Repairing transgenerational harm in the Ongwen case before the International Criminal Court: The next frontier in reparative justice for international crimes?

 Miriam Cohen
 LLB (Montréal) LLM (Harvard) LLM (Cambridge) LLM (Montreal) PhD (Leiden);
 Associate Professor and Canada Research Chair in Human Rights and International Reparative Justice, Faculty of Law, Université de Montréal, Canada
 https://orcid.org/0000-0002-5481-5702
 This email address is being protected from spambots. You need JavaScript enabled to view it.

  The author is grateful to Janie Renaud, Nouwagnon Olivier Afogo and Julien-Manuel Desprès for the excellent research support, and to the Social Sciences and Humanities Research Council, Canada Research Chair Program for the research funding.

 Edition: AHRLJ Volume 25 No 2 2025
 Pages: 513 - 533
 Citation: M Cohen ‘Repairing transgenerational harm in the Ongwen case before the International Criminal Court: The next frontier in reparative justice for international crimes?’ (2025) 25 African Human Rights Law Journal 513-533
 http://dx.doi.org/10.17159/1996-2096/2025/v25n2a3
 Download article in PDF

Summary

The Ongwen case marks a turning point in international criminal justice in several respects. It presented an opportunity for the International Criminal Court (ICC) to clarify the concept of transgenerational harm and reassess the standard of evidence required to prove this type of harm. One of the novel and fundamental issues refers to repairing transgenerational harm. The concept of transgenerational harm is undertheorised in the international (criminal) law literature. It remains a novel question for the ICC), being first addressed in the Katanga case in 2017. The limited jurisprudence and scholarship on this matter place the ICC in uncharted territory, requiring it to decide on and develop a coherent and consistent understanding of reparative justice concerning transgenerational harm. This article focuses on transgenerational harm in the specific context of the Ongwen case, its reparation orders, and in light of the evolving jurisprudence of the ICC. As this is unlikely to be the last case where the Court is called upon to assess reparations for this kind of harm, the Ongwen case presents a unique opportunity to reflect on the implications of repairing transgenerational harm in relation to international crimes.

Key words: reparation; transgenerational harm; International Criminal Court; international crimes; Ongwen case

1 Introduction

The Prosecutor v Dominic Ongwen case (Ongwen)1 before the International Criminal Court (ICC) illustrates many of the complexities of international criminal justice. The conviction and sentence to
25 years’ imprisonment for a total of 61 crimes, including crimes against humanity and war crimes, were confirmed on 15 December 2022 by the Appeals Chamber.2 One of the novel and fundamental issues addressed by the Court in this case referred to the reparation of transgenerational harm. In this context, on 16 December 2022, Trial Chamber IX issued a decision inviting interested parties to submit additional information regarding the transgenerational harm caused by Dominic Ongwen.3

The concept of transgenerational or intergenerational harm4 is undertheorised in international (criminal) law literature, and remains a novel question to the ICC, as it was for the first time addressed in The Prosecutor v Germain Katanga (Katanga) in 2017.5 In 2022, in The Prosecutor v Bosco Ntaganda (Ntaganda), the Appeals Chamber noted that ‘the concept of transgenerational harm is indeed novel and evolving’.6

As such, the limited jurisprudence and scholarship on this matter place the ICC in uncharted territory to decide on and develop a coherent and consistent understanding of reparative justice with regard to transgenerational harm. Specifically, the Ongwen case7 has the potential to become a significant precedent for victims of transgenerational harm caused by traumatic events and the mass commission of international crimes. In the Reparation Order of 28 February 2024, the Trial Chamber admitted that ‘children of victims of unimaginable atrocities may also experience personal suffering, even if they did not personally experience the atrocities that caused their parents’ trauma’.8

Since Ongwen himself was a victim of an armed conflict, having been abducted by a rebel group as a child, and later rising to become a high-ranking member of the group, this case brings to light several important questions for international justice and, specifically, how a court should treat transgenerational harm. The ICC faces many conflicting questions that challenge its capacity to effectively repair the transgenerational harm caused by traumatic events and to break the cycle of violence resulting from mass victimisation.

This article aims to contribute to the literature in this field by focusing on this novel question of transgenerational harm in the circumstances of the Ongwen case, and in light of the developing jurisprudence of the ICC. As this is unlikely to be the last case where the Court is called upon to assess and adjudicate reparations for this kind of harm, Ongwen presents a unique opportunity to examine transgenerational harm in the context of international crimes. The article first reflects on the concept of transgenerational harm, beyond the realm of international criminal justice. It then delves into the (limited) jurisprudence on reparation for transgenerational harm in recent cases. Finally, the article focuses on transgenerational harm in the specific case of Ongwen and the contributions of this precedent in defining the next frontier of reparative justice for international crimes.

2 Understanding harm beyond direct victims

This part first analyses the concepts of ‘intergenerational’ and ‘transgenerational’ harm in a broader context, outside the confines of the proceedings before the ICC. It then delves into the application of this type of harm in the context of the Court’s recent jurisprudence. Finally, it focuses on reparation for this type of harm.

2.1 An overview of ‘intergenerational’ and ‘transgenerational’ harm

Transgenerational harm refers to the transmission of trauma between generations induced by social violence. This phenomenon has been noted following a myriad of traumatic societal events such as the Holocaust, apartheid, and the Rwandan genocide.9 It is premised on the understanding that, even though the descendants of the direct victims have not personally experienced the traumatic event, they may bear its after-effects and as a result live with lasting repercussions. This type of harm can be observed in various forms of serious consequences, including psychological, emotional and physical symptoms, as well as socio-economic and cultural impacts.

