Surfacing children: Limitations of genocidal rape discourse

Human Rights Quarterly

Volumn 22, Issue 2, 2000, Pages 428-476

  Carpenter, R Charli ^a,b  

^a Association for Genocide Scholars

^b UNIVERSITY OF OREGON   (United States)

Author keywords

[No Author keywords available]

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EID: 0012100101     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.2000.0020     Document Type: Article

References (237)

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.
3. Again, this statement deserves qualification. The response of the international community 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 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).
6. 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).
7. 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).
8. 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;
9. 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;
10. 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;
11. 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;
12. Daniela Horvath, The Children of the Rapes: Young Victims of 'Ethnic Cleansing,' WORLD PRESS REV., June 1993, at 11.
13. 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.
14. 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.
15. See ARYEH NEIER, WAR CRIMES: BRUTALITY, GENOCIDE, TERROR AND THE STRUGGLE FOR JUSTICE (1998).
16. See generally Niarchos, supra note 2. On 22 Feb. 1993, the UN Security Council, acting under Chapter VII of the United Nations Charter, decided to establish the Tribunal. Its rules of procedure and evidence entered into force on 14 Mar. 1994 and have been amended three times - on 5 May 1994, 4 Oct. 1994, and 30 Jan. 1995. International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991: Rules of Procedure and Evidence, U.N. Doc. IT/32 (1994),
17. reprinted in 33 I.L.M. 484 (1994), amendments in 33 I.L.M. 838 (1994) & 33 I.L.M. 1619 (1994).
18. See generally 5 HASTINGS WOMEN'S L.J., Summer 1994.
19. See Aryeh Neier, Watching Rights: Rapes in Bosnia-Herzegovina, THE NATION, 1 Mar. 1993, at 259.
20. Aryeh Neier, who has written articles and a book on human rights abuses in Bosnia, argues that these numbers are unsubstantiated and likely inflated and claims that the European Community does not explain in its report how it arrived at the number. See id.; NEIER, supra note 8; Laurel Fletcher, Rape as a Weapon of War in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 69, 77 (1994).
21. NEIER, supra note 8, at 176.
22. Id. at 178. On the impact of the rapes on Western feminism and feminist influence in challenging the treatment of war-rape based on these accounts, see Cynthia Enloe, Have the Bosnian Rapes Opened a New Era of Feminist Consciousness?, in MASS RAPE, supra note 4, at 219.
23. See Niarchos, supra note 2, at 660. The Trojan War, described in the Iliad, demonstrated that women could expect rape and enslavement from warfare. The Old Testament reported that Hebrew tribes invading Canaan seized the following spoils of war, in this order, "sheep, cattle, asses, and thirty-two thousand girls who had had no intercourse with a man." The Book of Deuteronomy sanctioned the seizure of women as legitimate booty, although captors were obliged after a period of mourning to marry their stolen treasures. Hugo Grotius, writing in the seventeenth century, described classical admonitions to respect the "chastity of the women and girls," as well as frequent violations of those admonitions; although Grotius frowned upon rape during warfare, he apparently found the practice of seizing women for purposes of marriage more acceptable. Id. (footnotes omitted).
24. See Theodor Meron, Rape as a Crime Under International Humanitarian Law, 87 AM J. INT'L L. 424, 425 (1993).
25. THEODOR MERON, HENRY'S WARS AND SHAKESPEARE'S LAWS: PERSPECTIVES ON THE LAW OF WAR IN THE LATER MIDDLE AGES 111 (1993).
26. Francis Lieber, Instructions for the Government of Armies of the United States in the Field, promulgated as U.S. War Dept., Adjutant General's Office, General Orders No. 100, art. 44 (24 Apr. 1863), reprinted in 1 THE LAW OF WAR: A DOCUMENTARY HISTORV 158, 167 (Leon Friedman ed., 1972).
27. Francis Lieber, Instructions for the Government of Armies of the United States in the Field, promulgated as U.S. War Dept., Adjutant General's Office, General Orders No. 100, art. 44 (24 Apr. 1863), reprinted in 1 THE LAW OF WAR: A DOCUMENTARY HISTORV 158, 167 (Leon Friedman ed., 1972).
28. Niarchos, supra note 2, at 662.
29. See generally SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE (1975).
30. See United States v. Göring, 22 Trial of the Major War Criminals Before the International Military Tribunal 411, 475 (1948).
31. Rhonda Copelon, Surfacing Gender: Reconceptualizing Crimes Against Women in Time of War, in MASS RAPE, supra note 4, at 197, 200-01.
32. Where rape is treated as a crime against honor, the honor of women is called into question and virginity or chastity is often a precondition. . . . And while the concept of dignity potentially embraces more profound concerns, standing alone it obfuscates the fact that rape is fundamentally violence against women - violence against a woman's body, autonomy, integrity, selfhood, security, and self-esteem as well as her standing in the community. Id. at 200 (endnote omitted).
33. The State Department stated that: "In our reports to the United Nations on human rights violations in the former Yugoslavia, we have reported sexual assaults as grave breaches. We will continue to do so and will continue to press the international community to respond to the terrible sexual atrocities in the former Yugoslavia." Letter from Robert A. Bradtke, Acting Assistant Secretary for Legislative Affairs, to Senator Arlen Specter (27 Jan. 1993), reprinted in Meron, supra note 16, at 427 n.22. See also Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE L.J. 2537 (1991) (discussing the interpretation of the Nuremberg Charter in Control Council Law No. 10 to include rape). See generally Deborah Blatt, Recognizing Rape as a Method of Torture, 19 N.Y.U. REV. L. & Soc. CHANGE 821 (1992).
