neither case did CBOW or their mothers receive formal recognition or systematic and accessible support.Footnote 25 Although these CBOW were born many decades ago, there are similarities to contemporary circumstances of CBOW being born under occupation (such as in Eastern Ukraine) or following conflict-related sexual violence in a number of contemporary conflicts.
For this article, 13 interviews and six pieces of documentary data were analyzed. The interviews were gathered in a snowball approach all over Germany, facilitated by associations of Soviet–German so-called occupation children.Footnote 26 All respondents were conceived at the end of the Second World War or during the Soviet occupation until 1955. Nine of the participants were born in the eastern parts of Germany and the former German Reich, and four in today’s western Germany. Owing to moves during childhood, only six grew up in East Germany, and the remaining seven grew up in West Germany. The respondents were conceived in consensual and love relationships (two), through conflict-related rape (four), or under circumstances unknownFootnote 27 to the participant which likely included at least some transactional relationships (seven).
Eight of the interviewees were women, five were men. The interviewees were around 77 years old at the time of interviewing. A few participants had participated in studies before or had published memoirs or conducted media interviews on their backgrounds. Interviews with such ‘professional contemporary witnesses’Footnote 28 come with a potential for ‘extended perspectives’Footnote 29 in qualitative analyses, but also with potential for narrative bias and other limitations.Footnote 30 In this article, documentary data was used to triangulate and supplement the analysis of the life histories provided by the participants in the interviews. The documentary data was provided by some of the interviewees either during or after the interview. The documents consist of an essay, several court records and administrative documents, a letter, and an ID document with an attached note written by the mother of one of the participants. Together, this data provides nuanced insights into the implications of CBOW identities across an entire lifetime. This end-of-life perspective is particularly well-suited for illustrating the complexity of the relationships between CBOW and their biological mother and father, as will be evident in the following. Both mothers and fathers featured heavily in the semi-structured life history interviews and the documentary data. Two central themes emerged regarding the parents, namely, ambivalence towards the mother and identification with the father.
2.1. Ambivalence regarding the mother
In the participants’ narratives, the figure of the mother was drawn with considerable ambivalence. Some participants had purely positive relations with and memories of their mothers, but most did not.
Several of the interviewees recounted that their mothers had been chronically ill with certified and uncertified psychological and physical illnesses, which rendered some of them unable to take care of their children or to work. In this regard, one participant explained how she often had to stay with a friend of her mother’s because the mother was ‘always sick, always in the hospital, on a cure’.Footnote 31 She added that she presumes that her mother frequently went off to get treatment ‘to protect herself and to protect me’, suggesting that the physical separation between mother and child was necessary for both of their emotional and physical safety.Footnote 32 Her mother had been detained in a labour camp for three years during the Soviet occupation, where she had experienced severe mistreatment. It was in this camp that she became pregnant. The precise circumstances of her conception are unknown to the participant. But according to her, the mother passed on her own terrible experiences to her child in the form of frequent physical and emotional abuse.Footnote 33
One participant shared that her mother had been raped repeatedly: ‘It didn’t just happen once. She was pregnant another time. But she lost it. But not from him. She was raped a lot. All the women there were’.Footnote 34 In an effort to forgo even more rapes, her mother had eventually agreed to sexual contact with one particular Soviet soldier: ‘rather one than a hundred’, as the participant explained her mother’s choice. The participant’s mother suffered trauma as a result of her experiences, and, in the participant’s view, this may have rendered her unable to be a good and loving parent to her.Footnote 35 Similar reports exist of women agreeing to subsistence-related sexual arrangements for their own safety and survival, both during the Second World WarFootnote 36 and today, such as in cases of sexual arrangements (often constituting exploitation) with UN peacekeepers.Footnote 37 As documented elsewhere, many CBOW themselves appear not to make a distinction between violent and non-violent conceptions, welcoming CBOW as members of their associations irrespective of the nature of their conception.Footnote 38
Another participant stated that his mother was ‘occupied with trauma’,Footnote 39 making her sometimes unavailable to her child but also rendering her unable to enter into a new relationship. Such situations were mostly the case for mothers who were raped,Footnote 40 but not exclusively so.Footnote 41 Some of the participants’ mothers tried to receive support or compensation from the state with respect to the rapes they suffered. Psychological counselling seemed not to have been available to these women, among other reasons, owing to stigma preventing them from safely seeking help.Footnote 42 The withdrawal, emotional unavailability, and silence on the part of the mother that several participants described may have been an effort at self-preservation, but it may also have been imposed on the women by virtue of societal and political pressure to keep silent about their experiences.Footnote 43
Other participants had a positive bond with their mothers. One consensually conceived participant who grew up in East Germany stated that his background taught him to be accepting of other cultures and languages. This level of broadmindedness towards people of other nationalities and cultures was fostered by his mother, who had told him about who his father was when he was young.Footnote 44 One participant conceived through rape stated that, despite instances of struggles with self-confidence and pain related to the background of his conception, he ‘grew up carefree on the whole’.Footnote 45 He described ways in which his mother went out of her way to create a close bond with him despite the violence she had suffered that had resulted in her giving birth to him.
Another participant had also built a positive bond with her mother, but this had not been without its challenges. This participant had been given up for adoption by her biological mother, who had conceived her through rape by a Soviet soldier.Footnote 46 When the participant was in her twenties, she managed to find her biological mother. The sudden contact was initially difficult for the mother. The participant stated that her existence was a painful reminder to her mother of the rape she had suffered. After the initial shock, however, they managed to establish a relationship that lasted for several decades. However, this relationship was later terminated by the mother’s husband, who argued that maintaining the relationship would be too stressful for the mother as she was growing older and facing dementia. This breaking off of contact with her biological mother caused great pain for the participant.
Several participants had a rather neutral outlook on their mothers that was primarily due to the fact that, for much of their childhood, the mother had not been the primary caretaker. One participant, who was raised by her aunt and maternal grandparents for part of her childhood, described her relation to her mother as ‘on and off’.Footnote 47 The reasons for the distant relationship between several of the participants and their mothers include health reasons, including mental health, socio-economic reasons (e.g., the need to relocate to find work), or a new relationship/marriage of the mother. Regarding new relationships, one participant explained that a ‘Russian child’ would be a ‘flaw’ when a woman was looking for a partner, which was why he had lived with his maternal grandparents for much of his childhood.Footnote 48
In summary, while some participants had a purely positive relationship with their mothers, most painted an ambivalent picture in their narratives. Many of them describe challenges in the relationships with their mothers, and some participants had suffered physical, emotional, and sexual abuse in childhood at the hands of their mothers or in their homes.
2.2. Identification with the father
Nearly all interviewees displayed some kind of identification or even idealisation with their biological fathers in the form of affection, interest, or at least curiosity towards the – in most cases – unknown father. Only one participant had met his father.