Studies have examined the generations following the victims of different traumatic events and have led to similar conclusions. In Adonis’ study on the intergenerational trauma experienced by children of apartheid, participants have shown to be affected by symptoms of depression, panic attacks, headaches, feelings of helplessness, and poverty due to the loss of a parent or grandparent.10 Similarly, Mwanamwambwa and Pillay’s research on Rwandan refugees in Zambia has revealed that post-traumatic stress disorder and psychological distress also affect children born to refugee parents who have not directly experienced the genocide.11 Provost and Denov’s work on children born of war and sexual violence aligns with the same idea, as it notes several impacts of being born in such a traumatic context, including identity issues and social exclusion.12

The transmission of trauma operates through different mechanisms.13 If parents can pass on their trauma to their children through the neurological sequelae by which they are affected, they can also do so through their parenting. The community can also be a major actor in transmission, as traumatic social events have impacts not only on individuals but also on society and culture. Media coverage of the traumatic event and the victims, for instance, is likely to contribute to the traumatisation of the next generations. There are two schools of thought surrounding the scientific basis of the transmission of trauma, namely, the social transmission theory and the epigenetic transmission theory.14 While these two theories offer different explanations for the transmission of trauma, they are not mutually exclusive and arguably can coexist and complement each other. This ‘inclusive’ approach is defended by many,15 including the Common Legal Representatives for Victims (CLRV) for the Ongwen case.16

The distinction between ‘intergenerational’ and ‘transgenerational’ trauma has been explained in the following terms:17

  1. intergenerational harm, which occurs between contiguous generations that have a direct relationship (parents/children); and
  2. transgenerational harm, which occurs when psychological influence is transmitted between successive generations (grandparents/grandchildren).

In the international criminal law field, this distinction does not appear consequential, and a detailed categorisation is outside the scope of this article.

Transgenerational harm is the legal translation of the concept of transmission of trauma between generations.18 It is a specific and somewhat novel category of prejudice that implies many challenges for courts. Unlike other types of prejudice, transgenerational harm affects individuals who have not directly suffered the traumatic event. Causation between the crimes perpetrated by the offender and the effects on the descendants of the direct victims can be naturally complex to demonstrate by direct evidence. Courts must navigate the need to address harm stemming from criminal conduct, achieve justice, consider the rights of the accused, and ensure the fairness of reparation decisions by remedying the harm for which the offender can be held accountable.

2.2 Transgenerational harm in the jurisprudence of the International Criminal Court

The jurisprudence of the ICC regarding transgenerational harm is limited, as the concept was treated in only three cases to date. The legal concept was addressed for the first time by the ICC in the order for reparations of the Katanga case. In this case, Germain Katanga was accused of one count of crime against humanity and four counts of war crimes for the acts perpetrated during the 2003 Bogoro massacre in relation to his role as commander of the Force de résistance patriotique en Ituri (FRPI). In the judgment pursuant to article 74 of the Rome Statute delivered by ICC Trial Chamber II on 7 March 2014, Katanga was found guilty as an accessory to the international crimes, in accordance with article 25(3)(d) of the Rome Statute.19 The attack on the village of Bogoro was committed in the context of inter-ethnic conflicts and resulted in murders, attacks against civilians, the destruction of property and pillaging, to which Katanga contributed.20

In its order for reparations of 24 March 2017, Trial Chamber II noted the notion of transgenerational harm as five people born after the traumatic event in question applied for reparations using this form of harm as a basis for their request.21 The Chamber referred to the concept of transgenerational harm ‘as a phenomenon, whereby social violence is passed on from ascendants to descendants with traumatic consequences for the latter’.22 It recognised the existence of transgenerational harm and acknowledged the likelihood that some of Katanga’s victims were suffering from it. However, the Chamber declined the applications as it found no evidence to prove ‘on a balance of probabilities the causal nexus between the trauma suffered and the attack on Bogoro’.23 On appeal, this decision was returned to Trial Chamber II, which maintained its first decision rejecting reparations for Katanga’s victims of transgenerational harm.24

The concept of transgenerational harm was later further developed by the ICC in Ntaganda, in which case Bosco Ntaganda was found guilty of 18 counts of crimes against humanity and war crimes for the acts he perpetrated in 2002 and 2003 in the Democratic Republic of the Congo (DRC).25 In its order for reparations of 8 March 2021, Trial Chamber VI incorporated transgenerational harm in the list of consequences that may require reparations.26 This decision drew upon the previous ruling in Katanga to further explore the question:27

Transgenerational harm refers to a phenomenon, whereby social violence is passed on from ascendants to descendants with traumatic consequences for the latter. It is characterised by the existence of an intergenerational cycle of dysfunction that traumatised parents set in motion, handing-down trauma by acting as violent and neglectful caretakers deforming the psyche and impacting the next generation. Traumatised parents, who live in constant and unresolved fear, unconsciously adopt a frightening behaviour. This affects their children’s emotional behaviour, attachment, and well-being, increasing the risk that they will suffer post-traumatic stress disorders, mood disorders, and anxiety issues. It is argued that the noxious effects of trauma may be transmitted from one generation to the next, with a potential impact on the structure and mental health of families across generations.

Subsequently, the Appeals Chamber partially reversed the Order of Trial Chamber VI and remanded the matter to Trial Chamber II, as that Order did not adequately assess the existence and characteristics of such harm and, accordingly, failed to ‘provide reasons in relation to the concept of transgenerational harm and the evidentiary guidance to establish such harm’.28 Accordingly, Trial Chamber II subsequently ordered the parties and participants ‘to provide further submissions and information’.29 The Chamber ultimately reiterated that transgenerational harm must be assessed on a ‘case-by-case basis’30 and acknowledged the ‘existence of the phenomenon of transgenerational harm and the personal suffering that children of victims of unimaginable atrocities may also experience’.31

In its decision of 14 July 2023, Trial Chamber II concluded that ‘experts from different disciplines agree on the existence of the phenomenon of transgenerational harm in which “traumatised parents set in motion [an intergenerational cycle of dysfunction], handing-down trauma”’.32 Additionally, the Chamber stated that only children of direct victims, and no other family members, can obtain reparations for transgenerational harm.33 The Chamber found that

it was more likely than not that the children of direct victims would be suffering from transgenerational harm … Victims claiming to have suffered from transgenerational harm shall be assessed on a case-by-case basis by the authority in charge of conducting the eligibility assessment.34

This cautious approach was confirmed in the appeal.35

2.3 Reparations and transgenerational harm: Between challenges and prospects

Repairing the harm inflicted on victims of international crimes and mass atrocities is a fundamental aspect of realising reparative justice for victims.36 In the case of The Prosecutor v Thomas Lubanga Dyilo, both the Trial Chamber I and the Appeals Chamber highlighted that ‘pursuant to rule 85 of the Rules of Procedure and Evidence, reparations may be granted to … indirect victims, including the family members of direct victims’.37 Referring to the jurisprudence of the Inter-American Court of Human Rights, Trial Chamber I noted that

the concept of ‘family’ may have many cultural variations, and the Court ought to have regard to the applicable social and familial structures. In this context, the Court should take into account the widely accepted presumption that an individual is succeeded by his/her spouse and children.38

Nevertheless, assessing the transgenerational harm for the purpose of reparations can be a complex task if one uses the lens of ‘direct harm’.

