European Master‘s Degree in Human Rights and Democratisation University of Vienna Ludwig Boltzmann Institute of Human Rights NO MAN'S CHILD THE WAR RAPE ORPHANS Master Thesis By Joana Daniel Supervisor Helmut Sax 2002/2003 ii To the memory of my father, Manuel and to my mother, Maria Helena iii NO MAN'S CHILD These children hit walls on every side They don't belong in any place Their secret they can't hide It's written on their face. I never thought one day I'd plead For half-breeds from a land that's torn But then I saw a camp for children Whose crime was being born. From Miss Saigon iv Abstract This thesis calls attention to a group of war affected children that so far have not received the desired and deserved consideration: the war rape orphans. As the reactions towards the children are interconnected with their mothers' ordeal, a brief historical overview of rape as a war strategy, and several definitions related to sexual crimes are offered. An analysis of the international legal standards ruling sexual violence and, more specifically "forced pregnancy“ and "forced maternity" are used to show that while focusing attention on the crimes committed against women, the debates have so far ignored the children, as well as the protection of their rights. The acceptability of these children by their mothers differs substantially depending on the intention of the rapists. This difference is illustrated by two case studies: East Timor and Bosnia and Herzegovina (BiH). While they are often accepted in East Timor, they are most of the time neglected, discriminated and victims of infanticide in BiH due to identification with the rapist and therefore with the enemy. The violation of war rape orphans' rights under the Convention on the Rights of the Child is uncovered and discussed. v Acknowledgements Special acknowledgements and gratitude are due to several people that helped and supported me during one of the hardest years of my life. Erik, no matter the distance, you were with me every single day and you are always there when I need you. Thank you for all your love, support and good spirits. Carla, my dearest friend, the main responsible for this adventure, thank you for all your confidence in me. Helmut, more than a supervisor, you have been a good and caring friend, always with a word of encouragement and extremely helpful comments and suggestions. Prof. Manfred Novak, special thanks for all the support, above all during my fieldtrip to Bosnia. All the people at BIM, thank you for being so patient and helpful. My fellow masterini, special thanks for all the academic and emotional support, especially after my father's death. To all those in Sarajevo, Tuzla and Zenica that helped me in this research. Special thanks to Muhamed, for sharing your stories and experiences. Charli Carpenter, thank you for your support, and for the interest and dedication that you give to the plight of the war rape orphans. Paulo, thanks for proof reading. I want to give a very special hug to my wonderful family for all the encouragement and unconditional love. Finally, I want to give a special thank you to Bernhard, for proportioning me a "home", a shoulder and being with me during this long and lonely walk, especially in the darkest moments of frustration. Thank you for all your help and support, and for reviewing the English hundreds of times! Abbreviations vi BiH Bosnia and Herzegovina ICC International Criminal Court ICTY International Criminal Tribunal for the former Yugoslavia ICTR International Criminal Tribunal for Rwanda CEDAW Convention on the Elimination of All Forms of Discrimination against Women CRC Convention on the Rights of the Child FRETILIN Revolutionary Front for an Independent East Timor INTERFET International Force for East Timor NGO Non Governmental Organisation UN United Nations UNHCR United Nations High Commissioner for Refugees UNICEF United Nations Children's Fund UNTAET United Nations Transitional Administration in East Timor Table of Contents vii Abstract Acknowledgements Abbreviations I - Introduction 1.1. Scope and Structure of the Thesis 1 1.2. Methodology and Limitations 2 1.3. War Children œ A Brief Overview 3 II - Rape as a War Strategy 2.1. Definitions: 7 Sexual Violence 7 Rape 8 Sexual Slavery 9 Forced Impregnation 9 Enforced Pregnancy 10 Forced Maternity 10 2.2. Rape in Armed Conflicts 11 2.3. Women, Rape and Forced Impregnation in International Law 14 2.4. Concluding Remarks 18 III - War Rape Orphans 20 3.1. Children of "Unintentional Impregnation" in East Timor 21 3.1.1. Brief Historical Context 21 3.1.2. The Ordeal 22 3.1.3. Social Reaction to the Children 25 3.2. Children of "Forced Maternity" in Bosnia and Herzegovina 27 3.2.1. Brief Historical Context 27 3.2.2. The Ordeal 30 Forced Maternity as Genocide? 