Most of the fathers stayed in Germany only for a brief period of time. According to Elke Kleinau, ‘[i]n the interest of German-Soviet friendship, it was not permissible to talk about these children’Footnote 49 in the East, particularly not of those conceived in rape, but also consensual relationship between Soviet soldiers and German women were forbidden.Footnote 50 In the West, these relationships were considered a disgrace and any children born as a consequence were therefore largely swept under the rug.Footnote 51 Consequently, maintaining or establishing contact between the children and their fathers was difficult. But all participants had embarked on searches for their biological fathers or paternal relatives, so both violently and non-violently conceived participants. Most of them did so late in life. They conducted their searches on social media, on Russian TV shows, in archives and through DNA testing in the hope of finding paternal relatives on platforms such as ancestry.com . Some engaged professionals in their search, while others physically travelled to the biological father’s homeland to search for clues. Some were successful and made digital and/or live contact with relatives, such as stepsiblings in former Soviet republics. For most, the search for and establishment of contact with paternal relatives was a highly emotional topic. The search for the biological father and paternal relatives is also a focus in the associations and groups that German–Soviet occupation children have formed. Searches for paternal roots are common among CBOW, also in other contexts.Footnote 52 Glaesmer and Lee have noted that there is an emphasis on the paternal origins among some groups of CBOW, irrespective of whether conception was violent or not.Footnote 53
Several participants described the reasons for their searches as an intense longing to know their origins and identity. One participant, who was likely conceived either through rape or in subsistence-related circumstances, stated:
I wanted to know now, who am I? … Because there’s always something missing somewhere…. I think about it almost every day. Most of the time, when I’m lying in bed, I think about it. You simply want to know … who you are.Footnote 54
One participant shared court files related to her search.Footnote 55 Specifically, she had argued that she had a right to know her roots and, on this basis, wished to exhume the grave of the man she, based on research she has done, presumes to be her father. DNA testing would give her certainty regarding her identity. The participant claimed to have suffered as a result of not knowing her roots, but she was not successful with her legal action.Footnote 56
Some participants managed to find paternal relatives in various former Soviet nations. Some had had positive experiences connecting with their paternal families. One participant had recently found paternal relatives. When sharing this in the interview, he cried out in relief, overwhelmed by emotions.Footnote 57 While, for most, the search for and connection with paternal relatives was a highly emotive matter, some had a more distant relationship with their newfound relatives.Footnote 58
The mothers of several participants had either provided their children with all the information they had on the father or had searched themselves. One participant’s mother, who had been raped, kept a copy of an old registration card of hers for her son. This card contained a couple of words and numbers written by the soldier who later raped her. She had added a note, addressing her son, ‘this is the handwriting of your father’,Footnote 59 along with the few biographical details she knew about the soldier: his hometown and his military rank. Even though she had been raped, she apparently wanted to provide some information regarding her son’s paternal origins. Like many others, this participant later in life conducted a search for his biological father using the clues left by his mother.Footnote 60 Another participant’s mother searched herself for her child’s father, with whom she had had a love affair. She had reason to believe that, following his detention in a prisoner of war camp in Northern Germany around 1944, he might have been transferred to a concentration camp. She contacted the tracing service for missing foreigners, asking whether he had managed to safely travel out of Germany after the war ‘or whether he had to give his life in a concentration camp’.Footnote 61 This mother appeared to have deeply loved this man and father of her child.
Even though, except in one case, the biological father was presumably or actually dead by the time the participants had knowledge of him and were actively seeking to connect, and even though most knew very little about him, the father was not perceived as a stranger. He is seen as a subject of hope and longing. One participant engaged in an extensive search for her father and eventually learned that he had died, which was and continues to be difficult for her. She stated: ‘I am very sad. I was hoping to find my father alive. I just can’t get over the fact that he’s dead’.Footnote 62 She keeps a picture of the father that she never knew hanging on the wall in her country house.
Several participants described similar sentiments of sadness and even grief when they thought about the fact that they never met their fathers, showcasing the depth of emotional attachment to the unknown father. Two participants, one of whom was conceived in a love relationship and the other through rape, had conducted grieving rituals for their unknown fathers.Footnote 63
Only one of the interviewees had met his biological father. This participant had a less emotional outlook towards his father than most of the other participants.Footnote 64 This participant had, from a young age, dreamed about the unknown father and tried to emulate who and from where he thought his father was. He put much effort into the search at an earlier age than the other participants. Eventually, he managed to find him. They established contact over mail and also spent time with each other in person, but this participant eventually fell out of contact with his father, because of differences in their values and lives. This instance suggests that the unknown figure may sometimes become an idealized subject of longing simply because he is unknown.
Although most participants’ perceptions of the father were largely positive, the figure of the father did not go completely unchallenged: some participants did recognize that their father had been violent, that he had raped or may have done so (since some participants did not know how they were conceived). As one participant explained, ‘and I know how stressful it is when you learn that your own father was responsible for war crimes on a larger scale. That can still be a burden when one is 80 years old’.Footnote 65
As Roupetz, Delic, and Glaesmer noted, ‘identity development is specifically challenged by being the offspring of the “enemy,” being the offspring of a perpetrator’.Footnote 66 And yet the violence committed is met with a kind of lenience by most participants conceived through rape. One participant who had presumably been conceived through violence, or at least coercion, explained how she tried to reconcile the knowledge about her conception and her father with her own identity. She wonders about her father:
Was that a brute? Was he violent? But then I think to myself, “You are not like that. So he couldn’t have been either.” I love classical music, for example. I only ever have [loved] classical music. Then I think, maybe he was also fond of classical music.Footnote 67
Like several others, this participant expresses a certain lenience towards the father’s deeds and an idealized view of him, along with an effort for connection and identification. The violent side of the father and the violence in one’s own conception get pushed aside. The emphasis instead is on an emotional connection and understanding. These efforts ultimately serve to create a positive narrative about one’s own life story.
In summary, the largely unknown figure of the father was met by most participants with a strong sense of identification, longing, and forgiveness, sometimes amounting to an idealized image. This was the case for both violently and non-violently conceived participants. While the violence some of their biological fathers inflicted on their mothers was recognized as painful for their mothers, the father himself was regarded with a forbearing outlook by most participants.
2.3. Gendered constructions of harm and blame
The following will analyze the participants’ narratives around aspects of harm and blame. As the following sections will show, these narratives are formed by the perceptions of the biological parents just discussed in conjunction with gendered norms.
2.3.1. Harm and the absence thereof
Several participants recalled negative experiences in childhood, some of which were caused by or not prevented by the mother. Some experienced severe physical violence at the hands of the mother, while others suffered years of emotional violence inflicted by the mother.
One participant was forced to do harsh manual labour in the household as a child and suffered sexual abuse in her childhood home for years. She grew up with her mother, a stepfather and stepsiblings. Within this constellation, she appeared to have been in a particularly vulnerable position. Her mother likely knew about the sexual abuse by the stepbrother, which took place at home for several years, and did not protect her from it. The mother also did not protect her from other situations and even put her child in further danger where the participant, as a child, was at risk of further sexual abuse outside of the home. Referring to her mother, this participant stated, ‘the only thing I give her credit for is that she carried me’.Footnote 68
Another participant described frequent physical and emotional violence she experienced at the hands of her mother, and explained the lifelong impact of her mother’s inability to provide adequate care: ‘Her attitude towards me has ruined my whole life. And hers too. … Everything could have been different. Everything’.Footnote 69 Several participants grew up in poverty. One participant was forced by her mother and stepfather to steal food and other essentials during childhood.Footnote 70 Hardships such as poverty and lack of access to certain levels of schooling were largely due to socio-economic circumstances related to the mothers’ limited financial means and the absence of state support in a postwar society in which public acceptance of CBOW and unmarried mothers was virtually inexistent.Footnote 71
Moreover, several interviewees shared that they had observed or directly faced anti-Russian sentiments while growing up in their neighbourhoods, school, or the media, some of which directly stemmed from National Socialist ideology and propaganda, reflected in the use of terms such as Untermensch (translation: ‘subhuman’):
[I]t was like a two-tier society. Some were the good guys, the Americans, the British who were here. And the Russians, they were really the Untermenschen [translation: ‘subhumans’]. I think that was still in the minds of the population here.Footnote 72
Two participants additionally described negative impacts on sexuality. One participant, conceived through rape, stated that he struggled with his sexuality. The knowledge of what his mother went through and mental images of the rape that led to his conception inhibited his ability to engage in sexual intercourse, particularly in adolescence.Footnote 73 Another participant also shared difficulties with sexuality.Footnote 74 These were due to sexual abuse suffered in her childhood home. Impacts on sexuality for CBOW have not been explored much in research.