In its decision of 8 March 2018, the Appeals Chamber, following the order for reparations of 24 March 2017, asked for a new analysis of the causal nexus between Katanga’s actions and the transgenerational harm of applicants, as well as the reassessment by Trial Chamber II of the applications regarding this issue.39 In its second decision of 19 July 2018, Trial Chamber II reaffirmed its rejection of reparations for victims of transgenerational harm but arrived at this conclusion through a different reasoning.40 Proving a transgenerational harm and the causation requirement can be a challenge, if the test used is that of ‘proximate cause’, which means that ‘the liability of the person who committed an act is limited to the causes that are closely connected to the result of that act and that are significant enough to justify a finding of liability’.41

As the transgenerational harm is likely to have multiple causes, Trial Chamber II found that such a standard would be more appropriate for establishing the liability of the offender in awarding reparations. It justified this decision by stating that ‘the rationale for applying the proximate cause standard is the need to place just and fair limits on the consequences of the crimes that can be attributed to the convicted person’.42 By adopting this approach, Trial Chamber II analysed the causal link between the transgenerational harm and the Bogoro attack for each applicant, notably by evaluating the proximity in time between the date of birth of the applicant and the date of the attack. The Court considered that the more distant in time, the more likely it is that other traumatic events have contributed to the transgenerational harm.43

The Ongwen case, for its part, is a watershed moment in the evolution of the ICC reparations jurisprudence in relation to transgenerational harm, settling some of the uncertainties, while providing a glimmer of hope for victims of transgenerational harm resulting from international crimes.

3 The Ongwen case: Transgenerational harm at a crossroads

As discussed above, this case deals with charges against Dominic Ongwen, a high-ranking member of the Lord’s Resistance Army (LRA) who had originally been abducted by the rebel group as a child. Ongwen was accused of 61 counts of crimes against humanity and war crimes that were committed between 2002 and 2005 in Northern Ugandan internally displaced persons (IDPs) camps. In its decision of 4 February 2021, the ICC Trial Chamber IX found Ongwen guilty of these international crimes.44 He was further sentenced to 25 years’ imprisonment on 6 May 2021.45 On the one hand, the decision of 16 December 2022 opens the door to reparations for the victims of transgenerational harm caused by Ongwen, marking a significant first in an ICC order for reparations. On the other hand, this specific case raises broader questions of transgenerational harm as Ongwen’s life path resulting from war and child abduction paradoxically illustrates the lasting consequences of mass violence on future generations.

3.1 Violence, transgenerational harm and the accused

As acknowledged by Trial Chamber IX in its judgment of 4 February 2021, Dominic Ongwen was born in Uganda in 1978 and was kidnapped by the LRA in 1987, when he was around nine years old.46 Trial Chamber IX described the LRA as an armed rebel group that has been actively opposing the government since the 1980s, thereby contributing to the Northern Ugandan conflict that has extended over the last 40 years.47 The LRA is also known to be involved in forced recruitment and abductions as part of its guerrilla campaign.48 Over the years, Ongwen grew within the organisation and moved from battalion commander to higher positions of colonel and brigadier.49

The crimes alleged were committed in his role as a high-ranking member of the LRA. The charges against him and for which he was found guilty include crimes against humanity and war crimes established by the Rome Statute, such as attacks against the civilian population; pillaging; outrages upon personal dignity; the destruction of property; murders; torture; enslavement; persecution; forced marriages; rape; sexual slavery; forced pregnancies; and the conscription of children under the age of 15 years into an armed group.50 These inhumane acts become traumatic events likely to have lasting impacts on the children of victims and subsequent generations.

In their work on children born of war and victimhood, Provost and Denov stressed the dichotomy of this case regarding the notion of transgenerational harm. While studying the notion of the ideal victim and the issues raised by such a conception of ‘real’ victims in international criminal law, they highlighted attributes that may alter the status of ‘victim’ for children born of war, one of them being innocence. By doing so, they rightfully outlined the Ongwen case:51

[O]n a broader level the public often requires a person to also have general innocence before he may be considered a legitimate victim deserving of sympathy and assistance. A person may be entirely specifically innocent in the context of the particular harm that befalls him, but society may refuse to call him a victim because of a previous criminal history or a particularly unsavoury life trajectory. The controversy surrounding Dominic Ongwen, a former child soldier tried before the ICC for committing the same crimes of which he was once the victim, exemplifies this cognitive dissonance.

Fairly addressing Ongwen’s victimisation, explaining his life path and actions, as well as the grave and tragic harm he has caused, poses a real challenge, especially for an institution such as the ICC, which is resolute in enforcing international justice.52 Despite the evident dichotomy between Ongwen’s own victimisation and the harm he later caused, transgenerational harm is analysed in relation to Ongwen’s victims. However, the context and factual matrix of the case shed a broader light on the very premise upon which the concept is based – that harm caused in contexts of mass victimisation often transcends generations, and addressing it may have an impact on the cycle of violence.

3.2 The contours of reparations for transgenerational harm in Ongwen

In its third case concerning transgenerational harm before the ICC, the door appears to be slightly more open for engagement with the particularities of this type of harm, in the context of mass victimisation, over a period of time. In their research on children born of war, Provost and Denov raised the importance of the Ongwen case in recognising the notion of transgenerational harm and allowing reparations for victims. As such, the authors underscore the importance of this case for children born of war as victims:53

In her opening statement in the trial of Dominic Ongwen in 2016, ICC Prosecutor Fatou Bensouda included a brief mention of ‘a whole category of other victims: the children born in captivity resulting from these forced marriages, who sometimes face hostility and taunts as a result of their parentage’. This was the first time an ICC organ mentioned [children born of war] as a category of victims worthy of particular attention.

