From Violence to Life: Children Born of War and Constructions of Victimhood

Abstract

Despite all the attention given to sexual and gender-based violence, the reality of stigma, victimization, violence and socio-economic marginalisation of children born of war (CBW) has largely remained unexamined. Although CBW consider themselves as victims, domestic and international actors largely have failed to include them within legal conceptions of victimhood. Whether a child born of harmful behaviour should be seen as a victim has been significantly explored in law only in relation to so-called ‘wrongful life’ and ‘wrongful birth’ cases in the law of private responsibility. On the whole, courts have been extremely reluctant to accept claims of that nature because of a perceived tension between what has been refereed to as the “gift of life” and any harm associated with the circumstances of birth. In criminal law, with the exception of international criminal law, the concept of the victim has remained under-theorised. The announced shift to a ‘victim-centred’ approach with the adoption of the Rome Statute of the International Criminal Court has led to the elaboration of a more nuanced legal understanding of who should be considered a victim. Drawing from elements of the concept of victimhood as articulated in international criminal law leads us to conclude that CBW should indeed be considered as victims. This important finding challenges the policies and practices of domestic and international actors that have failed to recognise CBW as victims in post-conflict transition.

Keywords: Children born of war, victim, international criminal law, wrongful life