Table of contents:
6. The measures imposed were intended to prevent births within that group.
P.4. Evidence of the imposition of measures to prevent reproduction.
6.2. The measures were intended to prevent births.
P.6. Evidence that the perpetrator issued orders imposing measures intended to prevent births.
P.7. Evidence that the perpetrator signed decrees curtailing marriages
P.8. Not required: Evidence that the perpetrator had the intent to prevent births totally.
P.10. Evidence of a "stable group" constituted in a permanent fashion.
P.10.1. Evidence that membership in a group is determined by birth.
P.10.2. Evidence that membership in a group normally cannot be challenged by its members.
P.10.3. Evidence that membership in a group is retained in a continuous manner.
P.11. Evidence of classification of a group.
P.11.3. Evidence of classification of a group as such by the perpetrators.
P.11.4. Evidence of classification of a group as such by its members themselves.
P.11.5. Evidence of official classification of a group as such by the constitution/laws.
P.11.6. Evidence of official classification of a group as such by identity cards.
Element:
6. The measures imposed were intended to prevent births within that group.
A. Evidentiary comment:
The meaning of the phrase imposing measures was clarified in the Eichmann case:
"199. Section I (b) (4) of the Law says "imposing measures", etc., following apparently Section 2(d) of the Convention on the Prevention and Punishment of the Crime of Genocide wherein the expression "imposing measures" is also used. The fourth Count of the indictment speaks of "the devising of such measures". The word "devising" is a more accurate translation of the original Hebrew word in the text of the law. We construe "imposing measures" here to mean actually putting the measures into effect, at least to the point of giving orders to carry them out. This has not been proved against the accused in the matter of sterilisation." (Attorney-General of Israel v. Adolf Eichmann, Judgement (District Court of Jerusalem) (1968) 36 ILR 5, para. 199)
P.4. Evidence of the imposition of measures to prevent reproduction.
A. Legal source/authority and evidence:
Attorney-General of Israel v. Adolf Eichmann, Judgement (District Court of Jerusalem) (1968) 36 ILR 5, para. 159 (pp. 201-202)
"159. We know of the prevention of births in the Kovno Ghetto and in Theresin. [ ]
On this subject, Rahm (who succeeded Seidl as camp commander) stated at his trial (T/864):
"[ ]Epstein took the opportunity to draw my attention to the duty to carry out abortions on Jewesses, and when Guenther happened to come on a visit I asked him about this and he confirmed that I did not need to worry myself about this matter since it concerned the Jews themselves, and the chairman of the Jews had received notice about it directly from Eichmann."
[ ]
As to Theresin, the accuseds responsibility for the order given there for the termination of pregnancies and for its implementation had been fully proved."
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."
A. Legal source/authority and evidence:
William Schabas, Genocide in International Law (2000), p. 174:
"In contrast with paragraph (c), paragraph (d) does not require that the measures to restrict births be calculated to bring about the destruction of the group in whole or in part, only that they be intended to prevent births within the group. Such measures can be merely ancillary to a genocidal plan or programme, as it was, for example, in the case of the Nazis. Adolph Eichmann was tried on a charge of devising measures intended to prevent child-bearing among the Jews. The Court said that it did not regard the prevention of child-bearing as an explicit part of the final solution, concluding Eichmanns involvement in imposing measures ahd not been proven.139 Nevertheless, he was convicted for devising 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.140"
139. A-G Israel v. Eichmann, note 59 above, para. 199.
140. Ibid, para. 244.
6.2. The measures were intended to prevent births.
A. Evidentiary comment:
The phrase "imposing measures" signifies the necessity of a coercive element. This would mean that state-sponsored voluntary birth control programs as part of state social policy would not be attract this provision. (1996 Draft Code of Crimes, UN Doc. A/51/10 (1996), p. 92, para. 16; cited in Machteld Boot, Genocide, Crimes Against Humanity and War Crimes(2002), para 422)
P.6. Evidence that the perpetrator issued orders imposing measures intended to prevent births.
A. Legal source/authority and evidence:
Attorney-General of Israel v. Adolf Eichmann, Judgement (District Court of Jerusalem) (1968) 36 ILR 5, para. 159 (pp. 201-202)
"159. We know of the prevention of births in the Kovno Ghetto and in Theresin. [ ]
On this subject, Rahm (who succeeded Seidl as camp commander) stated at his trial (T/864):
"[ ]Epstein took the opportunity to draw my attention to the duty to carry out abortions on Jewesses, and when Guenther happened to come on a visit I asked him about this and he confirmed that I did not need to worry myself about this matter since it concerned the Jews themselves, and the chairman of the Jews had received notice about it directly from Eichmann."