33 3.2.3. Social Reaction to the Children 35 viii The Media 37 The Government 38 The Islamic Community 39 The Catholic Community 42 Women's Organisations and Mother/Child Reactions 43 Orphanages 45 3.3. Concluding Remarks 46 IV œ Child Rights Standards 48 4.1. War Rape Orphans in the Convention on the Rights of the Child. 49 4.1.1. Survival Rights 51 4.1.2. Membership Rights 51 4.1.2.1. Non-discrimination 52 4.1.2.2. Name and Nationality 53 4.1.2.3. Family Rights 55 Alternative Means of Child Care 56 The BiH War Children Case 58 4.1.3. Protection Rights 60 4.1.4. Empowerment Rights 61 4.2. Justiciability of War Rape Orphans Cases 61 V œ Concluding Observations 64 ibliography Annexes 1 I-Introduction 1.1. Scope and Structure of the Thesis Two million children killed, five million maimed and twelve million orphaned in the wars during the last decade of the 20 th century alone. These are the results of the UN study presented to the UN Commission for Human Rights and the UN General Assembly in November 1996. 1 Millions of children have been killed as deliberate targets of warfare or caught up as fighters. Others have fallen victims to malnutrition, disease, sexual violence and the depredations of forced fight. 2 Children are among those that suffered the most during armed conflicts. Meanwhile, in each and every war, there were always sexual relationships between soldiers and local women. These relations range in a continuum from mutual consent to prostitution and rape. The outcome gives rise to a group of children, whose suffering often starts when the war has formally ended. They are usually called the war children. 3 Born in different circumstances, the conditions and future of these children will depend on the way their mothers were treated. Although the issue of children of rape has already been raised, remarkably little is known of their fate or to what extent they are discriminated. Their destinies are uncertain. Abandoned or neglected, sold or abused, sometimes victims of infanticide, these children need special care and special protection without being stigmatised. The aim of this study is, therefore, to draw attention to the situation of children that are born in such tragic circumstances as the case of raped women during armed conflicts. This thesis is divided in five parts. The Introduction presents a brief historical overview of the war orphans' fate during the last decades. The second part, Rape as a War Strategy, starts by several definitions related to the topic, and continues with an historical 1 Human Rights Watch, Stolen Children: Abduction and Recruitment in Northern Uganda , March 2003 vol.15, No. 7 (A), p. 375. 2 The Machel Review 1996-2000, A Critical Analysis of Progress Made and Obstacles Encountered in Increasing Protection for War-Affected Children , p.5. 3 K.Grieg, The War Children of the World, War and Children Identity project, Bergen, December 2001. See http://www.warandchildren.org. 2 overview of the women's plight and an analysis of the international legal standards ruling sexual violence and "forced pregnancy“. In the third part, devoted to the War Rape Orphans, two case studies are presented: East Timor and Bosnia and Herzegovina (BiH). In order to understand the fate of children of rape during armed conflicts, and the reasons behind several cases of rejection, neglect and infanticide, it is important to be aware of their mothers' ordeal. The way children of rape were conceived in these two countries, and their acceptance by their mothers, family and community is the main focus of this part. The case of BiH receives considerably more attention since the situation was more dramatic in this region and the level of acceptability of the children more reduced. The fourth part is dedicated to the Child Rights Standards. The protection of war rape children under the Convention on the Rights of the Child is discussed in this section. Finally, the fifth part presents some concluding remarks and proposes recommendations for the implementation of the human rights of the war rape children. 1.2. Methodology and Limitations Since the aim of the study was to evaluate the acceptability of children of rape in their communities, a qualitative approach was used employing several methods. The review of relevant literature was based on several sources like: country reports, academic journals, magazines and newspapers. Internet was a very useful resort, for example Islamic internet sites revealed to be very helpful to provide information about Islamic religious practices (see Annex III). In order to ascertain the present situation in BiH, a fieldtrip was conducted in May 2003 to Sarajevo, Tuzla and Zenica. Visits to women's organisations and orphanages were held accompanying several interviews with workers of these institutions.