In its decision of 16 December 2022, Trial Chamber IX invited relevant actors to submit additional information regarding the transgenerational harm experienced by Ongwen’s victims.54 By doing so, Trial Chamber IX sought specific evidence to formulate its order for reparations. From a procedural and evidentiary perspective, this decision could mark a potential milestone in providing redress to victims of transgenerational harm stemming from international crimes.

The information sought includes any facts, data or knowledge in relation to the scientific basis of transgenerational harm; the evidence required to prove it; the requirements for demonstrating the suffering of an applicant; the necessity of psychological examination; the issues raised by the evaluation of the transgenerational harm; and Ongwen’s liability regarding the reparation of such harm.55

In its submissions of 20 February 2023, the CLRV presented information regarding the scientific basis of transgenerational harm, the standard of evidence for establishing it, the liability of Dominic Ongwen and the number of potential beneficiaries. They provided strong scientific evidence touching on the existence of transgenerational harm and the mechanisms by which trauma can be transmitted between generations.56 They also described the experts’ conclusions regarding the trauma suffered by generations following Ongwen’s victims. This trauma encompasses mental health issues, social and developmental repercussions, as well as cultural impacts arising from incidents such as sexual violence, the recruitment of children under the age of 15 years, and attacks on internally displaced persons’ camps.57 Regarding the evidentiary standard, the CLRV suggested establishing a presumption of transgenerational harm for the children of direct victims.58 This presumption would align with the established norm of the balance of probabilities and reasonableness, as cases of mass atrocities are more likely not to result in transgenerational harm for the children of direct victims.59 They also noted the necessity of establishing such a presumption, considering the impossible nature of proving transgenerational harm for every applicant.60 The CLRV further argued that the acts committed by Ongwen were the proximate cause of the transgenerational harm and that his liability, therefore, had been proven.61 Following all this evidence, the CLRV evaluates the number of potential beneficiaries to thousands of individuals.62 This raises the question of ‘opening the floodgates’ to an unprecedented number of victims. It is argued, however, that the presence of numerous victims is not unique to transgenerational harm and, therefore, reparations should not be ruled out on this ground.

In their submissions of 17 February 2023, the Legal Representative of Victims (LRV) and the Trust Fund for Victims (TFV) provided information that aligns with this perspective, touching once again on the scientific basis of the transgenerational harm, while referring to extensive research, academic and scientific literature.63 The LRV and the TFV, like the CLRV, advocate for the establishment of a presumption of transgenerational harm for the children of direct victims of mass victimisation.64

For its part, the defence presented both additional submissions on transgenerational harm and a response to the additional submissions of the CLRV, the LRV and the TFV. In its response to the additional submissions of the CLRV, the LRV and the TFV, the defence argued that these submissions have failed to demonstrate the scientific basis of transgenerational harm and to present evidence of a transmission of trauma resulting from Ongwen’s actions.65 The defence also objected to the use of a presumption of transgenerational harm for the children of Ongwen’s direct victims.66 In its additional submissions on transgenerational harm of 17 February 2023, the defence recalled the Katanga case, in which the applications of victims of transgenerational harm were declined due to a lack of scientific evidence surrounding the concept.67 The defence reiterated the norm of proximate cause, which requires the demonstration of a causal link between Ongwen’s actions and the harm caused in order to establish his liability.68

In the reparation order in Ongwen, taking into account ‘the victims’ expectations to receive monetary awards’,69 and referring to the symbolic amount granted to the victims in Katanga in 2017,70 the Trial Chamber decided that ‘it [is] appropriate for each eligible direct and indirect victim in the case to receive a symbolic award of €750 EUR’.71 The Trial Chamber highlighted that ‘the symbolic monetary payment awarded to the victims in the present case is not intended as restitution, nor as compensation for the harm, as it was, at least in part, in the Katanga case’.72 That raised on appeal an interesting question as to whether article 75(1) of the Rome Statute and Rule 94(1)(f) of the Court Rules limit reparations to restitution, compensation and rehabilitation.73 The Appeals Chamber reiterated that the Court may order reparations measures other than those listed in article 75(1) of the Rome Statute and Rule 94(1)(f) of the Court Rules, without acting ultra vires, and that, as the Trial Chamber had specified,74 symbolic sums awarded to victims constitute an interim measure pending the reparations measures properly so called.75

4 Advancing reparations for transgenerational harm through the Ongwen reparation proceedings

The decision of Trial Chamber IX represents a significant advancement in recognising and granting reparations to victims of transgenerational harm. The Chamber acknowledged that the children of direct victims and those born out of sexual or gender-based violence (SGBV) suffered transgenerational harm due to crimes committed by Dominic Ongwen.76 This includes ‘children born out of forced marriage, forced pregnancy, rape, and sexual slavery’,77 indirect sexual or gender-based crime victims,78 ‘indirect victims of crimes against former child soldiers’,79 or ‘indirect victims of the attacks’80 who suffered ‘loss of schooling; loss of the economic support previously provided by a killed or abducted direct victim; and the economic burden associated with providing for dependents of murdered and abducted relatives’.81 This is consistent with the Addendum to the Reparations Order of the Appeals Chamber in Ntaganda:82

Transgenerational harm may not only be psychological and should, therefore, be holistically assessed and addressed, depending on the victims’ harm, through the different rehabilitation measures to be included within the individualised components of the collective reparations granted in this case.

