Table of contents:
Element:
3. The perpetrator deprived one or more persons of biological reproductive capacity.54
A. Evidentiary comment:
Enforced sterilization is listed for the first time in the ICC Statute as a crime against humanity. No definition of sterilization is found in international instruments. (Roy S Lee, "The International Criminal Court:- Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers 2001, p. 195) The case law on the topic is limited: enforced sterilization has been punished in the context of so-called medical experiments conducted during the Second World War against both prisoners-of-war and civilians. (Enforced sterilization is also a form of genocide by "imposing measures intended to prevent births within the group" within the meaning of Article 6(e) of the Rome Statute.)The ICC will develop its own jurisprudence that will directly address the elements of this specific crime.
P.1. Evidence of sterilization experiments.
A. Legal source/authority and evidence:
United States of America v. Karl Brandt et al., Case No. 5, Judgement (Military Tribunal No. I), 20 August 1947, reproduced in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Proceedings, Vol. 2 (1949-53), p. 177:
"From about March 1941 to about January 1945 sterlilization experiments were conducted at the Auschwitz and Ravensbrueck concentration camps, and other places. The purpose of these experiments was to develop a method of sterilization which would be suitable for sterilizing millions of people with a minimum of time and effort. These experiments were conducted by means of X-ray, surgery, and various drugs. Thousands of victims were sterilized and thereby suffered great mental and physical anguish. The defendants Karl Brandt, Gebhardt, Rudolf Brandt, Mrugowsky, Poppendick, Brack, Pokorny and Oberhauser are charged with special responsibility for and participation in these crimes."
P.2. Evidence of sterilization as genocide by imposing measures intended to prevent births.
A. Legal source/authority and evidence:
Prosecutor v. George 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 Judgement."
"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."
"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 Judgement."
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."
Trial of Öbersturmbannführer Rudolf Franz Ferdinand Hoess, Case No. 38, Judgement (Supreme National Tribunal of Poland), 11-29 March 1947, reported in United Nations War Crimes Commission, Law Reports of Trials of War Criminals, Vol 8 (1948), 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:
Enforced sterilization is also a form of genocide by "imposing measures intended to prevent births within the group" within the meaning of Article 6(e) of the Rome Statute. Therefore the case law of the ICTR and ICTY dealing with enforced sterilization as a form of genocide is included in this means of proof document.