Another participant described some of the circumstances that may have stood behind the challenging relations between mother and child, such as the fact that unmarried women falling pregnant was considered shameful, especially if the father was an enemy soldier. As a result of the stigmatized relation with an enemy soldier, one participant described a secrecy and silence around her origin, which she did not appreciate growing up:
My mum kept so many things from me. … Suddenly pregnant. At that time and then a relationship with the enemy. That wasn’t supposed to happen.Footnote 75
This participant hints at silence and shame, which shrouded the existence of these children. CBOW had no place in the post-war narrative in Germany. Particularly, children fathered by Soviet soldiers were met with rejection, especially in the West where this participant grew up. But while some participants described severe hardship experienced in their early years, others had had good lives. One participant who grew up in East Germany explained:
I didn’t experience any discrimination, nor on the part of the state, because it [i.e., the rejection of children fathered by Soviet soldiers] simply wasn’t an issue. That was special about the GDR [the German Democratic Republic, or East Germany]. It wasn’t an issue.Footnote 76
East Germany constituted a special place for Soviet-fathered CBOW to grow up in, as they were not faced as strongly with negative perceptions – which usually stem from a negative association with an enemy based on their parentage – simply because their fathers were not officially considered enemies but rather comrades, friends, and liberators by the government of the GDR. Nevertheless, negative perceptions of Russians and a lack of support for these ‘illegitimate children’ fathered by Soviet soldiers also existed in the East.Footnote 77
In summary, several participants denied any adverse experiences while others described harms such as emotional, physical, and sexual abuse. The participants who experienced harm in their childhood mostly did so at the hands of their mothers and within their maternal families. Roupetz, Delic, and Glaesmer discussed the complexity in the relationships between CBOW and their mothers in reference to CBOW in Germany and Bosnia and Herzegovina.Footnote 78 Citing the work of Heynes, who categorized different patterns in how mothers relate to children conceived through rape (albeit not in a conflict setting) in terms of rejection, identification and acceptance, they demonstrate that relations between the mother and child depend on various individual and structural circumstances.Footnote 79 The accounts of the participants attest to the complexities in the relationships to their mothers and the narration of harm that flows form it. These complexities were influenced by socio-cultural and gender norms, such as regarding sexual moral and the intersection of nationality and gender.Footnote 80
The mothers of CBOW and their relatives found themselves under pressure of the prevailing socio-cultural and gendered norms of the time. According to the prevailing conception of German women in post-war Germany, she was to be mostly passive, but also highly resilient for the sake of the community and society at large. She was to be a silent servant and also a steadfast protector of her children, whose fathers had gone to war. After the war, she turned into a tenacious worker according to the dominant narrative, building the country back up from the ruins as a so-called Trümmerfrau (translation: ‘rubble woman’) as most of the men were still in foreign military detention, injured or dead.Footnote 81 From this discourse, pre- and misconceptions about women who had sexual relations with or suffered rape from occupation soldiers, followed.
Women who entered into voluntary or transactional relationships with foreign soldiers failed to assume the role of the passive but resilient female war victim. Instead, they were seen as obscenely active. Sexual relations with Soviet soldiers constituted a violation of the National Socialist Party’s racialized reproduction policies.Footnote 82 One participant’s mother was imprisoned during the war for her love affair with a Russian prisoner of war; specifically, it was held that, by having sexual relations with him, she had violated her Geschlechtsehre (translation: ‘gender honour’) as a ‘German girl’, ‘lacking feelings of shame and national consciousness’.Footnote 83 Women were detained in penitentiaries, prison, and concentration camps; the severity of the punishment depended on the individual circumstances and the nationality of the man they had slept with. Others faced social chastisement, such as the public shearing of their hair.Footnote 84 These processes of legal and social punishment of women for their reproductive choices were meant to prevent the birth of ‘racially impure’ babies according to national socialist ideology and served to ‘restore the virility of the shamefully subjugated (male) nation’.Footnote 85 German men who had relationships with female foreign forced labourers were in most cases not punished.Footnote 86 This example points to the intersection of gender and nationality in the discrimination of mothers, further illustrating the difficult situation these women found themselves in, which in turn influenced their behaviour towards and expectations of their CBOW. Many CBOW occupied a special role within their families growing up. Female CBOW in particular were often subjected to a radical sexual moral, with mothers and grandmothers in particular demanding chastity from these girls.Footnote 87 This was informed by how their mothers had been viewed and treated. Other CBOW, including some of those who participated in this study, experienced mistreatment at the hands of their mothers. One participant expressed that she felt as though her mother had passed on all the hardships she had faced to her child in the form of emotional and physical punishment.Footnote 88 In addition to the risk within families, the sentiments that underlay the National Socialist policies condemning ‘Russians’ lived on in derogatory slursFootnote 89 after the Second World War particularly in West Germany, putting these CBOW at risk of othering or discrimination in their communities.
These children were not meant to exist according to the dominant narratives, and they were virtually absent from the post-war discourse. Many mothers hid the identities of these children, as evident also from the participants’ statements. In his book, Child, Promise Me that You Will Shoot Yourself,Footnote 90 Florian Huber collected testimonies from survivors of one of the largest mass suicides in German history, which took place in the North-East German town of Demmin in the last days before the end of the war in fear of the nearing Soviet soldiers.Footnote 91 The narrative of ‘the Russian’ was charged with such racialized fear paired with a deeply engrained shameful fear of rape that an unknown but high number of women together with their children killed themselves. The women who did suffer rapes, particularly at the end of the war, were met with the highly gendered expectation to accept these crimes as a form of ‘collective destiny’. The image of the ‘pragmatic rape victim’ dominated the post-war discourse on that matter.Footnote 92 The trivialization of the mass rapes was a reflection of the position of women in the post-war society, which arguably complicated not only the women’s individual ability to deal with their traumatic experiences, but also their relationship with the children born from these rapes.
When children were born, the rapes or consensual relationships with foreign soldiers could not as easily be hidden or denied by the women themselves and by society at large. This put the mothers in a difficult position between societal expectations and their children. In the spirit of the pragmatism that was expected of these women and in the absence of any institutional support, several of the mothers of the participants appeared to find their own solutions. Some participants’ mothers entered into new marriages, others moved with their children or without them, leaving the children with the grandparents or other caretakers.Footnote 93 A new husband could function as a social father for their CBOW in the absence of a biological father. The relationships between the stepfathers and the CBOW were not always good, in some cases they were devastating, but they likely contributed to a de-stigmatization of the mothers, particularly when paired with a move. Moving could have helped conceal the identity of the child which in turn made the mothers less identifiable as women who deviated from the social norms of the time.