[ ]
As to Theresin, the accuseds responsibility for the order given there for the termination of pregnancies and for its implementation had been fully proved."
P.7. Evidence that the perpetrator signed decrees curtailing marriages
A. Legal source/authority and evidence:
United States v. Ulrich Greifelt et al., (1948) 13 LRTWC 1 (United States Military Tribunal), p.17, p. 19:
(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 evidence showed that those invoved in the execution of these measures were the members of RUSHA, VOMI and the Main Staff Office. Representatives of the first two made suggestions concerning measures to be enacted, and requested and obtained the right to have individual cases decided by Higher SS and Police Leaders, which resulted in decisive intervention on the part of the Main Staff Office. The latter prepared the decrees concerning marriages. Greifelt signed several of them."
P.8. Not required: Evidence that the perpetrator had the intent to prevent births totally.
A. Legal source/authority and evidence:
Machteld Boot, Genocide, Crimes Against Humanity and War Crimes(2002), para. 422:
"422. In order to constitute genocide, it is not necessary that the perpetrator had the intent to prevent births totally. According to Drost, it will be sufficient that partial prevention is the purpose of the measures in question.221"
"221- Drost, 1959, p. 86"
A. Legal source/authority and evidence:
William Schabas, Genocide in International Law (2000), p. 174:
"In contrast with paragraph (c), paragraph (d) does not require that the measures to restrict births be calculated to bring about the destruction of the group in whole or in part, only that they be intended to prevent births within the group. Such measures can be merely ancillary to a genocidal plan or programme, as it was, for example, in the case of the Nazis. Adolph Eichmann was tried on a charge of devising measures intended to prevent child-bearing among the Jews. The Court said that it did not regard the prevention of child-bearing as an explicit part of the final solution, concluding Eichmanns involvement in imposing measures ahd not been proven.139 Nevertheless, he was convicted for devising 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.140"
"139. A-G Israel v. Eichmann, note 59 above, para. 199.
140. Ibid, para. 244."
P.10. Evidence of a "stable group" constituted in a permanent fashion.
A. Legal source/authority and evidence:
Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, para. 69:
"69. Article 4 of the Statute protects victims belonging to a national, ethnical, racial or religious group and excludes members of political groups. The preparatory work of the Convention demonstrates that a wish was expressed to limit the field of application of the Convention to protecting "stable" groups objectively defined and to which individuals belong regardless of their own desires94."
Prosecutor v. Georges Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, para. 57:
"57. [ ] It appears, from a reading of the travaux préparatoires of the Genocide Convention17, that certain groups, such as political and economic groups, have been excluded from the protected groups, because they are considered to be "mobile groups" which one joins through individual, political commitment. That would seem to suggest a contrario that the Convention was presumably intended to cover relatively stable and permanent groups."
"17. Summary Records of the meetings of the Sixth Committee of the General Assembly, 21 September - 10 December 1948, Official Records of the General Assembly."
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 510, 515:
"510. On reading through the travaux préparatoires of the Genocide Convention,96 it appears that the crime of genocide was allegedly perceived as targeting only "stable" groups, constituted in a permanent fashion and membership of which is determined by birth, with the exclusion of the more "mobile" groups which one joins through individual voluntary commitment, such as political and economic groups. Therefore, a common criterion in the four types of groups protected by the Genocide Convention is that membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner."
"96. Summary Records of the meetings of the Sixth Committee of the General Assembly, 21 September 10 December 1948, Official Records of the General Assembly."
"515. In the opinion of the Chamber, it is particularly important to respect the intention of the drafters of the Genocide Convention, which according to the travaux préparatoires, was patently to ensure the protection of any stable and permanent group."
P.10.1. Evidence that membership in a group is determined by birth.
A. Legal source/authority and evidence:
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 510:
"510. [A] common criterion in the four types of groups protected by the Genocide Convention is that membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner."
[B. Evidentiary comment:]
P.10.2. Evidence that membership in a group normally cannot be challenged by its members.
A. Legal source/authority and evidence:
Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, para. 69:
"69. [ ] The preparatory work of the Convention demonstrates that a wish was expressed to limit the field of application of the Convention to protecting "stable" groups objectively defined and to which individuals belong regardless of their own desires94."
"94. Not retained at the draft stage when submitted to the United Nations General Assembly (E/447) because of their lack of permanence, political groups were included under protected groups in the ad hoc committees draft document by a narrow majority (4 votes to 3; UN Off. Doc. E/794 of 24 May 1948 pp. 13-14). The reference to political groups was however again rejected in the final draft of the Assembly Generals Sixth Committee (see in particular the commentaries of the Brazilian and Venezuelan representatives expressing their concern about the fact that only "permanent" groups were specified, A/C.6/SR 69, p. 5)."