By extending reparations to the descendants of direct victims, the Court adopted a progressive stance and set a substantial precedent concerning eligibility for reparations.83

Furthermore, in order to identify the victims, the Trial Chamber assumed that all persons residing in the camps that were attacked (Pajule, Odek, Lukodi and Abok IDP), whether or not they were present at the time of the events, are presumed to be victims.84 This interpretation was contested by the defence, and the Appeals Chamber clarified that the said presumption was well-founded and was not so general as to affect the reparations process. Therefore, noting that the Trial Chamber did not apply this presumption to moral harm suffered by victims who were absent from the camps, the Appeals Chamber rejected the argument raised by the defence on this point.85

More importantly, the Trial Chamber observed that

due regard ought to be given to the applicable social and familial structures in the affected communities … the concept of family goes beyond the strict frame of a couple and their children, to include their father and mother, brothers and sisters, and other relatives.86

Following Ntaganda,87 the Trial Chamber considered that ‘it is not relevant whether the family member is close or distant to the direct victim in the abstract, as long as the indirect victim can demonstrate to have suffered personal harm as a result of the commission of the crime against the direct victim’.88 Furthermore, it reiterated that ‘the concept of indirect victims shall not discriminate [against] individuals based on birth or marital status’.89 In any case, the Trial Chamber clearly specified that ‘a potential beneficiary alleging to be an indirect victim needs to establish that they have suffered personal harm under the same conditions as direct victims, ie, on a balance of probabilities’.90 The Appeals Chamber followed the same reasoning.91

To recognise the harm and enable reparations, the Chamber examined three major aspects of this harm. First, it addressed the existence of this harm. Second, it defined the conditions for establishing this harm, including the applicable standards of proof and causality. Finally, the Chamber specified the conditions for holding Dominic Ongwen accountable for transgenerational harm.

The Chamber ruled on the scientific basis of transgenerational harm, which the defence had contested.92 The Chamber relied on scientific studies, as well as expert testimonies during the trial, to acknowledge the harm. These studies indicate that in utero and childhood exposure to factors such as post-traumatic stress can predispose individuals to diseases with physical and psychological consequences.93 The Chamber rejected the defence’s argument regarding the lack of consensus on trauma transmission, and noted that ‘the phenomenon of transgenerational harm is rooted in sound science, reasoning, research, and qualitative study’.94 Therefore, the Trial Chamber concluded that ‘despite different explanations as to the way in which the harm is transmitted, the phenomenon of transgenerational harm is rooted in sound science, reasoning, research, and qualitative study’.95 The Chamber recognised transgenerational harm as a scientifically established phenomenon that must be taken into account in reparations, leaving no room for dispute. Indirect victims suffering this harm should receive reparations accordingly.

The Chamber also clarified the standards of proof and of causation applicable to establishing transgenerational harm. The CLVR and the LRV had requested the recognition of a presumption of transgenerational harm applicable to the children of direct victims and those born as a result of SGBV.96 However, given the insufficient information provided, the Chamber refused to conclude such a presumption in this case.97 Consequently, the victims need to prove

  1. a direct victim suffered harm as a result of a crime for which Mr Ongwen was convicted;
  2. he or she, as the child of the direct victim, suffered harm;
  3. the child’s harm arises out of the harm suffered by the direct victim, ie, the causal link; and
  4. a parent-child relationship exists.98

In relation to the standard of proof required to establish these various elements, the Chamber decided to apply the ‘balance of probabilities’ test.99 Furthermore, it rejected the idea of a general obligation to subject victims and their parents to a psychological examination as requested by the defence.100 The necessity of an examination will be assessed on a case-by-case basis.101 Thus, it put aside the defence’s argument in favour of continuous psychological examination, developed for the first time in Ntaganda.102

In a cautious approach to recognising such harm, the Court repeatedly emphasised the requirement of sufficient evidence of the causal nexus between the harm and the crime for which Dominic Ongwen was convicted.103 It recognised the ‘but/for’ standard of causation.104 Additionally, it specified that it was necessary to demonstrate that the crimes for which Dominic Ongwen had been convicted were the ‘proximate cause’ of the transgenerational harm.105 The proximate cause is defined as ‘one that is legally sufficient to result in liability, assessing, inter alia, whether it was reasonably foreseeable that the acts and conduct underlying the conviction would cause the resulting harm’.106

Finally, it is also important to note the role of the TFV, in the context of Ongwen, particularly considering the TFV’s mandate to carry out projects aimed at assisting larger groups of victims in an ICC situation country, who may not necessarily have suffered directly from the crimes for which individuals are convicted before the ICC. In this regard, the TFV can complement, through its assistance mandate, the role played by the ICC in relation to reparations for transgenerational harm. Furthermore, the TFV has a crucial function in the implementation of reparation orders. In Ongwen, the Trial Chamber instructed the TFV to prepare an implementation plan with ‘the details of the rehabilitation and symbolic measures to be included within the collective community-based reparations awarded’.107

5 Concluding reflections on transgenerational harm before the ICC and the contribution of the Ongwen precedent to reparative justice

The recognition of Dominic Ongwen’s accountability allowed the Court to rule on the modalities of reparations for these harms. Given the large number of eligible victims, efficiency, effectiveness and promptness were significant. The Chamber decided to implement collective community-based reparations focused on rehabilitation for victims of transgenerational harm.108 These measures are more likely to end the transmission of harm within communities. They enable the acquisition of new skills and the inclusion of victims in society.109 This latter aspect is crucial for children born as a result of SGBV. Additionally, the Chamber emphasised the need for symbolic measures, considering these beneficial for rehabilitation. It acknowledged that direct and indirect victims may receive a symbolic amount of €750.110 The Chamber also found other symbolic measures appropriate. These include apologies from Dominic Ongwen and the Ugandan government, memorial centres, monuments, human rights awareness campaigns, community ceremonies, prayers and reconciliation, and cleansing ceremonies.111 The Chamber recognised that these measures help reduce tensions among victims and support their reintegration into society. The recognition of such reparations measures, however, is not universally agreed upon. It has been argued that the Court should have taken a proactive approach by considering individualised reparations for specific categories of victims.112

Apart from the question of whether it is possible to grant reparations for transgenerational harm, the forms of reparations that would successfully address the transmission of trauma are another crucial question. Collective and symbolic reparations, such as commemoration and public recognition, without excluding other forms of reparation, may have significant and positive impacts on the generations following a traumatic event as a way to break the cycle of violence that perpetuates collective social, psychological and physical harm.