These social norms differ depending on the political context. Some participants who deny having suffered in connection with their CBOW identity attested that there was a lack of stigma in the East where they grew up.Footnote 94 Stigma is a critical factor since it ‘affects a mother’s ability to parent; a lack of familial support, education and employment limits her capacity to provide and care for her children’.Footnote 95 This inability to parent due to a lack of support and a prevalence of stigma is reflected in some of the participants’ narratives, which speak of mothers who were emotionally or physically absent.Footnote 96 Describing the conduct of mothers who abused their children as an inability to parent would be a dangerous euphemism, however. These forms of harm cannot simply be excused with reference to structural and societal factors of the time.
The relationships between the mothers and the children, including those who participated in this study, are subject to social dynamics which placed impossible expectations on these women and made the children function as images of their mothers’ failure to adhere to society’s expectations of the German woman during and after the war. Gendered norms and expectations placed particularly on the mothers of CBOW translate into risk factors for these children. As demonstrated, some participants faced harms such as emotional, physical, and sexual abuse at the hands of the mothers or within maternal communities. In addition, some participants faced poverty, issues with identity formation and sexuality, silencing, and othering in their communities. Neither the violent conception nor the sexual violence suffered by the mother are narrated as a form of harm in itself by the participants.
2.3.2. Blame and the absence thereof
Even though several participants had difficult relationships with their mothers and some experienced abuse, they also acknowledged with great regret the suffering their mothers had to endure during and after the war.Footnote 97 They further acknowledged the impact this had had on their mothers’ abilities to care for and love their children. Most mothers had to care for their children alone and in the absence of economic support by the state, and oftentimes in fear of stigmatization.Footnote 98 Additionally, several mothers appear to have faced untreated mental and physical illnesses due to their wartime experiences.Footnote 99
In this regard, one participant who experienced harsh emotional and physical punishment at the hands of her mother added that, looking back today, she understands her mother and her behaviour better considering the ordeal her mother experienced during the war: ‘I understand today that she couldn’t help herself’.Footnote 100 Such efforts to understand and reconcile with their mothers appear to be an attempt to depict the life story in its entirety. Yet this participant still flagged some aspects of her mother’s behaviour, such as the infliction of physical violence on the participant during her childhood.Footnote 101 Other participants cut ties with their mothers because of the violence suffered during childhood.Footnote 102 The mother figure is not one-dimensional and not purely a passive survivor in this personal narrative, but is met with critical ambivalence and partly held responsible for the hardships faced, although the referenced participants did not directly mention sentiments of blame towards their mothers or maternal relatives. One participant assigned blame to the state for not protecting or supporting them.Footnote 103
None of them mentioned that they blame their fathers for any hardships encountered in life. Yet, in scholarship, ‘[t]he children’s fathers are understood as only and always perpetrators. To bring them into the discussion, it is argued, could further violate the rights of the female survivors’.Footnote 104 The CBOW who participated in the study presented here appear to take a nuanced stance on this. Noticeable among the participants’ accounts in this regard is a disconnect between their outlook on their life experiences and their (violent) conception, which appears to follow from their identification with the unknown father and ambivalence towards the mother. Particularly noteworthy in this regard is the fact that a violent conception as such is not perceived as a cause of negative experiences, harm, or difficulties in life for the participants.
This disconnect between the (violent) nature of their conception and their life experiences is illustrated in a note that one of the participants had written and decided to share after her interview. In this note, she addresses the mother of another child born of war, who is a friend of hers. They had become friends through their mutual engagement in a group for so-called Russian children. The mother addressed in the note was raped at the end of the Second World War and had her son as a result of this rape. Referring to those events, an excerpt reads:
Thank you, Maria,Footnote 105 who over 75 years ago gave birth to a son under such adverse circumstances and thereby gave him the chance to live in this world, to love and to be loved … . And may Maria forgive me for today thinking with conciliatory thoughts of the young Russian who did violence to her. That was and is great injustice. Yes! But because of it, there is one special person more in this world. Wars bring death and loss … but at the same time they bring new life.Footnote 106
The act of sexual violence is recognized as harmful and a source of great pain to the mother who suffered it, but it is not framed as such for the child. Quite to the contrary, the act of sexual violence is seen as having positive implications for the child, namely, the child’s birth. The act of rape is thus interpreted in a twofold manner: as negative for the mother but positive for the child, bringing new life and being the reason for the child’s existence. This twofold interpretation was also adopted by some mothers. One participant shared a letter that his mother had written to him late in her life. In it, the mother had used the term ‘blows’ to describe the saddest turning points in her life.Footnote 107 As these ‘blows’, she named her husband’s death on the frontlines and the death of their first child during the war. But the act of rape, albeit described as painful, is not listed among the ‘blows’ and neither is the child she conceived through the rape. This mother separated the pain and trauma of the rape from her relationship with her child. This instance suggests that it is not just some of the children who see their lives in disconnection from the (violent) manner in which they were conceived, but that also some mothers separate the harm they suffered from the child conceived thereby.Footnote 108
Another participant conceived through rape explained that the violence involved in her conception was not a cause for hate for the biological father nor of pain for herself: ‘I don’t have any grudges. After all, I have half of it’.Footnote 109 Another participant explained that, despite being born from violence, she would have liked to meet her father because, after all, it is he ‘to whom I owe my life’.Footnote 110 These instances further illustrate how conception in sexual violence can be viewed from the child’s perspective, positively reframing the conception as a source of life, regardless of its (violent) nature. Accordingly, negative life experiences are not linked to a violent conception and conversely, blame for the negative experiences is not assigned to the biological father.
For this understanding, the identification with and even idealization of the unknown father is central. As discussed above, many of the participants imagined who their biological father was in a way that emphasized a strong sense identification. These imagined visions of the father were likely influenced by the discourse at the time, in which traditional values around the nuclear family dominated.Footnote 111 Growing up without a father was a reality for many children after the war but CBOW additionally in most cases lacked any information about their father. This othered them from other children after the war who might have lost a father who was a soldier but would have been able to ask questions about him and receive answers.Footnote 112
Most participants did not know anything about their fathers growing up, or only the fact that they were Soviet soldiers. Yet, the negative narratives around Soviet soldiers could have an impact on self-image growing up and several participants appeared eager to defy negative stereotypes spread about Russians during and after the war.Footnote 113 One participant appeared still impacted by the negative image of Soviet occupation soldiers:
Well, I don’t talk about it [i.e. his identity and origin] with other people at the moment, not at all. But if I did, then the most important thing would be to make it clear that, first, we’re not doofuses, most of us have something going for them, and, second, we’re completely normal people, and not (like) the occupying soldiers from after World War II, who were lice-ridden, dirty and filthy.Footnote 114
When recounting the story of how he found out more about his father through an archive search, he stated that his father was a doctor and not ‘coarse, crude and stupid’,Footnote 115 as was the common stereotype about Soviet occupation soldiers according to his observations, suggesting a deep-rooted impact of the negative stereotypes about his paternal side on his identity. Perhaps with the intention to provide a counter-narrative to the negative image of Russians spread during the war, several participants expressed a great fondness of Russian literature, music, and ballet.Footnote 116 Another participant, after describing difficult times in her upbringing and her strict mother, implicitly paints a perfect picture of the unknown father: ‘I always thought I inherited everything bad from my mum’.Footnote 117 Particularly in light of the difficulties faced with the mother, the biological father, even in his absence, becomes a perfect counter-part who is drawn on for comfort and identification. In a societal climate where the nuclear family represented an ideal and a Russian father was a flaw, the imagined biological father became a symbol for belonging, not blame.