34. The State Department stated that: "In our reports to the United Nations on human rights violations in the former Yugoslavia, we have reported sexual assaults as grave breaches. We will continue to do so and will continue to press the international community to respond to the terrible sexual atrocities in the former Yugoslavia." Letter from Robert A. Bradtke, Acting Assistant Secretary for Legislative Affairs, to Senator Arlen Specter (27 Jan. 1993), reprinted in Meron, supra note 16, at 427 n.22. See also Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE L.J. 2537 (1991) (discussing the interpretation of the Nuremberg Charter in Control Council Law No. 10 to include rape). See generally Deborah Blatt, Recognizing Rape as a Method of Torture, 19 N.Y.U. REV. L. & Soc. CHANGE 821 (1992).
35. See generally Niarchos, supra note 2; Green et al., supra note 4.
36. See Niarchos, supra note 2, at 678, 681-82; Green et al., supra note 4, at 186-89.
37. See Niarchos, supra note 2, at 658, 682; Green et al., supra note 4, at 188.
38. Article 6(c) of the Nuremberg Charter defined crimes against humanity as murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, signed 8 Aug. 1945, Charter of the International Military Tribunal, art. 6(c), 59 Stat. 1546, 1547, 82 U.N.T.S. 284, 288 [hereinafter Nuremberg Charter].
39. Koenig, supra note 4, at 132.
40. See Copelon, supra note 22, at 204; Koenig, supra note 4, at 137; Green et al., supra note 4.
41. See Niarchos, supra note 2, at 679 ("[I]t now would be insensible to fail to recognize rape, in war or in peace, as an extreme form of gender discrimination. . . . Either by amendment to the current conventions or by declaration, IHL [international humanitarian law] should be revised to reflect this concept."). See also Copelon, supra note 22, at 207 (stating that "[t]he expansion of the concept of crimes against humanity to include gender is thus part of the broader movement to end the historical invisibility of gender violence as a humanitarian and human rights violation."). Both Niarchos and Copelon note that this lacunae is analogous to a similar problem in asylum law, which does not recognize gender as a source of persecution. Copelon supra note 22, at 207; Niarchos supra note 2, at 679 n.184.
42. See Copelon, supra note 22, at 203 (discussing the different implications of treating rape as either a war crime or a crime against humanity).
43. Grave breaches of the Geneva Conventions of 1949 include: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the right of fair and regular trial. . . , taking of hostages and extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly. Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, art. 147, 12 Aug. 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, (entered into force 21 Oct. 1950) (entered into force for U.S. 2 Feb. 1956) [hereinafter Fourth Geneva Convention].
44. Niarchos, supra note 2, at 678.
45. See Green et al., supra note 4, at 58, 186-87.
46. See Copelon, supra note 22, at 201; Green et al., supra note 4, at 186; Koenig, supra note 4, at 138.
47. Koenig, supra note 4, at 138.
48. Vera Folnegovic-Smalc, Psychiatric Aspects of the Rapes in the War Against the Republics of Croatia and Bosnia-Herzegovina, in MASS RAPE, supra note 4, at 174, 177.
49. Copelon, supra note 22, at 203.
50. See id. at 207 ("Forced impregnation expresses the desire to mark the rape and rapist upon the woman's body and upon the woman's life."). See also Rachel N. Pine, Pregnancy as Evidence of Crime, 16 NAT'L L.J., 24 Jan. 1994, at 15.
51. ANNE TIERNEY GOLDSTEIN, CTR. FOR REPROD. LAW & POLICY, RECOGNIZING FORCED IMPREGNATION AS A WAR CRIME UNDER INTERNATIONAL LAW: A SPECIAL REPORT OF THE INTERNATIONAL PROGRAM 14-15 (1993). Additionally, Beverly Allen argues that women forcibly impregnated are victims of a crime against humanity on a basis more specific than gender, because "being a female is a necessary . . . but insufficient condition for receiving this kind of treatment. Genocidal rape . . . aimed at enforced reproduction, demands that its victims be capable of gestating a pregnancy." ALLEN, supra note 4, at 121.
52. This is not to understate the significance of explicitly addressing rape. As noted, even when rape has been addressed previously in international humanitarian law, it has usually been treated as peripheral to other crimes.
53. See Susan Brownmiller, Making Female Bodies the Battlefield, in MASS RAPE, supra note 4, at 180. Brownmiller points out that, in fact, every historical instance of well-publicized mass rape has been described by commentators as "unprecedented." Id. For a concise historical summary of instances and explanations of war-rape, see Ruth Seifert, War and Rape: A Preliminary Analysis, in MASS RAPE, supra note 4, at 54.
54. See Susan Brownmiller, Making Female Bodies the Battlefield, in MASS RAPE, supra note 4, at 180. Brownmiller points out that, in fact, every historical instance of well-publicized mass rape has been described by commentators as "unprecedented." Id. For a concise historical summary of instances and explanations of war-rape, see Ruth Seifert, War and Rape: A Preliminary Analysis, in MASS RAPE, supra note 4, at 54.
55. Catharine A. MacKinnon, Rape, Genocide, and Women's Human Rights, in MASS RAPE, supra note 4, at 183, 189-90.
56. See Enloe, supra note 14, at 220. The rhetorical need to assert that a particular act is somehow new or unprecedented in order to justify human rights legislation is an interesting theme elsewhere in this literature. Beverly Allen makes this point in regards to forced impregnation, again in her response to Brownmiller: "there may be 'nothing unprecedented about mass rape in war', but this [forced impregnation] is something new." ALLEN, supra note 4, at 91. Allen is wrong, however. Forced impregnation has been used repeatedly throughout history, both as a tool of genocide (for example, in Bangladesh in 1971 (see BROWNMILLER, supra note 20, at 78-80), and for other purposes, such as against German women in Nazi Germany and in the American South during slavery. See generally CLAUDIA KOONZ, MOTHERS IN THE FATHERLAND: WOMEN, THE FAMILY AND NAZI POLITICS (1987); Wing & Merchán, infra note 81. Treating forced impregnation in Bosnia as unique particularly serves to marginalize the genocidal rapes occurring practically simultaneously in Rwanda. See Sullivan & Hammer, supra note 5, at 49-50 (discussing Rwanda).