In the context of mass violence and victimisation, transgenerational harm is a crucial question in Ongwen, against which the next frontier of reparations for international crimes can be reached. The Ongwen precedent is a strong and symbolic case for recognising in law what science has already established: that harm can be suffered beyond the direct victims of traumatic crimes, and by adopting a reparative justice approach to such harms, the cycle of violence and destruction can begin to be deconstructed. Looking ahead, the legal recognition of transgenerational harm in Ongwen may pave the way for future cases in their approach to reparation. Such an approach could extend reparative measures to address the needs of communities and descendants who continue to bear the consequences of the harm suffered, long after the crimes themselves had been committed. By building on Ongwen, future jurisprudence has the potential to anchor reparations in a broader temporal framework, ensuring that justice responds not only to the immediate victims of international crimes, but also to the lasting impacts of the harm they cause.

  1. 1 The Prosecutor v Dominic Ongwen ICC-02/04-01/15 (Ongwen).

  2. 2 Ongwen Judgment on the appeal of Mr Ongwen against the decision of Trial Chamber IX of 4 February 2021 entitled ‘Trial Judgment’, Appeals Chamber, ICC-02/04-01/15-2022-Red (15 December 2022); Ongwen, Judgment on the appeal of Mr Dominic Ongwen against the decision of Trial Chamber IX of
    6 May 2021 entitled ‘Sentence’, Appeals Chamber, ICC-02/04-01/15-2023
    (15 December 2022).

  3. 3 Ongwen Decision on the Registry Additional Information on Victims, Trial Chamber IX, ICC-02/04-01/15-2024 (16 December 2022) para 31(b).

  4. 4 For a discussion of transgenerational harm from a broader perspective, see R Provost & M Denov ‘From violence to life: Children born of war and constructions of victimhood’ (2020) 53 New York University Journal of International Law and Politics 44-58.

  5. 5 The Prosecutor v Germain Katanga Trial Chamber II, Reparation/Compensation, ICC-01/04-01/07 (24 March 2017) (Katanga).

  6. 6 The Prosecutor v Bosco Ntaganda Judgment on the appeals against the decision of Trial Chamber VI of 8 March 2021 entitled ‘Reparations Order’, Appeals Chamber, ICC-01/04-02/06 A4-A5 (12 September 2022) para 491, https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2022_06187.PDF (accessed 30 September 2025).

  7. 7 On transgenerational harm in Ongwen, see M Ochi ‘Reparations to future generation before the ICC: Intergenerational justice accounts’ (2025) 23 Journal of International Criminal Justice 2. For a discussion of transgenerational harm at the ICC, see P Gacka ‘Remote victimisation and the proximate cause: Transgenerational harms before the International Criminal Court’ (2022) 22 International Criminal Law Review 3.

  8. 8 Ongwen Reparations Order, Trial Chamber IX, ICC-02/04-01/15 (28 February 2024) para 207, https://www.icc-cpi.int/sites/default/files/CourtRecords/0902
    ebd18078e195.pdf     (accessed 30 September 2025).

  9. 9 See, generally, D Bar-On and others ‘Multigenerational perspectives on coping with the holocaust experience: An attachment perspective for understanding the development sequel of trauma across generations’ (1998) 22 International Journal of Behavioural Development 319-320; S Rudahindwa and others ‘Transgenerational effects of the genocide against the Tutsi in Rwanda: A post-traumatic stress disorder symptom domain analysis’ (2018) 1 Open Research Africa 3-7-15; CK Adonis ‘Exploring the salience of intergenerational trauma among children and grandchildren of victims of apartheid-era gross human rights violations’ (2016) 16 Indo-Pacific Journal of Phenomenology 2.

  10. 10 Adonis (n 9) 6-8.

  11. 11 V Mwanamwambwa & BJ Pillay ‘Post-traumatic stress disorder and psychological distress in Rwandan refugees living in Zambia’ (2022) 52 South African Journal of Psychology 2, 184, https://doi.org/10.1177/00812463211031812 (accessed 30 September 2025).

  12. 12 Provost & Denov (n 4) 8-9.

  13. 13 See A Paola Abril Rincón and others ‘Intergenerational and transgenerational harm’ (2022) Memorandum, International Law Clinic of the Universidad del Rosario and the Ibero-American Institute of The Hague for Peace, Human Rights and International Justice, https://urosario.edu.co/sites/default/files/2023-03/inter-and-transgenerational-harm-english-version.pdf (accessed 30 September 2025).

  14. 14 Ongwen (n 8) paras 172-174, 178.

  15. 15 B Taxil, C Klipfel & I Fouchard ‘Réponse à la consultation publique lancée par le Bureau du Procureur de la Cour pénale internationale en vue de réviser et de compléter son Document de Politique générale relative aux enfants publié en 2016’ (2023) University of Angers 47-48, https://https://hal.science/hal-04792692v1 (accessed 30 September 2025).

  16. 16 Ongwen CLRV Submissions on transgenerational harm and estimated number of potential beneficiaries for reparations, Trial Chamber IX, ICC-02/04-01/15 (20 February 2023) paras 3-11, https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2023_00541.PDF (accessed 30 September 2025).

  17. 17 A Paola Abril Rincón and others (n 13).

  18. 18 See M Cohen & R Teles ‘L’appropriation de la transmission des traumatismes par le droit: Le préjudice transgénérationnel dans la jurisprudence de la Cour pénale internationale’ (2024) Canadian Yearbook of International Law/Annuaire canadien de droit international 61.

  19. 19 Katanga Judgment pursuant to article 74 of the Statute, Trial Chamber II, ICC-01/04-01/07 (7 March 2014), https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2015_04025.PDF (accessed 30 September 2025).

  20. 20 Katanga (n 19) paras 698, disposition.

  21. 21 Order for Reparations pursuant to Article 75 of the Statute, Katanga, Trial Chamber II, ICC-01/04-01/07 (24 March 2017) para 132, https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2017_05121.PDF (accessed 30 Septem-ber 2025).

  22. 22 Katanga (n 21) para 132.

  23. 23 Katanga (n 21) para 134.