Several interviewees emphasized that their lives had been ‘ordinary’. The vehemence of some participants in stressing the ‘ordinary’ nature of their lives may represent a wish to provide a counter-narrative to that of the ‘victimised child born of war’ that some perceive to be the prevailing narrative in research and popular discourse.Footnote 118 As noted by other researchers, some war children construct an ‘overnormal normality’Footnote 119 in an effort to feel ‘accepted’. At the same time, ‘the bridge to the father opened up the chance to break out of the confines of the familial norm expectations’,Footnote 120 which were often particularly strict for CBOW, for example with regard to the strict sexual morals imposed, as discussed above. The idealized image of the biological father appears to have functioned as a tool both for a felt sense of social belonging and perhaps even more importantly for self-acceptance. One participant explained that his mother’s assurance that the soldier who had raped her, for whom she had worked prior to the rape, ‘was actually a good person’ was very meaningful to him: ‘it [this statement about the biological father] stayed with me my whole life’.Footnote 121 While other CBOW would have different views, this statement shows how important it can be for their own sense of self of some to have a positive or at least neutral outlook on the father even if that father committed a crime against one’s own mother.
In the socio-cultural climate at the time and particularly in the face of negative experiences in the family and at the hands of the mother, there is a multi-layered perception of blame which is intertwined with a struggle for belonging and acceptance. Considering the centrality of a father figure for identity and belonging in post-war Germany, the father is not identified as someone who is to blame for negative experiences, but as a symbol for acceptance particularly in light of the general risk for othering these children were exposed to.
3. Good mothers, bad fathers: The construction of legal recognition for CBOW
As noted in the introduction, the ICC recognized CBOW as victims in the reparations order of the Ntaganda case in 2021, followed by Ongwen in 2024 as the first international tribunal to do so. The Ntaganda case pertains to the situation in the Democratic Republic of the Congo (DRC). Ntaganda was the Deputy Chief of Staff and commander of operations of the armed group Forces Patriotiques pour la Libération du Congo (FPLC).Footnote 122 Ntaganda was declared guilty on 13 counts of war crimes and 5 counts of crimes against humanity on 8 July 2019.Footnote 123 His crimes include rape and sexual slavery, committed between 2002 and 2003 in the Ituri district of the DRC as part of a larger fight for resources and ethnic domination in Eastern DRC.Footnote 124 The order of reparations to the victims was issued on 8 March 2021.Footnote 125 This order was appealed and the appellate decision delivered on 12 September 2022.Footnote 126
The Ongwen case pertains to the situation in Northern Uganda. Ongwen was a commander in the Lord’s Resistance Army (LRA), an armed group which fought for political and ethnic domination in Uganda, partly motivated by a radical Christian ideology.Footnote 127 He was found guilty of 61 counts of crimes against humanity and war crimes, committed between 2002 and 2005 in Northern Uganda, including forced marriage, torture, rape, sexual slavery, enslavement, forced pregnancy, and the conscription of children.Footnote 128 Ongwen was himself abducted and forced to become part of the LRA as a minor.Footnote 129 The reparations order in this case was issued on 28 February 2024.Footnote 130 The reparations orders of the Court in both the Ntaganda and Ongwen case shall be the focus of the ensuing sections as that is where the Court has granted recognition for CBOW.
3.1. Reparations in the ICC system
The ICC, established in 1998 through the Rome Statute, which entered into force in 2002, is an international criminal court with jurisdiction over the crimes of genocide, crimes against humanity, war crimes, and aggression. It presently has 125 states parties (as of April 2026).Footnote 131 The system governing the Court is made up of the Assembly of State Parties, which oversees the management of the Court, including staffing and budget; the Court itself, including the office of the prosecutor and the judicial divisions; and the Trust Fund for Victims (TFV), which oversees the reparations and assistance programmes to victims.Footnote 132 As is usually the case, the TFV was ordered to draft the plan for the implementation of reparations in both the Ntaganda and Ongwen cases. As instructed by the respective Chambers, the implementation plans in both cases focus on collective reparations, which include community reparations as well as collective measures with individualized components.Footnote 133
In the Ntaganda case, reparations for CBOW in particular as proposed by the TFV and approved by the Chamber include ‘specialised medical treatments, individual and group counselling, and socio-economic reintegration, including vocational training, material support and educational assistance’.Footnote 134 Similar measures were proposed and approved in the Ongwen case with CBOW-specific measures including the facilitation of education and registration for the purpose of obtaining official documentation.Footnote 135 In addition, in the Ongwen case, all victims could receive an individual award of 750 EUR.Footnote 136
Compared to other and previous international criminal courts, the ICC has a strong focus on the interests of victims and reparations.Footnote 137 Reparations awarded by the Court typically seek to be transformative in nature. This means that the reparations awarded by the Court are meant to address the structural conditions that made victims vulnerable to the harms they suffered, such as gendered inequalities, as opposed to attempting to overturn the immediate consequences of the crimes.Footnote 138 The notion was introduced to the practice of the Court by the TFV and has been met with criticism alleging superficiality, undue political influence, and neo-colonial ambitions, but the Court and also victim representatives are holding on to it.Footnote 139 Another critique of the Court’s reparations mandate has been that it is dependent on the prosecutor’s selection of charges.Footnote 140 Despite the lack of itemized charges and despite them having been virtually absent throughout the proceedings in Ntaganda and Ongwen, CBOW in Eastern DRC and Northern Uganda were nevertheless eligible for reparations thanks to the reparations orders linking their harm to sexual violence charges.Footnote 141 It remains to be seen to what effect the reparations will be implemented specifically regarding CBOW. Instead of the reparations as such, the following will be concerned with the reparations orders and the way recognition has been constructed for CBOW in these decisions.
3.2. The construction of legal recognition of CBOW at the ICC
In the Ntaganda reparations order, CBOW were recognized as direct victims of harms such as being socially stigmatized, and responsibility for those harms was tied to crimes of sexual violence committed against their mothers.Footnote 142 This approach was repeated in the Ongwen reparations order, which also recognized CBOW – or, in the Court’s phrasing, ‘children born of rape’Footnote 143 – as victims of sexual violence crimes.Footnote 144 In each of these cases, CBOW are framed as victims of crimes committed by their fathers (and their fathers’ commanders) against their mothers.