57. Copelon, supra note 22, at 205.
58. See id. at 207.
59. Id. at 198 (emphasis added).
60. The legal definition of genocide is any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. Convention on the Prevention and Punishment of the Crime of Genocide, art. 2, adopted 9 Dec. 1948, 78 U.N.T.S. 277 (entered into force 12 Jan. 1951) (entered into force for U.S. 23 Feb. 1989) [hereinafter Genocide Convention].
61. BROWNMILLER, supra note 20, at 38.
62. Seifert, supra note 42, at 62.
63. Genocide Convention, supra note 48, art. 2.
64. See NORMAN CIGAR, GENOCIDE IN BOSNIA: THE POLICY OF "ETHNIC CLEANSING" 59-60 (1995). See also Thomas Cushman & Stjepan G. Mestrovic, Introduction to THIS TIME WE KNEW: WESTERN RESPONSES TO GENOCIDE IN BOSNIA 1, 13-20 (Thomas Cushman & Stjepan G. Mestrovic eds., 1996).
65. See NORMAN CIGAR, GENOCIDE IN BOSNIA: THE POLICY OF "ETHNIC CLEANSING" 59-60 (1995). See also Thomas Cushman & Stjepan G. Mestrovic, Introduction to THIS TIME WE KNEW: WESTERN RESPONSES TO GENOCIDE IN BOSNIA 1, 13-20 (Thomas Cushman & Stjepan G. Mestrovic eds., 1996).
66. Alexandra Stiglmayer, The Rapes in Bosnia-Herzegovina, in MASS RAPE, supra note 4, at 82, 85.
67. Report of the Team of Experts on Their Mission to Investigate Allegations of Rape in the Territory of the Former Yugoslavia from 12 to 23 January 1993, U.N. GAOR, 48th Sess., Annex II, ¶ 62, U.N. Doc. A/48/92-S/25341 (1993) [hereinafter Expert Report].
68. MacKinnon, supra note 43, at 187.
69. Id. at 188.
70. Id. at 191.
71. Allen describes three different "types" of rape in Bosnia: 1) public rape of women, children, and men in front of members of a community, 2) abduction, rape, and murder of women, and 3) detention and repeated rape with the intent to impregnate, then detention until abortions were impossible. ALLEN, supra note 4, at 62-63. See also Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), U.N. SCOR, U.N. Doc S/1994/674 (1994) (describing distinct patterns of rape in Bosnia).
72. Mass rape deals a significant blow to a victimized cultural entity by breaking up families, robbing raped women of access to marriage and reproduction in the future, condemning them to refugee life, and otherwise intimidating the community into fleeing. In a strongly patriarchal society, rape alone is powerful enough to interfere with the reproduction of the group because it marks the rape victims as unmarriageable.
73. ALLEN, supra note 4, at 91 (stating that "the pregnancies, and not the rapes alone, are a major weapon of the genocide") (emphasis in original).
74. NEIER, supra note 8, at 186. See also Siobhan Fisher, Occupation of the Womb: Forced Impregnation as Genocide, 46 DUKE L.J. 91, 125 (1996).
75. Copelon, supra note 22, at 203.
76. Id. at 203-08.
77. GOLDSTEIN, supra note 40, at 4. For example, in her note 7, Goldstein argues that forced insemination could be used: "It is easy to imagine, for example, an army that desires to impregnate women while protecting its soldiers from the possibility of HIV infection, and which therefore resorts to artificial insemination or other modern alternative methods of fertilizing eggs." Id. at 14 n.7. Indeed, Nazi medical experiments made use of what were then high-technology means of reproductive control, as Nazi doctors experimented with surgical and nonsurgical means of sterilizing concentration camp inmates. See also Telford Taylor, Opening Statement of the Prosecution, December 9, 1946, in THE NAZI DOCTORS AND THE NUREMBERG CODE: HUMAN RIGHTS IN HUMAN EXPERIMENTATION 67, 79-81 (George J. Annas & Michael A. Grodin eds., 1992); KOONZ, supra note 44.
78. Goldstein, supra note 40, at 15 (quoting Fourth Geneva Convention, supra note 32, art. 147).
79. See Fisher, supra note 61.
80. See ALLEN, supra note 4, at 103-32.
81. GOLDSTEIN, supra note 40, at 15 ("[T]he proposed Statute for the International Tribunal, does not identify forced impregnation by name as a crime to be prosecuted (though 'enforced prostitution' and 'other forms of sexual assault' are identified in the Secretary General's Report as 'inhumane acts').").
82. Id.
83. See Fisher, supra note 61, at 100. Article 75(2) of the Protocol (I) Additional states: The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents: (a) violence to the life, health, or physical or mental well-being of persons, in particular: (i) murder; (ii) torture of all kinds, whether physical or mental; (iii) corporal punishment; and (iv) mutilation; (b) outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault; (c) the taking of hostages; (d) collective punishments; and (e) threats to commit any of the foregoing acts. Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, art. 75, ¶ 2, 1125 U.N.T.S. 3 (entered into force? Dec. 1978), reprinted in 16 I.L.M. 1391 (1977).
84. GOLDSTEIN, supra note 40, at 15.
85. See Fisher, supra note 61, at 99.
86. GOLDSTEIN, supra note 40, at 15.
87. Id. at 22.
88. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 Dec. 1984, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, art. 1, U.N. Doc. A/39/51 (1985) (entered into force 26 June 1987), reprinted in 23 I.L.M. 1027 (1984), substantive changes noted in 24 I.L.M. 535 (1985).
