Table of contents:
5. The perpetrator imposed certain measures upon one or more persons.
P.1. Evidence that the perpetrator imposed measures to prevent reproduction.
P.1.1. Evidence of sterilisation and castration.
P.1.2. Evidence of curtailment of marriages.
P.1.3. Evidence of the separation of men and women.
P.1.4. Evidence that the perpetrator issued instructions forbidding births.
P.1.5. Evidence that the perpetrator issued instructions for the interruption of pregnancy.
P.1.6. Evidence of forced birth control.
P.1.7. Evidence of sexual mutilation.
P.2. Evidence of rape as a measure designed to prevent births within the group.
P.2.1. Evidence of rape with deliberate intent of perpetrator to impregnate victim.
P.3. Not required: evidence that the measures intended to prevent births actually achieved that aim.
Element:
5. The perpetrator imposed certain measures upon one or more persons.
A. Evidentiary comment:
According to the ICTR, "measures intended to prevent births within the group may be physical, but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate." (Akayesu Trial Judgment, para. 508) This view was reiterated in the Rutaganda Trial Judgment.
P.1. Evidence that the perpetrator imposed measures to prevent reproduction.
P.1.1. Evidence of sterilisation and castration.
A. Legal source/authority and evidence:
Prosecutor v. Georges Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, paras. 48, 53:
"48. The Chamber adheres to the definition of the crime of genocide as it was defined in the Akayesu Judgment."
"53. For the purposes of interpreting Article 2(2)(d) of the Statute, the Chamber holds that the words "measures intended to prevent births within the group" should be construed as including sexual mutilation, enforced sterilization, forced birth control, forced separation of males and females, and prohibition of marriages. The Chamber notes that measures intended to prevent births within the group may be not only physical, but also mental."
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 507-508:
"Imposing measures intended to prevent births within the group (paragraph d):
507. For purposes of interpreting Article 2(2)(d) of the Statute, the Chamber holds that the measures intended to prevent births within the group, should be construed as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages. In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group.
508. Furthermore, the Chamber notes that measures intended to prevent births within the group may be physical, but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate."
Poland v. Hoess (Trial of Obersturmbannführer Rudolf Franz Ferdinand Hoess), (1948) 7 LRTWC 11 (Supreme National Tribunal of Poland), pp. 24- 25:
"4. GENOCIDE
[ ]
[P]aramount importance should be attached to the political aspect of the crime. [ ] They were obviously devised at finding the most appropriate means with which to lower or destroy the reproductive power of the Jews, Poles, Czechs and other non-German nations which were considered by the Nazi as standing in the way of the fulfilment of German plans of world domination.[ ]
[ ]
The defendant Hoess declared that the experiments of wholesale castration and sterilization were carried out in accordance with Himmlers plans and orders. These aimed at the biological destruction of the Slav nations in such a way that outside appearance of natural extinction would have been preserved."
[B. Evidentiary comment:]
P.1.2. Evidence of curtailment of marriages.
A. Legal source/authority and evidence:
Prosecutor v. Georges Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, paras. 48, 53:
"48. The Chamber adheres to the definition of the crime of genocide as it was defined in the Akayesu Judgment."
"53. For the purposes of interpreting Article 2(2)(d) of the Statute, the Chamber holds that the words "measures intended to prevent births within the group" should be construed as including sexual mutilation, enforced sterilization, forced birth control, forced separation of males and females, and prohibition of marriages. The Chamber notes that measures intended to prevent births within the group may be not only physical, but also mental."
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 507-508:
"Imposing measures intended to prevent births within the group (paragraph d):
507. For purposes of interpreting Article 2(2)(d) of the Statute, the Chamber holds that the measures intended to prevent births within the group, should be construed as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages. In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group.
508. Furthermore, the Chamber notes that measures intended to prevent births within the group may be physical, but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate."
United States v. Ulrich Greifelt et al., (1948) 13 LRTWC 1 (United States Military Tribunal), p. 17, p.28:
" [ ]
(vii) Impeding the Reproduction of Enemy Nationals
Measures, concerning mainly inhabitants of Poland, were taken to prevent their reproduction and thus contribute to the destruction of non-German races. They took the form of various decrees, and were chiefly aimed at drastically curtailing marriages."
"The defendant Ulrich Greifelt, as chief of the Main Staff Office and deputy to Himmler, was with the exception of Himmler, the main driving force in the entire Germanisation program. By an abundance of evidence it is established beyond a reasonable doubt [ ] that the defendant Greifelt is criminally responsible for [ ] hampering the reproduction of enemy nationals."
Nehemiah Robinson, The Genocide Convention - A Commentary (1960), p. 64:
"The measure imposed need not be the classic action of sterilization; separation of the sexes, prohibition of marriages and the like are measures equally restrictive and produce the same results."
[B. Evidentiary comment:]
P.1.3. Evidence of the separation of men and women.
A. Legal source/authority and evidence:
Prosecutor v. Georges Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, paras. 48, 53:
"48. The Chamber adheres to the definition of the crime of genocide as it was defined in the Akayesu Judgment."
"53. For the purposes of interpreting Article 2(2)(d) of the Statute, the Chamber holds that the words "measures intended to prevent births within the group" should be construed as including sexual mutilation, enforced sterilization, forced birth control, forced separation of males and females, and prohibition of marriages. The Chamber notes that measures intended to prevent births within the group may be not only physical, but also mental."
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 507-508:
"Imposing measures intended to prevent births within the group (paragraph d):
507. For purposes of interpreting Article 2(2)(d) of the Statute, the Chamber holds that the measures intended to prevent births within the group, should be construed as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages. In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group.
508. Furthermore, the Chamber notes that measures intended to prevent births within the group may be physical, but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate."
Nehemiah Robinson, The Genocide Convention - A Commentary (1960), p. 64:
"The measure imposed need not be the classic action of sterilization; separation of the sexes, prohibition of marriages and the like are measures equally restrictive and produce the same results."
[B. Evidentiary comment:]
P.1.4. Evidence that the perpetrator issued instructions forbidding births.
A. Legal source/authority and evidence:
Attorney-General of Israel v. Adolf Eichmann, Judgement (District Court of Jerusalem) (1968) 36 ILR 5, para. 244:
"244. [ ]
We convict the accused pursuant to the fourth Count of a crime against the Jewish people, an offence under Section I (a) (I) of the above mentioned Law, in that during the years 1943 and 1944 he devised measures the purpose of which was to prevent childbearing among Jews by his instruction forbidding births and for the interruption of pregnancy of Jewish women in the Theresin ghetto with intent to exterminate the Jewish people."
[B. Evidentiary comment:]
P.1.5. Evidence that the perpetrator issued instructions for the interruption of pregnancy.
A. Legal source/authority and evidence:
Attorney-General of Israel v. Adolf Eichmann, Judgement (District Court of Jerusalem) (1968) 36 ILR 5, para. 244, p.13:
"244. [ ]
We convict the accused pursuant to the fourth Count of a crime against the Jewish people, an offence under Section I (a) (I) of the above mentioned Law, in that during the years 1943 and 1944 he devised measures the purpose of which was to prevent childbearing among Jews by his instruction forbidding births and for the interruption of pregnancy of Jewish women in the Theresin ghetto with intent to exterminate the Jewish people."
"In regard to the Eastern occupied territories, the Court found that he was connected to the Einsatzgruppen carrying out the massacres there, and later with the introduction of gas and the use of Zyklon B at Auschwitz. There was however no administrative connection between his department and the extermination camps, but his department did control Theresienstadt and Jewish detainees in Bergen-Belsen, and he gave orders for the termination of pregnancies in Theresienstadt. The Court rejected his contention that he was merely a "small cog" in the extermination machine, finding that he was the head of the department of the RSHA (Reichssicherheitshauptamt) engaged in carrying out the final solution" in accordance with general directives but having wide discretionary powers in planning; that the execution of the programme gave him personal satisfaction; and that the defence of superior orders was only available where the orders were not "manifestly unlawful", which the order for extermination manifestly was."
[B. Evidentiary comment:]
P.1.6. Evidence of forced birth control.
A. Legal source/authority and evidence:
Prosecutor v. Georges Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, paras. 48, 53:
"48. The Chamber adheres to the definition of the crime of genocide as it was defined in the Akayesu Judgment."
"53. For the purposes of interpreting Article 2(2)(d) of the Statute, the Chamber holds that the words "measures intended to prevent births within the group" should be construed as including sexual mutilation, enforced sterilization, forced birth control, forced separation of males and females, and prohibition of marriages. The Chamber notes that measures intended to prevent births within the group may be not only physical, but also mental."
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 507-508:
"Imposing measures intended to prevent births within the group (paragraph d):
507. For purposes of interpreting Article 2(2)(d) of the Statute, the Chamber holds that the measures intended to prevent births within the group, should be construed as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages. In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group.
508. Furthermore, the Chamber notes that measures intended to prevent births within the group may be physical, but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate."
[B. Evidentiary comment:]
P.1.7. Evidence of sexual mutilation.
A. Legal source/authority and evidence:
Prosecutor v. Georges Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, paras. 48, 53:
"48. The Chamber adheres to the definition of the crime of genocide as it was defined in the Akayesu Judgment."
"53. For the purposes of interpreting Article 2(2)(d) of the Statute, the Chamber holds that the words "measures intended to prevent births within the group" should be construed as including sexual mutilation, enforced sterilization, forced birth control, forced separation of males and females, and prohibition of marriages. The Chamber notes that measures intended to prevent births within the group may be not only physical, but also mental."
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 507-508:
"Imposing measures intended to prevent births within the group (paragraph d):
507. For purposes of interpreting Article 2(2)(d) of the Statute, the Chamber holds that the measures intended to prevent births within the group, should be construed as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages. In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group.
508. Furthermore, the Chamber notes that measures intended to prevent births within the group may be physical, but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate."
[B. Evidentiary comment:]
P.2. Evidence of rape as a measure designed to prevent births within the group.
A. Evidentiary comment:
For a successful prosecution based on the underlying offence of rape, it would need to be established that through such rape, sexual mutilation or sterilization of the victim, the perpetrator not only intended to abuse his victim sexually, but that in doing so he intended to prevent births within the group of his victim. Whether sexual violence against male victims falls within this category has not been addressed by the ICTR/ICTY. Mettraux suggests that there does not appear to be any reason why such acts could not qualify as long as they can be shown to have been intended to prevent births within the group of the victim. (Guena?l Mettraux, International Crimes and the Ad Hoc Tribunals (2005), p. 242)
P.2.1. Evidence of rape with deliberate intent of perpetrator to impregnate victim.
A. Legal source/authority and evidence:
Prosecutor v. Georges Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, para. 48:
"48. The Chamber adheres to the definition of the crime of genocide as it was defined in the Akayesu Judgment."
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 507-508:
"Imposing measures intended to prevent births within the group (paragraph d):
507. For purposes of interpreting Article 2(2)(d) of the Statute, the Chamber holds that the measures intended to prevent births within the group, should be construed as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages. In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group.
508. Furthermore, the Chamber notes that measures intended to prevent births within the group may be physical, but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 117:
"Imposing Measures Intended to Prevent Births Within the Group
117.Article 2(2)(d) of the Statute covers the act of imposing measures intended to prevent births within the group. The Trial Chamber concurs with the explanation provided in the Akayesu Judgment."
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 507-508:
"Imposing measures intended to prevent births within the group (paragraph d):
507. For purposes of interpreting Article 2(2)(d) of the Statute, the Chamber holds that the measures intended to prevent births within the group, should be construed as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages. In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group.
508. Furthermore, the Chamber notes that measures intended to prevent births within the group may be physical, but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate."
[B. Evidentiary comment:]
P.3. Not required: evidence that the measures intended to prevent births actually achieved that aim.
A. Legal source/authority and evidence:
William Schabas, Genocide in International Law (2000), p. 173:
"Article II (d) of the Convention does not make a result a material element of the offence. The actus reus consists of the imposition of the measures; it need not be proven that they have actually succeeded."