Specifically, in the Ntaganda reparations order, the Chamber held that ‘the harm [CBOW] suffered is a direct result of the commission of the crimes of rape and sexual slavery’.Footnote 145 In the understanding of the Chamber, such harm amounted to ‘[p]hysical, psychological, psychosocial, and economic harm (including rejection at multiple levels, discrimination, and marginalisation)’.Footnote 146 On appeal, the Chamber elaborated on the harms suffered by CBOW as, inter alia, ‘learning about the violent circumstances surrounding their conception’, ‘being socially stigmatised’, ‘not knowing who their fathers were’, ‘loss of job prospects’ and ‘social exclusion’.Footnote 147 Most of these harms are faced within their maternal communities because that is where most CBOW in the DRC (and elsewhere) grow up. For this reason, some of the harms, such as being socially stigmatized, must have been caused by members of their maternal communities and/or people in their immediate surroundings, potentially including schools, religious institutions and governmental institutions.Footnote 148 Citing expert reports commissioned by the Court, the Chamber indeed acknowledged that CBOW in their maternal communities in the DRC are ‘often rejected by their mothers, as well as by the community and nicknamed “snake children”’.Footnote 149 The ICC’s 2023 policy paper on children also recognizes that ‘children who are born as a result of rape are often stigmatised or rejected by their families or communities’.Footnote 150 In summary, then, many of the forms of harm faced by CBOW in the DRC and recognized by the Court are caused within and by their maternal communities. This resembles the personal life stories from the German–Soviet CBOW analyzed in the previous section and acknowledged by other scholars.Footnote 151
According to the Rules on Procedure and Evidence of the ICC, ‘“[v]ictims” means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court’.Footnote 152 In the Ntaganda reparations order, the Court reiterated what had previously been established in the Lubanga case,Footnote 153 namely, that the standard for establishing causation is a ‘but/for’ relationship between the crime and the harm, meaning that the crimes for which the accused was convicted must have been the ‘proximate cause’ of the harm for which reparations are sought.Footnote 154 Accordingly, ‘[t]he “damage, loss and injury,” which form the basis of a reparations claim, must have resulted from the crimes’Footnote 155 for which the accused was convicted. Determinations on such questions are to be made in the light of the circumstances of a particular case.Footnote 156
Despite the Court’s implicit acknowledgement that stigma and rejection may be caused by maternal families and communities,Footnote 157 it attributed responsibility for causing those harms to the convicted owing to his commission of sexual violence, thus turning harmful environments for CBOW within maternal communities into the proverbial elephant in the room. Claiming that the commission of sexual violence is the proximate cause of the harm CBOW suffer implies that they would not have suffered had the sexual violence – and therefore also their conception – not happened in the first place. This inference overlooks the structural causes for harm at several levels, including in maternal communities, and it carries negative ethical and psychological meaning for the concerned children. This is not to say that the legal assessment as such was wrong, but that the link to sexual violence crimes appears to reveal an analytical paradox. Constructing sexual violence as the cause of harm for CBOW is glossing over the intricacies of the specific realities faced by CBOW and suggests gendered dynamics at play in the legal construction of recognition for CBOW.
4. Discussion
This section will dive deeper into the gendered stereotypes at play in the legal narrative, followed by a discussion of possible approaches to a reimagination of CBOW and their recognition in international criminal justice. These discussions are made in light of the above analyses of the personal and legal narratives in reference to gender and criminological theory.
4.1. The ‘good mother, bad father’ paradigm
Although a number of scholars have acknowledged that maternal communities ‘may have some culpability’ for harms suffered by CBOW, they are generally not made responsible for it.Footnote 158 As Michael Goodhart specified with regard to CBOW and their mothers: acknowledging harm by maternal – victimized – communities ‘contradicts our commonsense intuition that it is the rapist-fathers who bear moral responsibility for the children’s plight’.Footnote 159 An attribution of responsibility for harm suffered by CBOW to their maternal communities would make women and girls ‘bad mothers who have failed to fulfil their parental roles’,Footnote 160 which would constitute ‘a seemingly unacceptable challenge to the archetypes of idealised victims and perpetrators in international criminal justice’.Footnote 161 Consequently, most scholarly attention has been devoted to finding ways of attributing responsibility to the fathers of CBOW, as also reflected in the ICC’s decisions.
An episode from the Ongwen case illustrates how the normativity attached to motherhood and fatherhood permeates legal decision-making. Motherhood has been invoked as a defence strategy in the small number of cases brought against women in international criminal courts.Footnote 162 Accordingly, the defence in Ongwen tried to invoke the defendant’s fatherhood as an argument for the mitigation of his sentence, arguing that he could provide economic support to his children sooner if his sentence were mitigated.Footnote 163 Dominic Ongwen was abducted by the Lord’s Resistance Army (LRA) on his way to school when he was around ten years old.Footnote 164 He allegedly tried to escape the LRA or contemplated to do so at least once.Footnote 165 He was trained to fight and eventually was promoted within the LRA. He was assigned multiple so-called wives, many of whom were minors, including while Ongwen himself was still a minor. Together, they had a number of children, who are considered to be CBOW according to the prevailing academic understanding of the term.Footnote 166 The LRA was marked by gendered divisions, with tasks and power clearly divided between men/boys and women/girls. Ongwen carried considerable power due to his rank. Some of his former ‘wives’ testified against him in Court.
The defence, the prosecution and the legal representatives of victims all took quite different approaches on the question of whether Ongwen’s sentence should be mitigated on account of his fatherhood, including contradictory claims regarding whether the children he had fathered in the LRA bases wanted contact with their biological father.Footnote 167 The Chamber eventually denied the defence’s plea. Specifically, the Chamber concluded that ‘while Dominic Ongwen may harbour certain notions about his responsibilities as a father, it would be improper and even cynical, in the circumstances of the present case, to consider his fatherhood as a circumstance somehow warranting mitigation of his sentence’.Footnote 168 The Chamber went on to explain that claims about the positive contributions the convicted could make in his children’s lives, such as providing economic support, would place ‘more faith in Dominic Ongwen than justifiable on the basis of his prior behaviour’.Footnote 169 The Chamber explained the prior behaviour in question to be the life under coercive circumstances within the LRA that had been imposed on Ongwen’s children and their mothers.Footnote 170 The Chamber further stated that it did ‘not believe that Dominic Ongwen is genuinely motivated by the responsibility to take care of his children, when he so obviously and so cruelly failed to take care of them when he had the chance’,Footnote 171 arguing that ‘Dominic Ongwen had a realistic possibility of escaping or leaving the LRA’Footnote 172 but noting that he had failed to do so.
The Chamber thus argued that Ongwen should have escaped the LRA in order not to subject women and children to (further) enslavement.Footnote 173 The Chamber did not elaborate on the fact that, had Ongwen left the LRA, the children (and their mothers) could have been forcibly assigned to a different fighter. The only way in which the children would not have suffered harm had Ongwen left the LRA would have been if they had not been conceived and born in the first place. The reasoning of the Court thus turns the matter into a chicken-and-egg situation. Although mitigation of sentence is not to be confused with the attribution of responsibility for reparations, it is worthwhile to note that the Chamber’s determinations with regard to mitigation have similarly harmful ethical implications as the Court’s argumentation in the Ntaganda reparations order discussed above.