89. GOLDSTEIN, supra note 40, at 17. See generally id. app. A.
90. See Copelon, supra note 22, at 203.
91. See GOLDSTEIN, supra note 40, at 16.
92. Fisher, supra note 61, at 102 (quoting Nuremberg Charter, supra note 27, art. 6(c)).
93. GOLDSTEIN, supra note 40, at 15, 25.
94. See GOLDSTEIN, supra note 40, at 23 ("[I]n a culture where rape is perceived as staining its victims, making single women unmarriageable and married women subject to rejection by their husbands, like rape but to a greater degree, forced impregnation '[d]eliberately inflict[s] on the group conditions of life calculated to bring about its physical destruction.'"). Id. See also Pine, supra note 39; MacKinnon, supra note 44, at 190. Additionally, Wing and Merchán give a detailed analysis of the impact of mass rape on the Bosnian Muslim culture, although it should be noted that the rejection of raped women is a product of patriarchy in general, not merely of Muslim tradition. See Adrien Katherine Wing & Sylke Merchán, Rape, Ethnicity, and Culture: Spirit Injury from Bosnia to Black America, 25 COLUM. HUM. RTS. L. REV. 1 (1993).
95. Fisher, supra note 61, at 122-23; GOLDSTEIN, supra note 40, at 23; MacKinnon, supra note 43, at 188; Green et al., supra note 4, at 194; Koenig, supra note 4, at 137.
96. Fisher, supra note 61, at 120-21. According to Fisher, forced impregnation interferes with group reproduction in three ways: First, women may be psychologically traumatized by the pregnancy and unable to have normal sexual or childbearing experiences with members of their own group. Second, women who are raped and bear the children of the aggressors may no longer be marriageable in their society. Third, the women, simply because they are pregnant with the children of the aggressors, cannot bear their own children during this time - their wombs are "occupied." Id. at 93.
97. Green et al., supra note 4, at 194.
98. Id. See also Wing & Merchan, supra note 81, at 19-20.
99. See Genocide Convention, supra note 48, art. 2.
100. Fisher, supra note 61, at 125.
101. See Copelon, supra note 22, at 207.
102. See Neier, supra note 11, at 186 ("It is more likely that the talk of little Chetniks was a boast of their masculine triumph over their victims by claiming the potency to impregnate them."). The Serb authorities themselves have staunchly denied such allegations. For examples of Serb denials of rape, see Lance Morrow, Unspeakable (Rape in Former Yugoslavia's Civil War), TIME, 22 Feb. 1993, at 48. See also Fisher, supra note 61, at 94 (for additional sources). Fisher adds that according to her sources, "captured Serb soldiers admitted that [forced impregnation] had taken place." Id. at 94 n.12.
103. For accounts of ethnic slurs uttered by rapists and their intent to impregnate their victims with "Serbian" children, see Stiglmayer, supra note 53, at 116-17, 131-37. Forced impregnation was one allegation by victims who brought suit against Radavan Karadzic under the Alien Tort Claims Act in the United States. See Fisher, supra note 61, at 127. Moreover, evidence that raped women were given pregnancy tests and prevented from gaining access to abortions also shows that the pregnancies were intentional. See Niarchos, supra note 2, at 657. Some women were cross-examined and accused of using birth control if they did not become pregnant. See Pine, supra note 40, at 15.
104. ALLEN, supra note 4, at 87.
105. See Diana Kapidzic & Aida Daidzic, BISER: A Conversation with Bosnian Women Living in Exile, 5 HASTINGS WOMEN'S L.J. 53, 56 (1994). For an analysis of how and why Bosnian Muslims (a confessional group linked to a broader transnational Muslim community) came to be conceptualized as a distinct ethnic group, see TONE BRINGA, BEING MUSLIM THE BOSNIAN WAY: IDENTITY AND COMMUNITY IN A CENTRAL BOSNIAN VILLAGE (1995).
106. See Diana Kapidzic & Aida Daidzic, BISER: A Conversation with Bosnian Women Living in Exile, 5 HASTINGS WOMEN'S L.J. 53, 56 (1994). For an analysis of how and why Bosnian Muslims (a confessional group linked to a broader transnational Muslim community) came to be conceptualized as a distinct ethnic group, see TONE BRINGA, BEING MUSLIM THE BOSNIAN WAY: IDENTITY AND COMMUNITY IN A CENTRAL BOSNIAN VILLAGE (1995).
107. ALLEN, supra note 4, at 87.
108. See id. 95. MacKinnon, supra note 43, at 191-92.
109. Fisher, supra note 61, at 119-20.
110. The Conference agreed: "Violations of the human rights of women in situations of armed conflict are violations of the fundamental principles of international human rights and humanitarian law. All violations of this kind, including in particular murder, systematic rape, sexual slavery, and forced pregnancy, require a particularly effective response." Report of the Drafting Committee, Addendum, Final Outcome of the World Conference on Human Rights, U.N. GAOR, World Conf. on Hum. Rts., Agenda Item 13, at 23, U.N. Doc. A/CONF.157/DC/1/Add.1 (1993).
111. The International Criminal Tribunal in Arusha, Tanzania, stated that "sexual violence, which includes rape, is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact" and explicitly stated that rape and sexual violence were "integral weapons in the intended destruction of the Tutsi ethnic group." See Heather Sokoloff, A New Rape Definition Brings Justice to Survivors, Ms., Apr./May 1999, at 18.
112. Niarchos, supra note 2, at 657. All italics in this section have been added by the author unless otherwise noted.
113. See GOLDSTEIN, supra note 40, at 18.
114. See infra notes 112 and accompanying text.
115. MacKinnon, supra note 43, at 191 (emphasis added).
116. GOLDSTEIN, supra note 40, at 4.
117. Id. at 17.
118. A similar pattern is evident in most of the literature. See, e.g., Niarchos, supra note 2, at 657. Niarchos stated that women are raped frequently, perhaps numerous times each day. . . . Some captors say their intention is to impregnate the women. . . .[T]he women were examined by gynecologists. If found to be pregnant, they were segregated, given special privileges, and held until. . . it was too late to obtain an abortion; at that point, they were released. Id. (footnotes omitted) (emphasis added).
119. Though some may argue that, by distinguishing between born and unborn children, I am negating potential fetal rights to life, it is not my intent to take a side in the abortion debate here. Whether or not fetuses should or will have rights in the future, it is still important to distinguish between children who are born and those unborn because their specific rights and relationships to all parties are different in the two cases. I focus on born children because the debate over the unborn is already well underway and does not require a digression here.
120. See Sullivan & Hammer, supra note 5, at 50 (discussing Bosnia).
121. Green et al., supra note 4, at 186-87.
122. Id. at 192-93.
123. Vienna Declaration and Programme of Action, U.N. GAOR, World Conf. on Hum. Rts., 48th Sess., 22d plen. mtg., part I, U.N. Doc. A/CONF.157/24 (1993), reprinted in 32 I.L.M. 1661 (1993).
124. See Yolanda S. Wu, Genocidal Rape in Bosnia: Redress in United States Courts Under the Alien Tort Claims Act, 4 UCLA WOMEN'S L.J. 101, 107, 109 n.46 (1993).
125. On the evolution of this debate, see Fax Archives of the Catholic Family and Human Rights Institute, available at 〈http://cafhri.org/FAX/current_fax.html〉 (visited 3 Feb. 2000), especially those faxes dated 6 Apr., 19 June, 26 June, & 10 July 1998 (hereinafter Fax Archives). On the International Criminal Court generally, see 〈http://www.un.org/ icc/index.htm〉 (updated 1 Feb. 2000).
126. See Fax Archives, supra note 112.
127. See Green et al., supra note 4, at 186.
128. See GOLDSTEIN, supra note 40, at 16; Fisher, supra note 61, at 99.
129. See GOLDSTEIN, supra note 40, at 17.
130. Id. at 18-19.
131. Fisher, supra note 61, at 99.
132. See GOLDSTEIN, supra note 40, at 19-22 (for a fascinating reinterpretation of Article 27 of the Fourth Geneva Convention, which provides that "[p]rotected persons are entitled, in all circumstances, to respect for their persons, their honour, [and] their family rights. . . ." Fourth Geneva Convention, supra note 32, art. 27).
133. GOLDSTEIN, supra note 40, at 26.
134. See Kapidzic & Daidzic, supra note 92, at 67.
135. Memorandum from the International Women's Human Rights Clinic of CUNY Law School, Gender Justice and the Constitution of the War Crimes Tribunal Pursuant to Security Council Resolution 808 (n.d.), reprinted in 5 HASTINGS WOMEN'S L. J. 235, 236 (1994).
136. ALLEN, supra note 4, at 132.
137. See id.
138. Id.
139. Wing & Merchán, supra note 81, at 20 (footnote omitted).
140. It might be said that this is a false analogy precisely because the male trauma of a property offense (vis-à-vis the rape victim) is insignificant compared to the real trauma of a raped woman (vis-à-vis a child of rape). The author believes that this analogy holds, however, because there are many analyses that suggest that the trauma to a male of having a female family member raped is a very real humiliation against male pride and esteem even when situated as "merely" a property crime. See Seifert, supra note 42, at 59 (discussing the function of rape as a communication of humiliation between men). Beyond the idea of ruined property, Folnegovic-Smalc discusses emotional trauma of male family members under the broader category of "indirect victimization." Folnegovic-Smalc, supra note 37, at 177. Goldstein writes, men, too, are injured by the sexual assault of women for reasons untainted by offensive, antiquated notions of chastity and ownership. To watch helplessly as someone you love is tortured may be as bad or worse than being tortured yourself, and international law should be able to reach and punish such harms. GOLDSTEIN, supra note 40, at 22.
141. See, e.g., V. Spike Peterson, Whose Rights? A Critique of the Givens in Human Rights Discourse, 15 ALTERNATIVES: SOC. TRANSFORMATION & HUMANE GOVERNANCE 303 (1990); Nancy Kim, Toward a Feminist Theory of Human Rights: Straddling the Fence Between Western Imperialism and Uncritical Absolutism, 25 COLUM. HUM. RTS. L. REV. 49 (1993); Marysia Zalewski, 'Well, What Is the Feminist Perspective on Bosnia?,' 71 INT'L AFF. 339 (1995). On applying feminist theory to children's rights, see Anne McGillivray, Reconstructing Child Abuse: Western Definition and Non-Western Experience, in THE IDEOLOGIES OF CHILDREN'S RIGHTS 213 (Michael Freeman & Philip Veerman eds., 1992).
142. See, e.g., V. Spike Peterson, Whose Rights? A Critique of the Givens in Human Rights Discourse, 15 ALTERNATIVES: SOC. TRANSFORMATION & HUMANE GOVERNANCE 303 (1990); Nancy Kim, Toward a Feminist Theory of Human Rights: Straddling the Fence Between Western Imperialism and Uncritical Absolutism, 25 COLUM. HUM. RTS. L. REV. 49 (1993); Marysia Zalewski, 'Well, What Is the Feminist Perspective on Bosnia?,' 71 INT'L AFF. 339 (1995). On applying feminist theory to children's rights, see Anne McGillivray, Reconstructing Child Abuse: Western Definition and Non-Western Experience, in THE IDEOLOGIES OF CHILDREN'S RIGHTS 213 (Michael Freeman & Philip Veerman eds., 1992).
143. See, e.g., V. Spike Peterson, Whose Rights? A Critique of the Givens in Human Rights Discourse, 15 ALTERNATIVES: SOC. TRANSFORMATION & HUMANE GOVERNANCE 303 (1990); Nancy Kim, Toward a Feminist Theory of Human Rights: Straddling the Fence Between Western Imperialism and Uncritical Absolutism, 25 COLUM. HUM. RTS. L. REV. 49 (1993); Marysia Zalewski, 'Well, What Is the Feminist Perspective on Bosnia?,' 71 INT'L AFF. 339 (1995). On applying feminist theory to children's rights, see Anne McGillivray, Reconstructing Child Abuse: Western Definition and Non-Western Experience, in THE IDEOLOGIES OF CHILDREN'S RIGHTS 213 (Michael Freeman & Philip Veerman eds., 1992).
