HUMAN RIGHTS QUARTERLY Surfacing Children: Limitations of Genocidal Rape Discourse R. Charli Carpenter* Thus from a Mixture of all Kinds began, That Het’rogenous Thing, An Englishman: In eager Rapes and furious Lust begot, Betwixt a Painted Britton and a Scot: . In whose hot Veins new Mixtures quickly ran, Infus’d betwixt a Saxon and a Dane. While their Rank Daughters, to their Parents just, Receiv’d all Nations with Promiscuous Lust. .1 From Daniel Defoe, The True-Born Englishman I. INTRODUCTION The ethnic conflict in the former Yugoslavia put war crimes against women on the international human rights agenda for the first time in history.2 In response to reports of tens of thousands of women being raped, mutilated, * R. Charli Carpenter is active in family and children’s advocacy and is a member of the Association for Genocide Scholars. She is currently completing a Ph.D. in Political Science at the University of Oregon. I gratefully acknowledge the encouragement of Robert Darst and Ronald Mitchell at the outset of this project. I am particularly indebted to Julie Novkov, Mark Harvey, Linda Schaefer, Lisa Scharlach, and Jeanette Smyth for insights and critical feedback. I also wish to thank the members of the Association of Genocide Scholars for generous and helpful comments on an earlier version of this article. 1. DANIEL DEFOE, THE TRUE-BORN ENGLISHMAN 20 (1700). 2. This statement must be qualified. A legal precedent does exist for protection of civilians—particularly women—during war, which goes at least as far back as the 14th century. For a historical overview, see Catherine N. Niarchos, Women, War, and Rape: Challenges Facing the International Tribunal for the Former Yugoslavia, 17 HUM. RTS. Q. 649 (1995). Medieval prohibitions against rape, however, were couched in terms of male honor and female chastity, rather than as war crimes (torture or willful harm) specifically. As recently as the Nuremberg Trials, rape was never explicitly addressed. The response of the Western media and feminist legal scholars to the systematic rape in Bosnia-Herzegovina has resulted in rape being codified for the first time as a war crime and as a crime of gender. Human Rights Quarterly 22 (2000) 428–477 © 2000 by The Johns Hopkins University Press 2000 Limitations of Genocidal Rape 429 and executed in concentration camps as part of a systematic policy of ethnic cleansing, the international community took action against genocide for the first time since Nuremberg.3 In the process of addressing both rape and genocide, feminist legal scholars began to discuss rape as genocide, and their arguments hinged in large part on the evidence of a policy of forced impregnation.4 Evidence of forced impregnation helped excite moral senti- ment because rape-induced pregnancy was presented as a worse crime against women than rape itself, and it helped frame rape as genocidal because of pregnancy’s unique role in corroding the victimized culture. A discussion of the children born of the rapes was missing in the debate about the atrocities against women and culture. This is surprising in two respects. First, the issue of forced impregnation was inextricably linked to the genocide and because forced impregnation by definition implies the birth of children, the children of the rapes were clearly a party within the genocidal equation. Nevertheless, the particular status of the children of rapes (as rights-bearers, victims of genocide or other crimes, or refugees of war) was addressed only peripherally and never in the context of forced impregnation itself. Failing to connect the fate of rape victims and the fate of their children in legal discourse was doubly surprising because of the widespread public awareness of the children’s plight in the early 1990s. A series of news articles on the children of war-rape filled the Western press as the abandoned children filled orphanages in 1992.5 Indicating a public sensitiv- ity to their fate and an awareness of their existence, Western families mobilized to retrieve the stigmatized children from the war zone, but the Bosnian and Croatian governments refused to permit the children to leave 3. Again, this statement deserves qualification. The response of the international commu- nity has been belated, paralyzed, and indecisive. Nonetheless, the establishment of an International War Crimes Tribunal and a subsequent consensus on an International Criminal Court are unprecedented events in the international system. Thus, the war in Bosnia provided a crucial impetus for a recognition of the need for such instruments. 4. See generally MASS RAPE: THE WAR AGAINST WOMEN IN BOSNIA-HERZEGOVINA (Alexandra Stiglmayer ed., 1994) [hereinafter MASS RAPE]; BEVERLY ALLEN, RAPE WARFARE: THE HIDDEN GENOCIDE IN BOSNIA-HERZEGOVINA AND CROATIA (1996); Dorean Marguerite Koenig, Women and Rape in Ethnic Conflict and War, 5 HASTINGS WOMEN’S L.J. 129 (1994); Jennifer Green et al., Affecting the Rules for the Prosecution of Rape and Other Gender-Based Violence Before the International Criminal Tribunal for the Former Yugoslavia: A Feminist Proposal and Critique, 5 HASTINGS WOMEN’S L.J. 171 (1994). 