Born as a Result: An Open Question for the Reparation Phase

Share

By Matmoora

This article is part of the Sudan edition of our Just Reparation newsletter, which brings together perspectives from practitioners, advocates, and organisations working alongside survivors of torture and other serious human rights violations in Sudan. This special edition explores ongoing discussions, initiatives, and pathways towards securing reparation for victims of the conflict in Sudan.

READ THE NEWSLETTER

It is not yet settled what the reparation phase in The Prosecutor v. Ali Kushayb can offer the people born as a result of the crimes of which he was convicted. The question is unfamiliar enough that even naming the group is difficult. They are usually described as children born of rape. Though those born after the 2003-2004 attacks on Darfur are now in their early twenties. Some may not describe themselves in these terms. Any serious attempt to consider what repair could mean for them must begin by acknowledging how little is reliably established about who they are, how many, and what they would want. 

The available evidence comes largely from women displaced in 2003-2004 who have described raising these children. Their accounts consistently report that birth certificates and national identity numbers were not issued; that children were called illegitimate and told they had no value because of what was done to their mothers; and that some, now parents themselves, have been no more successful in registering their own children. 

This harm takes many forms. It is not a single injury sustained in 2003-2004, but a status imposed at birth that limits opportunities and access to rights at every stage of life, and which is now being passed to a new generation. These exclusions compound over time, making the cost of inaction greater with each passing year. This is what makes civil documentation a particularly important form of restitution for this group. Victim consultations and partnerships with local women’s organisations can strengthen both the process and its outcomes by addressing generational trauma, social stigma, security concerns, and other barriers through local knowledge and expertise. 

The absence of documents may be closely linked to Sudanese law. Under Sudanese personal status law, legal identity derives from nasab (paternal lineage), and registration has generally required a father to be named. Article 149 of the Criminal Act 1991, as it stood in 2003, defined rape as zina (adultery) without consent, subjecting rape allegations to adultery evidentiary rules and exposing women who could not prove an assault to prosecution. That framework remained until February 2015, while the Evidence Act 1994 appears to have continued to blur the distinction between the offences. Article 135 permitted termination within ninety days where pregnancy resulted from rape, but access depended on Form 8, available only through police stations and approved facilities and often inaccessible in rural Darfur. The Child Act 2010 provided for the registration of children born outside marriage, but came six years after many of these births. 

What makes the question urgent rather than retrospective is that the same crimes are being committed in Darfur now. The UN Human Rights Office verified 546 incidents of conflict-related sexual violence between April 2023 and April 2026 across sixteen of Sudan’s eighteen states, and at least 59 women and girls became pregnant or bore children as a result while cautioning that these figures capture only part of what has occurred. The report states that acts committed in Darfur amounted to crimes against humanity and recorded that Masalit women were told in 2023, they would bear the attackers’ (RSF) children.   

There is no functioning registration system across most Darfur, no realistic access to termination, and no protective authority. Women displaced two decades ago described the same crimes now being committed against their daughters. Reparations, however, follow the crime of conviction and their established date and locations. There is no need to dispute that rule to recognise how it must appear from within a family where one generation is acknowledged, and the next is not, or that the order will be implemented in conditions of continuing conflict rather than aftermath. 

The doctrine is not closed. In Ongwen (Uganda), the ICC recognised children born of sexual violence as beneficiaries in their own right and treated the absence of identity documentation as a harm attracting reparation. The differences between the Ugandan and Sudanese situations are substantial. In Ongwen, the children concerned were primarily linked to crimes committed within the LRA’s system of abduction and captivity. The victim group was therefore defined by statuses such as abduction, forced marriage, and forced pregnancy, all of which were charged and adjudicated, and many returnees passed through reception centres that generated at least some form of record. In Darfur, by contrast, rape occurred during attacks on villages and communities. There is no equivalent registry, and survivors and their children are now dispersed across camps and national borders. Uganda had also been out of active conflict for more than a decade by the time the reparations order was issued, whereas any comparable measure in Sudan would need to be implemented amid an ongoing armed conflict. 

The relevance of Ongwen shows that a chamber can name this category of victims and treat documentation as repairable harm. It does not necessarily establish that identification methods used there can be transplanted.  

The harder problems are evidential and social, and they pull against each other. An adult applicant would be expected to state how or where they were born. Many – in this category – will not know. Those who do have frequently learned it as an insult. To require the declaration is to ask someone to place on a record the single fact most capable of jeopardising their social standing where they live and then to ask their mother to confirm it. Eligibility that could be established by presumption key to the crime base rather than to individual disclosure, appears the least harmful route. The same caution applies to delivery. Measures directed at this group are necessary, but if visibly separated, they risk being read locally as preferential treatment and amplifying the stigma they were meant to answer. Embedding them within collective packages accessible across the affected population, explaining the reasoning, and expressing priority through sequencing rather than differential allocation seems like the more defensible design.  

What remains open is whether a person can be recognised as a victim without being requested to say so? And what an institution owes someone who may never wish to claim? Whether a legal status created at birth and still operating two decades later is a continuing harm or a completed one? And who decides? Whether an order confined to one man and a few months in 2003 can acknowledge a harm that is being manufactured again while the order is written? Whether the acknowledgement necessarily stops at the edge of conviction? Whether the answer lies in reparations at all! These are not questions this phase will settle, but the terms it sets how the category is named, how narrowly or broadly it is drawn, whether it extends to a second generation- will shape both any later Sudanese or internationalised mechanism inherits, and how much of it has to be argued again from the beginning.

Read other articles in this series: