Sins of the Fathers: War Rape, Wrongful Procreation, and Children's Human Rights

Abstract

This essay considers the contentious and practically important question of whether children born of war rape and forced impregnation can and should be conceived as having their human rights violated by their rapist-fathers. It takes up both conceptual issues and pragmatic considerations related to this important question. I argue that the conceptual obstacles to talking about rapist-fathers violating the human rights of their children can be overcome and that we can usefully conceive the wrong done by them as wrongful procreation, a violation of a child's right to enjoy rights. Moreover, I argue that recognizing these rights and wrongs is urgently necessary and can have a positive practical effect on the lives of war-rape children.

Michael Goodhart is an Assistant Professor of Political Science at the University of Pittsburgh, where he holds a secondary appointment inWomen's Studies. His research focuses on the theory and practice of democracy and human rights, especially in the context of globalization. His first book, Democracy as Human Rights: Freedom and Equality in the Age of Globalization, appeared in 2005.

I amgrateful to Brooke Ackerly, Charli Carpenter, and PatriciaWeitsman for their comments on an earlier draft of this essay, as well as to Rich Hiskes and an anonymous referee for their insightful suggestions. Iwould also like to thank Eunice Apio, Giulia Baldi, Charli Carpenter, Joana Daniel, Bina D'Costa, Debra DeLaet, Susan Harris-Rimmer, Siobhan McEvoy-Levy, and Patricia Weitsman for their permission to cite unpublished manuscripts (many of which will appear in a forthcoming volume edited by Carpenter). This essay would not have been possible without their generous cooperation.

Notes

1. These puzzles, though related, are distinct: the first concerns whether a procreative act can be considered a wrong against the person created, while the second has specifically to do with the rights of future persons.

2. Gaylor, Powell, Rozario, Smith, all reproduced in Grieg 2001; also Daniel 2005; Harris-Rimmer 2005.

3. In other cases states seek to exploit the children (and their mothers) for propaganda purposes, as was the case in East Pakistan/Bangladesh after the 1971 war; see D'Costa 2003.

4. In the final section I shall consider the responsibility of the child's birth community in violating its rights as well as raise related questions about group rights.

5. As Carpenter shows, this is why the genocidal rape framework is inadequate for making sense of the children's experience.

6. Specifically, Kavka (1981: 101ff.) argues, they misuse their reproductive powers in creating a child sure to have a restricted life, violating a modified form of the second formulation of Kant's categorical imperative.

7. But see Schwartz 1978 for an earlier and essentially similar treatment.

8. I am not convinced that “life,” whatever that might mean, begins at conception, any more than I am convinced that it, or one's possession of rights, begins at birth. I simply wish to avoid such questions here, as answering them is not necessary to developing the arguments I want to advance. Of course, answering them does bear on whether one considers abortion a morally appropriate option in the case of forced impregnation, but I shall leave that problem aside.

9. The contrast is suggested by Warren 1978, though I depart somewhat from her usage.

10. To be clear, they are actual future persons because the setting of the bomb has no impact or bearing on their coming into existence. This distinction, while perhaps perplexing, becomes important in addressing the nonidentity problem, to which I return below.

11. Discussions of the Risky Policy always begin with some unspecified “chance” of a future catastrophe but the analysis always entails that the catastrophe in fact happens. That we cannot know in the present whether the risk will turn into a reality has always seemed to me a relevant factor in weighing the morality of the choice for the Risky Policy. There seems to be a clear and important difference between cases in which risks might or might not materialize in the more distant future and cases in which the harmful result of the action is direct and nearly certain.

12. Numerous critics vigorously reject this notion of rights-waiving, correctly asserting that it misses what rights are; see, e.g., Smolkin 1999: 201; Steinbock and McClamrock 1994: 6; cf. Baier 1984.

13. Perhaps something like the idea of double effect familiar to just war theorists could be invoked in thinking about such cases, though I am uncertain about this and cannot explore it further here; see Walzer 1977: 152–159.

14. An earlier draft of this essay discussed a right to have rights; I am grateful to an anonymous referee for raising the circularity objection in connection with that insufficiently precise formulation.

15. I am indebted to Patricia Weitsman for her critical remarks on this point.

16. I am grateful to Charli Carpenter for making this point clear to me.

17. It is also broad enough to cover such imaginable future wrongs as cloning children as sources for donor organs or cloning a class of sub- or part-human laborers.

18. Clearly wrongful procreation has a strong affinity with the other crimes against humanity defined in Article 7 of the Rome Statute, which defines them as acts “… committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender…; enforced disappearance of persons; the crime of apartheid; other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”