144. See, e.g., V. Spike Peterson, Whose Rights? A Critique of the Givens in Human Rights Discourse, 15 ALTERNATIVES: SOC. TRANSFORMATION & HUMANE GOVERNANCE 303 (1990); Nancy Kim, Toward a Feminist Theory of Human Rights: Straddling the Fence Between Western Imperialism and Uncritical Absolutism, 25 COLUM. HUM. RTS. L. REV. 49 (1993); Marysia Zalewski, 'Well, What Is the Feminist Perspective on Bosnia?,' 71 INT'L AFF. 339 (1995). On applying feminist theory to children's rights, see Anne McGillivray, Reconstructing Child Abuse: Western Definition and Non-Western Experience, in THE IDEOLOGIES OF CHILDREN'S RIGHTS 213 (Michael Freeman & Philip Veerman eds., 1992).
145. See Jean-Bethke Elshtain, Rethinking Sovereignty, in POST-REALISM: THE RHETORICAL TURN IN INTERNATIONAL RELATIONS 171 (Francis A. Beer & Robert Hariman eds., 1996).
146. GOLDSTEIN, supra note 40, at 17-18. This pattern is also indicative of news reports regarding the war-rape orphans. For example, Daniela Horvath's article titled The Children of the Rapes: Young Victims of 'Ethnic Cleansing,' supra note 5, is composed primarily of references to the mothers' psychological trauma and victimization.
147. Genocide Convention, supra note 48, art. 2.
148. MacKinnon, supra note 43, at 191.
149. GOLDSTEIN, supra note 40, at 27.
150. Green et al., supra note 4, at 194.
151. ALLEN, supra note 4, at 87.
152. Id. at 88.
153. Id. at 131.
154. Id.
155. Fisher, supra note 61, at 99.
156. Horvath, supra note 5, at 12.
157. Fisher, supra note 61, at 93.
158. GOLDSTEIN, supra note 40, at 24.
159. Wing & Merchán, supra note 81, at 20.
160. See id. at 11 n.56.
161. Id. at 18.
162. For general information on Islam and Muslims, see THE MUSLIM ALMANAC: A REFERENCE WORK ON THE HISTORY, FAITH, CULTURE AND PEOPLES OF ISLAM (Azim Nanji ed., 1996).
163. Wing and Merchán apparently believe that a Muslim community is a Muslim community, because they support their statement about Muslim culture (in reference to Bosnia) with a citation titled "Law and Religion in the Muslim Middle East." See Wing & Merchán, supra note 81, at 18. It is surprising to me that they instead did not refer to ethnographic studies of the Bosnian Muslims in particular, such as Tone Bringa's Being Muslim the Bosnian Way. BRINGA, supra note 92. This suggests a misunderstanding of the nature of Muslim collective identity and the tension between a transnational "Islamic" community and particularistic, local Muslim communities.
164. Some less stereotypical interpretations of Islamic doctrine, written by actual Muslim scholars, can be found in LIBERAL ISLAM: A SOURCEBOOK (Charles Kurzman ed., 1998).
165. According to Bringa, there are in fact layered and contradictory identities among the Bosnian Muslims, which manifest themselves in official discourse as well as in rural life. The linguistic confusion comes from translating Serbo-Croat terms for both religious and ethnic identity (muslimani and Muslimani respectively) into the same interchangeable English term, "Bosnian Muslim." See BRINGA, supra note 92, at 10.
166. See, e.g., Fisher, supra note 61; ALLEN, supra note 4; GOLDSTEIN, supra note 40, at 22-24.
167. See Fisher, supra note 61, at 121 (quoting Genocide Convention, supra note 48, art. 2; GOLDSTEIN, supra note 40, at 23-24.
168. GOLDSTEIN, supra note 40, at 24.
169. See Green et al., supra note 4, at 194.
170. Wing & Merchán, supra note 81, at 19.
171. In fact not all of the children were abandoned by their mothers or the Muslim community, though certainly the majority were. The focus of feminist writing is on the ideal-type raped woman who hates her child, not on those who choose to raise their children. This is in keeping with the mainstream (and statistically inaccurate) notion in Western abortion-rights discourse that a raped woman never wants to raise her child. On abortion discourse, see CELESTE-MICHELLE CONDIT, DECODING ABORTION RHETORIC (1990); JAMES D. HUNTER, BEFORE THE SHOOTING BEGINS: SEARCHING FOR DEMOCRACY IN AMERICA'S CULTURE WARS (1994). On abortion preference among raped women, see Sandra Makhorn, Pregnancy and Sexual Assault, in THE PSYCHOLOGICAL ASPECTS OF ABORTION 55 (David Mall & Walter Watts eds., 1979).
172. ALLEN, supra note 4, at 99.
173. For a detailed analysis of the evolving meaning and importance attached to these terms, see BRINGA, supra note 92, at 32-35.
174. See ALLEN, supra note 4, at 91. See also Silva Meznaric, Gender as an Ethno-Marker: Rape, War, and Identity Politics in the Former Yugoslavia, in IDENTITY POLITICS & WOMEN: CULTURAL REASSERTIONS AND FEMINISMS IN INTERNATIONAL PERSPECTIVE 76 (Valentine M. Moghadam ed., 1994).