  24. 24 Katanga Judgment on the appeals against the order of Trial Chamber II of 24 March 2017 entitled ‘Order for Reparations pursuant to Article 75 of the Statute’, Appeals Chamber, ICC-01/04-01/07 A3 A4 A5 (8 March 2018), https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2018_01651.PDF (accessed 30 September 2025); Katanga Decision on the Matter of the Transgenerational Harm Alleged by Some Applicants for Reparations Remanded by the Appeals Chamber in its Judgment of 8 March 2018, Trial Chamber II, ICC-01/04-01/07 (19 July 2018), https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2018_04641.PDF (accessed 30 September 2025).

  25. 25 Ntaganda Judgment on the appeals of Mr Bosco Ntaganda and the Prosecutor against the decision of Trial Chamber VI of 8 July 2019 entitled ‘Judgment’, Appeals Chamber, ICC-01/04-02/06 A A2 (30 March 2021), paras 28, 29, 1170 https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2021_03027.PDF (accessed 30 September 2025).

  26. 26 Ntaganda Reparations Order, Trial Chamber VI, ICC-01/04-02/06 (8 March 2021) para 71, https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2021
    _01889.PDF     (accessed 30 September 2025).

  27. 27 Ntaganda (n 26) para 73 (footnotes omitted).

  28. 28 Ntaganda Appeals Chamber, ICC-01/04-02/06 A4-A5 (12 September 2022) para 748, https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2022_06187.PDF (accessed 30 September 2025).

  29. 29 Order for the implementation of the judgment on the appeals against the decision of Trial Chamber VI of 8 March 2021 entitled ‘Reparations Order’, Ntaganda Trial Chamber II, ICC-01/04-02/06 (25 October 2022), https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2022_06469.PDF (accessed 30 September 2025).

  30. 30 Ntaganda Addendum to the Reparations Order of 8 March 2021 (14 July 2023) para 197, https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2023_01595.PDF (accessed 30 September 2025).

  31. 31 Ntaganda (n 30) para 195.

  32. 32 Ntaganda (n 30) para 175 (emphasis in the original).

  33. 33 Ntaganda (n 30) para 183.

  34. 34 Ntaganda (n 30) para 192.

  35. 35 Ntaganda Judgment on the appeals against the decision of Trial Chamber II of 14 July 2023 entitled ‘Addendum to the Reparations Order of 8 March 2021, ICC-01/04-02/06-2659’, ICC-01/04-02/06 A6 A7 (1 November 2024) paras 321, 322, 323.

  36. 36 See M Cohen Realizing reparative justice for victims of international crimes: From theory to practice (2020) 260.

  37. 37 The Prosecutor v Thomas Lubanga Dyilo Decision establishing the principles and procedures to be applied to reparations, Trial Chamber I, ICC-01/04-01/06
    (7 August 2012) para 194, https://www.icc-cpi.int/sites/default/files/Court
    Records/CR2012_07872.PDF     (accessed 30 September 2025); The Prosecutor v Thomas Lubanga Dyilo, Appeals Chamber, Order for Reparations, ICC-01/04-01/06-3129-AnxA (3 March 2015) para 6(b)(i.), https://www.icc-cpi.int/sites/default/files/RelatedRecords/CR2015_02633.PDF (accessed 30 September 2025).

  38. 38 Lubanga (n 37), para 195.

  39. 39 Judgment on the appeals against the order of Trial Chamber II of 24 March 2017 entitled ‘Order for Reparations pursuant to Article 75 of the Statute’, Katanga, Appeals Chamber, ICC-01/04-01/07 A3 A4 A5 (8 March 2018) paras 259-260, https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2018_01651.PDF (accessed 30 September 2025).

  40. 40 Katanga Decision on the Matter of the Transgenerational Harm Alleged by Some Applicants for Reparations Remanded by the Appeals Chamber in its Judgment of 8 March 2018, Trial Chamber II, ICC-01/04-01/07 (19 July 2018), https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2018_04641.PDF (accessed 30 September 2025).

  41. 41 Katanga (n 40) para 16.

  42. 42 Katanga (n 40) para 17.

  43. 43 Katanga (n 40) paras 29-30.

  44. 44 Ongwen Trial Judgment, Trial Chamber IX, ICC-02/04-01/15 (4 February 2021), https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2021_01026.PDF (accessed 30 September 2025).

  45. 45 Ongwen Sentence, Trial Chamber IX, ICC-02/04-01/15 (6 May 2021), https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2021_04230.PDF (accessed 30 September 2025).

  46. 46 Ongwen (n 44) para 30.

  47. 47 Ongwen (n 44) paras 1, 139.

  48. 48 Ongwen (n 44) para 7.

  49. 49 Ongwen (n 44) paras 134-138.

  50. 50 Ongwen (n 44) para 3116.

  51. 51 Provost & Denov (n 4) 43.

  52. 52 Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) ‘Preamble’.

  53. 53 Provost & Denov (n 4) 66.

  54. 54 Ongwen Decision on the Registry Additional Information on Victims, Trial Chamber IX, ICC-02/04-01/15 (16 December 2022) para 31, https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2022_07160.PDF (accessed 30 Sep-tember 2025).

  55. 55 Ongwen (n 54) para 31(b).

  56. 56 Ongwen CLRV Submissions on transgenerational harm and estimated number of potential beneficiaries for reparations, Trial Chamber IX, ICC-02/04-01/15 (20 February 2023) paras 8-10, https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2023_00541.PDF (accessed 30 September 2025).

  57. 57 Ongwen (n 56) para 11.

  58. 58 Ongwen (n 56) paras 14-18.

  59. 59 Ongwen (n 56) paras 18, 21.

  60. 60 Ongwen (n 56) para 23.

  61. 61 Ongwen (n 56) paras 31-32.

  62. 62 Ongwen (n 56) paras 37-40.

  63. 63 Ongwen Victims’ Additional Submissions on the Issues Identified by the Trial Chamber Pursuant to the Forthcoming Order on Reparations, with Confidential ex parte annexes A, B, C and D available to the Registry and Chamber Only, Trial Chamber IX, ICC-02/04-01/15 (17 February 2023), https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2023_00531.PDF (accessed 30 September 2025); Ongwen Trust Fund for Victims’ Submission pursuant to the ‘Decision on the Registry Additional Information on Victims’ of 16 December 2022, ICC-02/04-01/15-2024, Trial Chamber IX, ICC-02/04-01/15 (17 February 2023), https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2023_00529.PDF (accessed 30 September 2025).

  64. 64 Ongwen Victims’ Additional Submissions (n 63) para 36; Ongwen Trust Fund
    (n 63) para 33.

  65. 65 Ongwen Defence Response to the Additional Submissions on Beneficiaries and Transgenerational Harm, Trial Chamber IX, ICC-02/04-01/15 (22 March 2023) para 38, https://www.icc-cpi.int/sites/default/files/CourtRecords/CR20 23_01024.PDF (accessed 30 September 2025).

  66. 66 Ongwen (n 65) para 42.

  67. 67 Ongwen Defence Additional Submissions on Beneficiaries and Transgenerational Harm, Trial Chamber IX, ICC-02/04-01/15 (17 February 2023) para 28, https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2023_00526.PDF (accessed 30 September 2025).

  68. 68 Ongwen (n 67) paras 32-34.

  69. 69 Ongwen (n 8) para 622.

  70. 70 Ongwen (n 8) paras 626-627.

  71. 71 Ongwen (n 8) para 621.

  72. 72 Ongwen (n 8) para 626.

  73. 73 Ongwen Judgment on the appeal of Mr Dominic Ongwen against the decision of Trial Chamber IX of 28 February 2024 entitled ‘Reparations Order’, Appeals Chamber, ICC-02/04-01/15 A3 (7 April 2025) para 141, https://www.icc-cpi.int/sites/default/files/CourtRecords/0902ebd180b2e203.pdf (accessed 30 Sep-tember 2025).

  74. 74 Ongwen (n 8) para 626.

  75. 75 Ongwen Judgment on the appeal of Mr Dominic Ongwen against the decision of Trial Chamber IX of 28 February 2024 entitled ‘Reparations Order’, Appeals Chamber, ICC-02/04-01/15 A3 (7 April 2025) para 160.

  76. 76 Ongwen (n 8) para 413.

  77. 77 Ongwen (n 8) paras 125, 414(d).

  78. 78 Ongwen (n 8) para 414(e).

  79. 79 Ongwen (n 8) para 414(g).

  80. 80 Ongwen (n 8) para 414(b).

  81. 81 Ongwen (n 8) para 275.

  82. 82 Ntaganda Judgment on the appeals against the decision of Trial Chamber II of 14 July 2023 entitled ‘Addendum to the Reparations Order of 8 March 2021, ICC-01/04-02/06-2659’, ICC-01/04-02/06 A6 A7 (1 November 2024) para 329; see also Ntaganda Addendum to the Reparations Order of 8 March 2021, ICC-01/04-02/06-2659, Trial Chamber II, ICC-01/04-02/06 (14 July 2023) para188, https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2023_01595.PDF (accessed 30 September 2025).

  83. 83 JA Manoba ‘Symposium on Dominic Ongwen vase: From participation to reparations – Representing victims in the Dominic Ongwen case’ Opinio Juris (web blog) 9 April 2024, https://opiniojuris.org/2024/04/09/symposium-on-dominic-ongwen-case-from-participation-to-reparations-representing-victims-in-the-dominic-ongwen-case/ (accessed 30 September 2025).

  84. 84 Ongwen (n 8) para 163.

  85. 85 Ongwen Judgment on the appeal of Mr Dominic Ongwen against the decision of Trial Chamber IX of 28 February 2024 entitled ‘Reparations Order’, Appeals Chamber, ICC-02/04-01/15 A3 (7 April 2025) paras 92-93.

  86. 86 Ongwen (n 8) para 131; see also Ongwen Judgment on the appeal of Mr Dominic Ongwen against the decision of Trial Chamber IX of 28 February 2024 entitled ‘Reparations Order’, Appeals Chamber, ICC-02/04-01/15 A3 (7 April 2025) para 102.

  87. 87 Ntaganda Trial Chamber VI, Reparations Order, ICC-01/04-02/06-2659 (8 March 2021) paras 125-126, https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2021_01889.PDF (accessed 30 September 2025).

  88. 88 Ongwen (n 8) para 132.

  89. 89 Ongwen (n 8) para 133.

  90. 90 Ongwen (n 8) para 487.

  91. 91 Ongwen Judgment on the appeal of Mr Dominic Ongwen against the decision of Trial Chamber IX of 28 February 2024 entitled ‘Reparations Order’, Appeals Chamber, ICC-02/04-01/15 A3 (7 April 2025) para 122.

  92. 92 Ongwen Defence Response to the Additional Submissions on Beneficiaries and Transgenerational Harm, Trial Chamber IX, ICC-02/04-01/15 (22 March 2023) para 38, https://www.icc-cpi.int/sites/default/files/CourtRecords/CR
    2023_01024.PDF     (accessed 30 September 2025).

  93. 93 Ongwen (n 8) para 181.

  94. 94 Ongwen (n 8) para 182.

  95. 95 As above.

  96. 96 Ongwen (n 8) paras 183, 184.

  97. 97 Ongwen (n 8) paras 195, 555.

  98. 98 Ongwen (n 8) para 194.

  99. 99 Ongwen (n 8) para 193.

  100. 100 Ongwen (n 8) paras 196-197.

  101. 101 Ongwen (n 8) para 196.

  102. 102 As above.

  103. 103 Ongwen (n 8) para 197.

  104. 104 Ongwen (n 8) para 205.

  105. 105 As above.

  106. 106 Ongwen (n 8) para 420.

  107. 107 Ongwen (n 8) para 797. See also Ongwen, Trust Fund for Victims’ submission of draft Implementation Plan, Trial Chamber II, ICC-02/04-01/15 (3 September 2024).

  108. 108 Ongwen (n 8) para 613.

  109. 109 Ongwen (n 8) para 616.

  110. 110 Ongwen (n 8) para 621.

  111. 111 Ongwen (n 8) para 635.

  112. 112 Manoba (n 83).