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 510:
"510. [A] common criterion in the four types of groups protected by the Genocide Convention is that membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner."
[B. Evidentiary comment:]
P.10.3. Evidence that membership in a group is retained in a continuous manner.
A. Legal source/authority and evidence:
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 510:
"510. [A] common criterion in the four types of groups protected by the Genocide Convention is that membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner."
[B. Evidentiary comment:]
P.11. Evidence of classification of a group.
A. Legal source/authority and evidence:
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 559:
"559. [ ] The evidence tendered at trial also shows very clearly that the highest Bosnian Serb political authorities and the Bosnian Serb forces operating in Srebrenica in July 1995 viewed the Bosnian Muslims as a specific national group."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, paras. 70 71:
"70. [ ] it is more appropriate to evaluate the status of a national, ethnical or racial group from the point of view of those persons who wish to single that group out from the rest of the community. The Trial Chamber consequently elects to evaluate membership in a national, ethnical or racial group using a subjective criterion. It is the stigmatisation of a group as a distinct national, ethnical or racial unit by the community which allows it to be determined whether a targeted population constitutes a national, ethnical or racial group in the eyes of the alleged perpetrators95. This position corresponds to that adopted by the Trial Chamber in its Review of the Indictment Pursuant to Article 61 filed in the Nikolic case96."
"71. A group may be stigmatised in this manner by way of positive or negative criteria. A "positive approach" would consist of the perpetrators of the crime distinguishing a group by the characteristics which they deem to be particular to a national, ethnical, racial or religious group. A "negative approach" would consist of identifying individuals as not being part of the group to which the perpetrators of the crime consider that they themselves belong and which to them displays specific national, ethnical, racial or religious characteristics. Thereby, all individuals thus rejected would, by exclusion, make up a distinct group. The Trial Chamber concurs here with the opinion already expressed by the Commission of Experts97 and deems that it is consonant with the object and the purpose of the Convention to consider that its provisions also protect groups defined by exclusion where they have been stigmatised by the perpetrators of the act in this way."
"95. Here, the Trial Chamber follows in part the position taken by the International Criminal Tribunal for Rwanda which stated that "an ethnic group is one whose members share a common language and culture; or a group which distinguishes itself, as such (self-identification); or, a group identified as such by others, including the perpetrators of the crimes (identification by others)" in the Kayishema case (Judgement, para. 98).
96. Review in the case The Prosecutor v. Nikolic (hereinafter "the Nikolic Review"), 20 October 1995, para. 27, as part of the appraisal of the crime against humanity "persecution": "the civilian population subjected to such discrimination was identified by the perpetrators of the discriminatory measures, principally by its religious characteristics" (emphasis added).
97. Final Report of the Commission of Experts, op. cit., para. 96, p. 25: "If there are several or more than one victim groups, and each group as such is protected, it may be within the spirit and purpose of the Convention to consider all the victim groups as a larger entity. The case being, for example, that there is evidence that group A wants to destroy in whole or in part groups B, C and D, or rather everyone who does not belong to the national, ethnic, racial or religious group A. In a sense, group A has defined a pluralistic non-A group using national, ethnic, racial and religious criteria for the definition. It seems relevant to analyse the fate of the non-A group along similar lines as if the non-A group had been homogenous"."
[B. Evidentiary comment:]
P.11.3. Evidence of classification of a group as such by the perpetrators.
A. Legal source/authority and evidence:
Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgment (TC), 7 June 2001, para. 65:
"65. [ ] Moreover, the perpetrators of genocide may characterize the targeted group in ways that do not fully correspond to conceptions of the group shared generally, or by other segments of society. In such a case, the Chamber is of the opinion that, on the evidence, if a victim was perceived by a perpetrator as belonging to a protected group, the victim could be considered by the Chamber as a member of the protected group, for the purposes of genocide."
Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, paras. 70 71:
"70. [ ] it is more appropriate to evaluate the status of a national, ethnical or racial group from the point of view of those persons who wish to single that group out from the rest of the community. The Trial Chamber consequently elects to evaluate membership in a national, ethnical or racial group using a subjective criterion. It is the stigmatisation of a group as a distinct national, ethnical or racial unit by the community which allows it to be determined whether a targeted population constitutes a national, ethnical or racial group in the eyes of the alleged perpetrators95. This position corresponds to that adopted by the Trial Chamber in its Review of the Indictment Pursuant to Article 61 filed in the Nikolic case96."