Moreover, the findings from the reparations orders seemingly contradict the determinations in the sentencing decision. In the Ntaganda reparations order, the Court listed ‘not knowing one’s father’ as one form of harm suffered by CBOW,Footnote 174 and in the Ongwen reparations order it acknowledged a ‘loss of identity’ for CBOW in Northern Uganda who are not in touch with their paternal clan.Footnote 175 It is confusing that these determinations of harm were made even though the defence’s motion had been dismissed without a discussion of the possibility that not knowing or growing up with a father may not be in the interest of the concerned children. During the trial, some children who grew up within the LRA spoke of their fighter fathers in their testimonies and did so in favourable terms. Describing life at an LRA base, one witness stated that ‘[m]ost of the people there loved me, especially my father’.Footnote 176
These considerations suggest a gender bias with regard to motherhood and fatherhood in the way CBOW are conceptualized in international criminal justice. This relates more broadly to discussions of gender in armed conflict and transitional justice in which women are typically still linked to peace and passivity rather than political and military activity: ‘violent women interrupt gender stereotypes’,Footnote 177 particularly when they are also mothers. While the importance of women’s agency in transitional justice is by now firmly established in policy and research, ‘the same cannot be said about the popular recognition of female agency in relation to active participation in political violence’,Footnote 178 as Katerina Krulisova comments. In fact, the legal narrative on CBOW and their parents attaches a great deal of passivity to the mothers, which is not in line with narratives by CBOW themselves. Also, the fathers are subject to a typical discourse framing them primarily as perpetrators who must be brought under control,Footnote 179 and not as persons with responsibilities for their actions, such as a responsibility to provide for their children – which, as narratives by CBOW show, is desired by some of these children. Instead, the legal narrative follows a prefabricated image of women, and particularly mothers, as inherently peaceful and devoted to nourishing their families. While the Court questions and ultimately denies Ongwen’s ability and willingness to parent his children, it is simply implied that the mothers as one homogenous group would naturally take on the parenting of their CBOW.
In research and practice, aside from their (assumed) status as perpetrators, the role of the biological fathers of CBOW is often neglected. A footnote in the ICC’s 2023 policy paper on children for example discusses ‘“the complex emotional and psychological effect” on both mother and child when a child is born from a forced marriage’Footnote 180 in Northern Uganda, omitting the father’s perspective. Oliviera and Baines conducted a three-year study in Northern Uganda. On the basis of interviews and focus-group discussions, they documented that some mothers and CBOW reunited with the biological father after their time with the rebel group that forcibly kept them.Footnote 181 Some fathers who participated in the study displayed affection and love for their children, as did some mothers towards the fathers.Footnote 182 Other fathers showcased a sense of responsibility for their children and their future, expressing a desire to take care and provide for them.Footnote 183 Civil society organizations in Northern Uganda, partly made up of survivors and mothers of CBOW, have established a system for tracing, and for reuniting mothers and CBOW with the biological fathers after captivity in order to facilitate economic support and community integration.Footnote 184 Of course, these responses also reflect gendered norms on the positions of women and children in society as centrally connected to that of men. Nevertheless, these insights and pragmatic solutions are still relevant to consider as they differ drastically from the Court’s narrative depicting mothers as passive and as willing to parent their CBOW alone. These practices show the fathers being called into a position of practical responsibility for their children, diversifying the role of these men in post-conflict communities beyond that of the guilty aggressor.
In contrast to these practices, the legal recognition of victim status for CBOW has relied on the depiction of CBOW as victims of their fathers, with a fatherless upbringing implied to be the best solution. With his seminal theory of the ideal victim, Nils Christie provides some insights into the dynamics at play here. Christie argues that in order to be recognized as a victim of crime by the police, in a courtroom, by a jury or by society, one must be perceived as deserving of this victim status. To achieve the status of a deserving (ideal) victim, Christie argues, one must be weak (e.g., old or young or sick), must have been carrying out a respectable project at the time the crime was committed and must have been in the right place at the time of the crime (e.g., not alone in the streets after nightfall), while the offender must have been ‘big and bad’ – and also a stranger.Footnote 185 According to ideal victim theory, ‘victims that merge with offenders make for bad victims’.Footnote 186 As argued by several scholars, the notion of the ideal victim is at play also in international criminal justice. Alessandra Cuppini argues that ‘the concept of the ideal victim is used and, perhaps, abused by the (ICC) Prosecution, Judges, and victims’ legal representatives, to pre-empt and constrain victims’ narratives in a manner that simplifies and distorts’.Footnote 187
CBOW, when they are associated with their mothers, appear to qualify for the status of the ideal victim. But, when associated with their fathers, they do not. When associated with their fathers, they are seen to represent potent reminders of the destructive reproductive project their fathers stand for. As Sanchez Parra puts it, CBOW embody ‘a coproduction of biology and culture’, making them ‘a vehicle for social meaning that encompasses what is transferred from parents to offspring’.Footnote 188 In this vein, as argued elsewhere,
survivors of sexual violence — in the logic of a conflict setting — are feminised, while their children might get perceived as masculinised and as equipped with a power that they hold over their communities as perceived symbols of defeat, shame and threat.Footnote 189
Consequently, for CBOW to finally become recognized as victims amid the logic of gendered paradigms in conflict contexts, they had to be associated with their mothers, who represent the victim status, and dissociated from their fathers, who represent the image of CBOW as threats despite legal incongruities regarding causality, contradictions regarding the harm they face and potential for harmful ethical implications.
The Court’s construction of CBOW as victims reflects a mythical connection between good and bad in relation to women and menFootnote 190 – mothers and fathers. Despite evidence of harm experienced and caused within maternal communities, in the legal narrative, the mother figure – who is the victim of sexual violence – is unchallengedly ‘good’ and her role in the vulnerability of her CBOW is ignored. The father is unchallengedly ‘bad’ with his potential role beyond that of the violent perpetrator being ignored despite the Court’s recognition that growing up without a father may be cause for harm for the child. In the spirit of the transformative nature of reparations at the Court, it could be argued that the causal intricacies are less relevant than the fact that these children will receive reparations which will aim to address structural inequalities. The recognition of CBOW certainly lifts this group out of the shadows and positions them as victims instead of threats, thereby contributing to the paradigm shift on this group that has begun in recent years.Footnote 191 However, the fact that the Court’s determinations rely on gendered preconceptions on mothers and fathers arguably precludes any true transformation of the underlying societal structures that are feeding into the harm CBOW are exposed to.
The dichotomous gendered understanding of victims and perpetrators passivizes women while also assigning them the difficult duty of raising their stigmatized children in a post-conflict setting, it subordinates CBOW, and it relieves men from any practical responsibility. The consequences may be dangerous: linking responsibility for harms suffered by CBOW to their fathers while naming harms they are exposed to in their maternal communities, as the ICC has done, might be normalizing – or even condoning – harmful behaviours towards these children within their maternal communities, potentially putting these children at further risk. Moreover, it cuts CBOW off from their fathers, who in some cases may be able to take on the social and/or economic responsibilities of fatherhood and could possibly contribute positively to the children’s lives; and more importantly, who in some cases are longed for by their children.