175. Forced impregnation as a tool of genocide is not unprecedented. As recently as 1971, thousands of outcast children were born as a result of genocidal rapes of Bengali women by the West Pakistani army. See BROWNMILLER, supra note 20, at 79-83. The case of these children may have been more dismal than in Bosnia because, due to the greater racial stratification between the victimized and perpetrator groups, the children were visibly, as well as socially, marked for exclusion. Forced impregnation was also used in the American South to breed slave children and lighten the African race. See Wing & Merchán, supra note 81, at 25-38. Defoe's poem, quoted at the beginning of this paper, captures the use of forced impregnation in the development of an early British national identity. See also GOLDSTEIN, supra note 40, at 21 (discussing British use of rape to break the Scottish clan system). Stating that forced impregnation in Bosnia is unprecedented is especially odd because genocide was happening simultaneously in Rwanda and has produced several thousand children of genocidal rape. See James C. McKinley, Jr., Legacy of Rwanda Violence: The Thousands Born of Rape, N.Y. TIMES, 23 Sept. 1996, at A1.
176. For example, the breakup of Czechoslovakia left 1,200 Slovak babies living in Czech institutions systematically neglected and discriminated against, with no claims on citizenship rights. See Timea Spitkova, Slovakia Is Accused of Handpicking the 'White' Children for Repatriation, PRAGUE POST, 18 Apr. 1995 at 1.
177. Much attention was given to the Bengali rapes, for example, but the author has been unable to find any studies tracking the fate or well-being of the children born of those rapes.
178. It is interesting to note that the idea of "forced impregnation" as a crime distinct from rape has never been applied in any domestic context. For example, whereas a woman can prosecute her attacker for rape in the United States, there is no additional redress if she is impregnated as a result. Judging from the framing of forced impregnation discourse in international law, we may assume that were there such a legal mechanism, the redress would be for the woman and not framed in terms of the child's rights (financial support, for example, would be mitigated by the rapist father's imprisonment, unless the state were to provide a stipend). An entire debate can be imagined regarding whether forced impregnation can result in forced maternity even where pregnancy is not enforced by the state. The ramifications for "forced impregnation" discourse go beyond genocidal rape, and, taken to the level of children's rights, it may involve - in a domestic context - changes in the civil and criminal law and in cultural attitudes toward children of rape victims.
179. See, e.g., MARNIA LAZREG, THE ELOQUENCE OF SILENCE 178 (1994).
180. See Karen Parker & Jennifer F. Chew, Compensation for Japan's World War II War-Rape Victims, 17 HASTINGS INT'L & COMP. L. REV. 497 (1994).
181. GOLDSTEIN, supra note 40, at 4. Indeed, Nazi medical experiments made use of what were then high technology means of reproductive control, as Nazi doctors experimented with surgical and nonsurgical means of sterilizing concentration camp inmates. See Taylor, supra note 64, at 79-81.
182. Neier, supra note 11, at 182.
183. GOLDSTEIN, supra note 40, at 4.
184. Copelon, supra note 22, at 207.
185. I am not necessarily making the argument here that enforced pregnancy is or is not a violation of anyone's human rights. What I have done here is given an analytical label to a specific concept that has not, until now, been clearly distinguished from forced impregnation but has very different implications in terms of human rights law.
186. See Wing & Merchán, supra note 81, at 20.
187. See Jeffrey R. Botkin & Maxwell J. Mehlman, Wrongful Birth: Medical, Legal, and Philosophical Issues, 22 J.L., MED. & ETHICS 21 (1994) (discussing the implications of the wrongful birth concept).
188. As noted above, this conceptualization will certainly be contested by advocates of rights for unborn children. I have chosen not to broaden the scope of this definition to the unborn because fetal rights are still contested in international law, whereas the right to life for born children is not. I make no moral claims on whether or not this should change in the future; if it did, one might logically argue (hat the term "conception by forced impregnation" be substituted for "birth-by-forced-maternity."
189. See, e.g., Convention on the Rights of the Child, adopted 20 Nov. 1989, G.A. Res. 44/ 25, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/49 (1989) (entered into force 2 Sept. 1990), reprinted in 28 I.L.M. 1448 (1989) [hereinafter CRC].
190. See Expert Report, supra note 54, at 64.
191. See Fisher, supra note 61, at 112 n.117. Dr. Veseljko Grizelj, director of the Petrova Hospital in Zagreb, knew of five women pregnant consequent to rape who had been treated at his hospital. . . . Dr. Miomir Krstic, director of the family planning and childbirth division of the GAK Clinical Center in Belgrade, stated he knew of four women pregnant consequent to rape in Bosnia. Id.
192. Horvath, supra note 5, at 11.
193. See Expert Report, supra note 54, ¶ 30.
194. Slavenka Drakulic, Women Hide Behind A Wall of Silence, THE NATION, 1 Mar. 1993, at 270.
195. Williams, supra note 5, at 1.
196. By the time of their birth, the children were scattered over the boundaries of several states. Many pregnant refugees apparently escaped to Croatia and gave birth in Zagreb. Other children were likely born in Bosnia. An interviewee quoted by Stiglmayer claimed that many pregnant women were taken by their captors to Serbia to give birth. See Stiglmayer, supra note 53, at 119. See also Eggerston, supra note 5, at 22. Others were relocated to Germany. See Jordan, supra note 5, at 20A.
197. "I will strangle it with my own hands," a woman is quoted as saying in Drakulic, supra note 178, at 270. Other (unverified) rumors of infanticide are found throughout the literature. See, e.g., Niarchos, supra note 2, at 659; Horvath, supra note 5, at 11-12.
198. See Horvath, supra note 5, at 12.
199. See, e.g., Stiglmayer, supra note 53, at 137. Uniform loathing for the children by their mothers is mentioned in nearly every news article regarding the babies. For example, "We had to put blindfolds on [the women] for the deliveries," said Dr. Asim Kurjak at Zagreb's Holy Spirit Hospital. Williams, supra note 5, at 1.
200. "Many women want to abort their children or give them up because their families threaten them: don't bring home any chetnik babies, or there won't be any place for you here, either." Horvath, supra note 5, at 12. One woman was quoted as stating, "Where I come from, everybody . . . would think of the kid as filth." Stiglmayer, supra note 53, at 137.