"71. A group may be stigmatised in this manner by way of positive or negative criteria. A "positive approach" would consist of the perpetrators of the crime distinguishing a group by the characteristics which they deem to be particular to a national, ethnical, racial or religious group. A "negative approach" would consist of identifying individuals as not being part of the group to which the perpetrators of the crime consider that they themselves belong and which to them displays specific national, ethnical, racial or religious characteristics. Thereby, all individuals thus rejected would, by exclusion, make up a distinct group. The Trial Chamber concurs here with the opinion already expressed by the Commission of Experts97 and deems that it is consonant with the object and the purpose of the Convention to consider that its provisions also protect groups defined by exclusion where they have been stigmatised by the perpetrators of the act in this way."
"95. Here, the Trial Chamber follows in part the position taken by the International Criminal Tribunal for Rwanda which stated that "an ethnic group is one whose members share a common language and culture; or a group which distinguishes itself, as such (self-identification); or, a group identified as such by others, including the perpetrators of the crimes (identification by others)" in the Kayishema case (Judgement, para. 98).
96. Review in the case The Prosecutor v. Nikolic (hereinafter "the Nikolic Review"), 20 October 1995, para. 27, as part of the appraisal of the crime against humanity "persecution": "the civilian population subjected to such discrimination was identified by the perpetrators of the discriminatory measures, principally by its religious characteristics" (emphasis added).
97. Final Report of the Commission of Experts, op. cit., para. 96, p. 25: "If there are several or more than one victim groups, and each group as such is protected, it may be within the spirit and purpose of the Convention to consider all the victim groups as a larger entity. The case being, for example, that there is evidence that group A wants to destroy in whole or in part groups B, C and D, or rather everyone who does not belong to the national, ethnic, racial or religious group A. In a sense, group A has defined a pluralistic non-A group using national, ethnic, racial and religious criteria for the definition. It seems relevant to analyse the fate of the non-A group along similar lines as if the non-A group had been homogenous"."
Prosecutor v. Georges Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, para. 56:
"56. [M]embership of a group is, in essence, a subjective rather than an objective concept. The victim is perceived by the perpetrator of genocide as belonging to a group slated for destruction."
[B. Evidentiary comment:]
P.11.4. Evidence of classification of a group as such by its members themselves.
A. Legal source/authority and evidence:
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 559:
"559. [ ] it is doubtful that the Bosnian Muslims residing in the enclave at the time of the offensive considered themselves a distinct national, ethnical, racial or religious group among the Bosnian Muslims. [ ] Evidence shows that they rather viewed themselves as members of the Bosnian Muslim group."
Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 98:
"98. An ethnic group is one whose members share a common language and culture; or, a group which distinguishes itself, as such (self identification); or, a group identified as such by others, including perpetrators of the crimes (identification by others)."
[B. Evidentiary comment:]
P.11.5. Evidence of official classification of a group as such by the constitution/laws.
A. Legal source/authority and evidence:
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 559:
"559. Originally viewed as a religious group, the Bosnian Muslims were recognised as a "nation" by the Yugoslav Constitution of 1963."
Prosecutor v. Georges Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, para. 374:
"374. The Chamber concurs with the Akayesu Judgement103, that the Tutsi population does not have its own language or a distinct culture from the rest of the Rwandan population. However, the Chamber finds that there are a number of objective indicators of the group as a group with a distinct identity. [ ] The Rwandan Constitution and laws in force in 1994 also identified Rwandans by reference to their ethnic group."
"103. Akayesu Judgement, para. 170."
[B. Evidentiary comment:]
P.11.6. Evidence of official classification of a group as such by identity cards.
A. Legal source/authority and evidence:
Prosecutor v. Georges Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, para. 374:
"374. The Chamber concurs with the Akayesu Judgement103, that the Tutsi population does not have its own language or a distinct culture from the rest of the Rwandan population. However, the Chamber finds that there are a number of objective indicators of the group as a group with a distinct identity. Every Rwandan citizen was, before 1994, required to carry an identity card which included an entry for ethnic group, the ethnic group being either Hutu, Tutsi or Twa."
"103. Akayesu Judgement, para. 170."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
William Schabas, Genocide in International Law (2000), p. 174:
"In contrast with paragraph (c), paragraph (d) does not require that the measures to restrict births be calculated to bring about the destruction of the group in whole or in part, only that they be intended to prevent births within the group. Such measures can be merely ancillary to a genocidal plan or programme, as it was, for example, in the case of the Nazis. Adolph Eichmann was tried on a charge of devising measures intended to prevent child-bearing among the Jews. The Court said that it did not regard the prevention of child-bearing as an explicit part of the final solution, concluding Eichmanns involvement in imposing measures ahd not been proven.139 Nevertheless, he was convicted for devising 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.140"
"139. A-G Israel v. Eichmann, note 59 above, para. 199.
140. Ibid, para. 244."