4.2. A call for narrative nuance
The notion of victim dissonance approaches victims as agents who might challenge and contribute to the conceptualization of legal and other responses to their experiences ‘even as it complicates narratives of responsibility and accountability’.Footnote 192 The above discussions show that there may be a dissonance between the conceptualization of recognition by external actors and the internal perspectives of CBOW themselves. To resolve this dissonance, with regard to CBOW, Ní Aoláin urges that any response must consider the child’s perspective, because what the child wants might possibly be quite different from what is thought to be in their interest by external actors.Footnote 193 As such, personal narratives can and should be used for ‘challenging official legal histories and linear historical narratives of progress’.Footnote 194
The qualitative data analyzed in this article challenge the gendered ‘good mother, bad father’ paradigm at play in the legal conceptualization of harm and responsibility regarding CBOW. For most of the CBOW interviewed for this study, the father is a subject of identification, longing and hope, while the mother is approached with ambivalence. The participants of this study do not frame acts of sexual violence suffered by their mothers as a cause for any harm they experienced in life. Their personal narratives also show that not only violently conceived CBOW may experience harm due to their parentage. The participants’ accounts further show that structural inequalities and gendered norms associated with mothers and fathers of CBOW may translate into risk factors for these children. These accounts are similar to some other stories by CBOW, such as from Norway,Footnote 195 Colombia,Footnote 196 RwandaFootnote 197 and Uganda,Footnote 198 while they will differ from others.
It is important to emphasize that CBOW are a highly heterogenous group and despite similarities among some contexts, there will be differences when compared to others. It is not the intention of this article to suggest that the German context analyzed in this article is directly comparable to any other context, but rather that there is anecdotal overlap which adds to our general understanding of CBOW as a group that is still understudied and under-addressed in international policy and law. There are limitations to looking at ICC decisions through the narratives of CBOW born almost a lifetime ago in a situation that is naturally different to the situations the Court’s decisions on CBOW pertain to. The analysis of interview and documentary materials in the first part of this article further is of qualitative nature and not representative of an entire group. Nevertheless, these empirical insights from Germany and the referenced studies from other researchers support the call for narrative nuance this article aims to make. As the under-researched group that CBOW are, and in the absence of global studies and data material, any inquiry into this topic is anecdotal on a global scale. Direct contextual comparisons are not always possible, because as long as CBOW remain a vulnerable population, gathering data on this group is subject to limitations as secrecy is a factor for safety for CBOW in many contexts. But the value of anecdotal insights is that they can still foster an understanding of the nuance in the lives and experiences of CBOW and conversely contribute to overcoming simplistic generalizations on this group. As such, we need to rely on context-specific studies to identify patterns and piece together a general understanding of CBOW in all their heterogeneity.Footnote 199
Specific approaches to the heterogeneity of CBOW realities, relying not on gendered assumptions but contextual perspectives, could be adopted by the Court since it is not bound by precedent. Such perspectives are also relevant in order to reconsider the viability of international criminal justice as a response to the needs of this group in the first place. As argued by Adetoun Ilumoka, pragmatic responses to social or socio-economic needs can be more effective than discourses around responsibility, especially when supposed benefactors are on the fringe of supposedly universal international legal norms.Footnote 200 Community practices such as those in Northern Uganda reuniting CBOW with their fathersFootnote 201 facilitate societal belonging, but also ensure the child’s access to certain rights, such as the inheritance of land. Those practices are an example of a nuanced approach to de-stigmatization that has direct benefits for the concerned child and is taking place completely apart from international legal process. The search for relatives by the German–Soviet interviewees constitutes a similar attempt to tracing paternal relatives for a sense of belonging, not facilitated by any institution but driven by these people themselves.
The arguments presented above indicate that it may be necessary to challenge the status quo in terms of how CBOW and their legal recognition are understood. Challenging this status quo does not seek to impose a superhuman ideal of motherhood or demonize sexual violence survivors, nor would it seek to provide an excuse for fathers who committed rapes. Indeed, care certainly must be taken not to reiterate patriarchal structures by implying an insufficiency of (single) mothers or an undisputed centrality of the man, the biological father.Footnote 202 And it must be noted that many mothers of CBOW are wonderful, loving parents. Moreover, it is clear from the analysis of interview data and particularly the gendered construction of harm and blame that also the insights of CBOW are not objective, but subject to social expectations placed particularly on women and mothers. Yet, the vulnerability of at least some CBOW within their maternal communities, albeit of course impacted by these expectations, is real.
What is argued here is that it may be necessary to challenge how legal recognition for CBOW is understood for the sake of achieving the victim-centric justice to which the Court aspiresFootnote 203 and in order to successfully subvert the social structures that accommodate the social exclusion and mistreatment of this group. In 2007, DeLaet urged that, ‘[i]n the long run the international community will need to challenge entrenched gender norms that lead to violence and discrimination against both children born of war and their mothers’.Footnote 204 The interview data analyzed in Section 2 on this article shows how gendered the experiences of CBOW are. This article calls not only for an acknowledgement of the fact that gender norms have shaped the realities of CBOW but that gender norms are also shaping the institutional responses to this group. This circumstance needs to be recognized and reflected upon in research and practice, including in international legal practice.
5. Conclusion
The duality in the parentage of CBOW, divided between peace and conflict and civilian and military, oftentimes translates into a dichotomous understanding of these children as either victims or threats. Gender is an all-pervasive factor in the narratives by and on this group. Gendered understandings and impacts of war have shaped the personal narratives of CBOW and the relationships to their biological parents. The interviewed CBOW break with stereotypes and portray the life-long complexity of being raised a child whose identity is divided across conflict lines. The Court, in contrast, relies on gendered stereotypes that have potentially dangerous and unethical implications for the concerned CBOW.
In both the personal and the legal narratives, the biological mother and father play a prominent role as discussed in this article in reference to interview and documentary data by German–Soviet CBOW and jurisprudence of the ICC. The participants of this study draw a nuanced image of their mothers and fathers. Their narratives reflect ambiguity when it comes to the mothers and identification or even idealization with regard to the father, even though he remained unknown to most participants. Within these overarching themes, the participants reveal a critical, yet reconciliatory perception of their mothers; a sense of longing for their biological fathers; gendered experiences of harm detached from violent conceptions; and multi-layered perceptions of blame.
These accounts provide a historical perspective on a contemporary legal question. The international legal recognition of CBOW has implicitly begun in 1945 in NurembergFootnote 205 when most of the interviewees were conceived but has only recently taken concrete shape with the 2021 Ntaganda and the 2024 Ongwen reparations orders. In both instances, the legal recognition of CBOW was constructed in close reference to these children’s parents, albeit with different implications than the personal narratives suggest. As is demonstrated in this article, the legal narrative has constructed the recognition of CBOW in reference to an existing, highly gendered narrative, closely relying on the notions of the ‘good mother’ and the ‘bad father’.
The legal narrative of the Court denies a record of the complexity of the realities faced by CBOW across contexts. This lack of narrative nuance matters because of the constitutive role of law in shaping social norms, because of the ICC’s aspiration to deliver victim-centric justice, and – most importantly – because the Court’s reasoning can potentially put CBOW at further risk. As legal recognition of CBOW is set to move ahead in the Kony caseFootnote 206 and others to come, the gendered legal narrative on CBOW therefore might need to be reconsidered, alternatives to sexual violence crimes for capturing the harms faced by CBOW and alternatives to prosecutorial justice in general may need to move into focus in response to this group. Overall, the materials analyzed in this article suggest a need to move past gendered dichotomies by amplifying the agency of CBOW in the struggle for their recognition.
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