201. See generally Sullivan & Hammer, supra note 5.
202. Williams, supra note 5, at 1.
203. See Margaret Ralph, Realizing the Educational Rights of Institutionalized Romanian Children, in CHILDREN IN OUR CHARGE: THE CHILD'S RIGHT TO RESOURCES 112 (Mary John ed., 1996).
204. A number of aid groups are mentioned in news reports, including Defense for Children International, Human Relief International, and the Egyptian Aid Agency. It is impossible to assess their impact in proportion to the need without knowing what percent of war-rape orphans they were able to account for.
205. See Jordan, supra note 5, at 20A.
206. See Sullivan & Hammer, supra note 5, at 50 (discussing Bosnia).
207. See Williams, supra note 5, at 1.
208. See generally Elliott, supra note 6; Sullivan & Hammer, supra note 5.
209. The author located two references to women who, with the support of their husbands, had decided to keep the children. See Carol Williams, Keeping a Baby Born of Violence, L.A. TIMES, Oct. 24, 1993, at A1; ALLEN, supra note 4, at 107. It is possible that many women did this, but if so, their experiences were not generally noted in Western descriptions of "forced impregnation."
210. See generally Williams, supra note 193.
211. See generally Jordan, supra note 5; Eggertson, supra note 5.
212. See Sullivan & Hammer, supra note 5, at 50 (discussing Bosnia).
213. See CRC, supra note 173, arts. 7, 29.
214. On children's rights in international law, see generally Hans-Joachim Heintze, The U.N. Convention and the Network of International Human Rights Protection by the United Nations, in THE IDEOLOGIES OF CHILDREN'S RIGHTS, supra note 128, at 71.
215. On implementation of the CRC in other countries, see THE BEST INTERESTS OF THE CHILD: RECONCILING CULTURE AND HUMAN RIGHTS (Philip Alston ed., 1994).
216. LAWRENCE J. LEBLANC, THE CONVENTION ON THE RIGHTS OF THE CHILD: UNITED NATIONS LAWMAKING ON HUMAN RIGHTS (1995).
217. CRC, supra note 173, art. 6(2). See LEBLANC, supra note 200, at 78-81.
218. A similar argument is made, regarding the child's "right not to be in care." MICHAEL FREEMAN, THE RIGHTS AND WRONGS OF CHILDREN 150 (1985).
219. See LEBLANC, supra note 200, at 157.
220. Id. at 94.
221. Id.
222. See generally Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III), U.N. GAOR, 3d Sess., Resolutions, pt. 1, at 71, U.N. Doc. A/810 (1948), reprinted in 43 AM. J. INT'L L. 127 (Supp. 1949); International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976); International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/ 6316 (1966), 993 U.N.T.S. 3 (entered into force 3 Jan. 1976).
223. CRC, supra note 173, art. 2(1).
224. LEBLANC, supra note 200, at 97. According to LeBlanc, this is a significant step: Children have often become victims of serious human rights violations, including arbitrary imprisonment and even torture, because of actions that their parents or family members have engaged in or have been accused of engaging in. Article 2(2) was designed to provide an additional, and very important, measure of protection to children who might find themselves in such circumstances. Id. 209. Declaration on the Rights of the Child, adopted 20 Nov. 1959, G.A. Res. 1386 (XIV), U.N. GAOR, 14th Sess., 841st plen. mtg., Supp. No. 16, at 19, U.N. Doc. A/4354 (1959).
225. It is probably not a "fact" that the children were uniformly discriminated against by all Bosjnaks; this assumption is based on indirect reports and requires empirical study.
226. See Ruth Gledhill, Muslims Give Adoption Warning; Bosnian Orphans, TIMES (London), 5 Jan. 1993, available in 1993 WL 10547320.
227. See Eggerston, supra note 5, at 22.
228. See CRC, supra note 173, art. 7(1).
229. See ED VULLIAMY, SEASONS IN HELL: UNDERSTANDING BOSNIA'S WAR 41 (1994).
230. On the tension between civic (related to citizenship) and primordial (ethnic) ideas of nationality, see Craig Calhoun, Nationalism and Ethnicity, in 19 ANN. REV. SOCIOLOGY 29 (1993).
231. Bringa argues, however, that the ethnic conflict has further entrenched ethnic particularism, even among Bosnjaks for whom a sense of blood-based identity was weakest before the conflict. See BRINGA, supra note 92, at 36.
232. If so, important implications exist for intercountry adoption in general.
233. On the distinction, see LEBLANC, supra note 200, at 108.
234. This conceptualization focuses on the loss to the child of identity rather than the loss to the group of the child, the latter argument being problematic when it is unclear whether the child was even considered to be a member of the group. It may help to think of it as forcible removal of the group from the child. 220. Examples of groups or "nations" rejecting children to define themselves abound. The case of the Slovak babies trapped in Czech orphanages is an example. See Spitkova, supra note 160. More famously, ancient Spartans had a practice of leaving newborn male infants considered unwarriorlike in appearance exposed to the elements, thus reproducing the martial identity of the nation. See CHARLES KEGLEY & GREGORY RAYMOND, How NATIONS MAKE PEACE 52 (1999). On sacrificial aspects of nationhood from a feminist perspective, see JEAN BETHKE ELSHTAIN, REAL POLITICS: AT THE CENTER OF EVERYDAY LIFE 126 (1997).
235. This pattern was not necessarily uniform. As Allen points out, the Bosnjak communities may not get the chance to reject certain victims because the communities themselves no longer exist. Reports of certain Bosnjak families adopting war-rape orphans or supporting the rape victims and their children also suggest that the pattern of rejection was not absolute. See ALLEN, supra note 4, at 100.
236. See Genocide Convention, supra note 48, at art. 2(e).
237. The legal definition of genocide is under continual contestation. For an interesting discussion of the implications stemming from the legal definition, see FRANK CHALK & KURT JONASSOHN, THE HISTORY AND SOCIOLOGY OF GENOCIDE (1990).