5. See Michael J. Jordan, Born of Rape, Abandoned Bosnian Babies Face Uncertain Future, MIAMI HERALD, 1 July 1995, at 20A; Stacy Sullivan & Joshua Hammer, Born Under a Bad Sign? (Children Born of Rape During War), NEWSWEEK, 23 Sept. 1996, at 49; Carol J. Williams, Bosnia’s Orphans of Rape: Innocent Legacy of Hatred, L.A. TIMES, 24 July 1993, at 1; Laura Eggertson, Children of Rape: The War Produces a New Generation of Victims, MACLEAN’S, 24 May 1993, at 22; Daniela Horvath, The Children of the Rapes: Young Victims of ‘Ethnic Cleansing,’ WORLD PRESS REV., June 1993, at 11. 430 HUMAN RIGHTS QUARTERLY Vol. 22 the region.6 By the time the War Crimes Tribunal and the International Criminal Court debated genocidal rape and forced impregnation as crimes against women, the war-rape orphans had dropped out of the sight of human rights scholars and advocates.7 The purpose of this paper is twofold. The first task is to unpack the discursive politics that lay behind the marginalization of children as victims of human rights abuses in the former Yugoslavia. To this end, this paper will begin by examining the literature in which forced impregnation was articulated as a distinct crime and next attempt to identify the discursive devices through which forced impregnation was presented as a gender issue only. It will then argue that the plight of war-rape orphans escaped notice because the legal discourse that articulated forced impregnation as a distinct crime was framed in such a way as to: 1) marginalize the children as subjects of human rights law and 2) identify them with the perpetrators, rather than the victims, of genocide. Secondly, this paper will attempt to bring to light the situation of war-rape orphans and the legal framework in which to assess their plight and to suggest redress. This subsequent section represents an attempt to carve out thinking space in which to address the particular case of war-rape orphans vis-à-vis other war crimes victims in Bosnia. It is important to emphasize that this paper is calling for a discussion rather than issuing definitive arguments. Some of the important questions yet to be raised include the following: Does international law govern children victims of the ethnic violence in the former Yugoslavia? If so, who are the perpetrators? What form of redress is necessary or appropriate? What specific rights are violated, if any, when a child is forcibly and intentionally conceived in a context that precludes her from acceptance by her family, identity with a community, or access to resources? What emerges from an examination of these questions is that the prevailing framework of international law is capable of supplying only partial answers. This problem is in part a reflection of the general inadequacy of international law to address children’s rights in general. But even within the scope of available approaches to children’s rights in international law, articulating the rights of these particular children consti- tutes a unique challenge because it complicates several of the givens in international legal theory including the concept of genocide itself. 6. See Julia Elliott, Chance to Adopt Orphans from Bosnia Won’t Happen Soon; Health and Welfare Getting Many Inquiries, OTTAWA CITIZEN, 8 Aug. 1992, at A5; Williams, supra note 5, at 1. 7. On the International Tribunal for the Former Yugoslavia, see Niarchos, supra note 2. On the International Criminal Court Treaty, see Fanny Benedetti & John L. Washburn, Drafting the International Criminal Court Treaty: Two Years to Rome and an Afterword on the Rome Diplomatic Conference, 5 GLOBAL GOVERNANCE, Jan.–Mar. 1999, at 1. 2000 Limitations of Genocidal Rape 431 II. DISCOURSES OF FORCED IMPREGNATION A. The Construction of Forced Impregnation as a Crime Securing indictments for mass rapes became a political goal after reports of widespread atrocities filtered out of Bosnia and Croatia in the early 1990s.8 An awareness of the rapes was decisive in galvanizing international will to establish the International Tribunal for the Prosecution of Persons Respon- sible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 (Tribunal) in 1993.9 The campaign to place gender crimes high on the agenda at the Tribunal was led by US feminist legal scholars who fought to highlight the mass rapes among other crimes in the conflict and who identified forced impregnation as a specific crime.10 The crusade was fueled by statistics issued by the Bosnian government in October 1992 indicating that 50,000 Muslim women had been raped.11 A subsequent study conducted under the auspices of the European Community put the estimate at 20,000.12 Additionally, estimates of the number of Muslim women killed at that point ran as high as 100,000.13 The sheer numbers, coupled with the graphic stories of many victims, were enough to mobilize considerable attention toward the situation of Bosnian and Croatian women.