The widely accepted belief that genocide only entails killing members of a racial, religious, national, or ethnic group misconstrues the multiple ways that genocide is perpetuated. Article II of the 1948 United Nations (UN) Convention on the Prevention and Punishment of the Crime of Genocide (hereafter referred to as the Genocide Convention) underscores the reality that genocide can be accomplished by other acts, independent of or along with killings. The infliction of serious physical or mental harm to members of a group, or the transfer of children from one group to another, suffices, under certain conditions, as an act of genocide. Likewise, Article II(d) of the Genocide Convention seeks to prevent, suppress, and punish those who would "impose measures intended to prevent birth within the group." This provision verifies that by impeding a group's ability to reproduce and thus denying the physical existence of its members, even prior to their birth, a group can be destroyed in whole or part.

German Laws on Racial Purity

In the mid-1930s Germany enacted a series of laws, ostensibly to ensure the physical health of its citizens, but in reality, to oversee the purity of "the German race." The idea that the political state should be composed of a single race or unique people intertwined several political and pseudo-scientific theories. The Enlightenment philosophy of the 1700s exalted the natural rights of man. Eighteenth-century European revolts against the monarchy and American revolts against colonialism were heavily influenced by Enlightenment philosophers who advocated the restructuring of political states according to the true nature of the democratic individual.

In the mid-nineteenth century ethnologists, influenced by Charles Darwin's theories on the biological origin of the species, tried to determine the historical origins of the races. In the 1850s Arthur de Gobineau, horrified by the decline of French society, proposed a racial theory to explain the evolution of human societies. In his Essay on the Inequality of the Human Race, Gobineau maintained the existence of three unequal races: white, yellow, and black. The white race was superior to the others, while the black race was inferior to the white and yellow races. Each race also possessed inherent intellectual abilities. A race's physiological traits, such as prominent noses among the white race, supposedly revealed immutable values. Gobineau concluded that the major threat to human society and the harbinger of a civilization's degeneration was mixed-race procreation.

In the late nineteenth century Houston Stewart Chamberlain, an Englishman residing in Germany, disseminated the "scientific" idea that among the white races, only the Teutons stood at the pinnacle of racial evolution. Chamberlain touted the Teutons, also called Aryans, as an ancient, noble, pure-blooded race. He believed that Teutons had, over the centuries, developed a "race-soul" that biologically rendered them morally, spiritually, and creatively superior. Chamberlain's findings nourished a genre of romantic-political myth about the Aryan race and prompted some Germans to believe that they were pure descendants of the Teutons. Inspired by Chamberlain's race-based premises, ethnologists eagerly unearthed certain linguistic and semiotic proof of the longevity and original purity of the Aryan race.

By the 1930s, when the Nazi Party assumed power in Germany, eugenics, the science of selective biological breeding, became a political goal under the guise of health regulations, euphemistically termed racial hygiene. Consequently, the state regulated reproductive capacity with the aim of preserving national purity by suppressing racial impurity. Initially, German racial hygiene laws affected persons who were racially recognized as German, but who comprised part of the less desirable segments of German society.

In July 1933 the Law for the Prevention of Genetically Diseased Offspring provided for the sterilization of an individual if he or she suffered from genetically determined illnesses, including feeblemindedness, schizophrenia, manic depression, epilepsy, Huntington's chorea, genetic blindness or deafness, and severe alcoholism. Commonly known as the Sterilization Law, it signalled a direct reversal of German policy that, until the 1930s, had strictly forbidden sterilization procedures. Germany justified its reversal, in part, by citing the example of other civilized countries such as Denmark, Norway, Czechoslovakia, Hungary, and the United States that permitted sterilization of the criminally insane or feebleminded.

In the first year after the Sterilizations Law was promulgated, genetic health courts, staffed by physicians, secretly administered and authorized over 56,000 sterilization procedures. In November 1933 the German state passed the Law Against Dangerous Career Criminals that required the castration of sex offenders. On July 26, 1935, a supplemental ordinance, authorizing forced abortions for women who were genetically unfit but who had already conceived and thus fell outside of the scope of the original sterilization edict, became law.

By the mid-1930s Germany asserted that only a subsection of Germans could be recognized as racially pure or Aryan. As a result in 1937, the genetic health courts, together with the Gestapo and state police, began to enforce the restrictive birth policy against mix-raced individuals. Under the Rheinlandbastarde policy, they secretly authorized the sterilization of some five hundred persons of mixed German and African ancestry. Reference to non-Aryans increasingly meant all Jews, even those who were German citizens. In 1938 a law provided for Jewish women to abort their pregnancies solely based on their new racial status.

By 1939 these sterilization policies ensured that over 400,000 Germans, either mixed-raced, Jewish, non-Aryan, or mentally or physically infirm underwent forced sterilization. The sterilization procedures included tubal ligation, vasectomy, x-ray exposure, or hysterectomy. The policies were a precursor to the Nazi euthanasia laws, which became law at the start of World War II. The euthanasia laws decreed that the outright killing of potential parents of undesirable offspring was preferable to regulating their ability to reproduce. Euthanasia was regarded as the ultimate means of ensuring racial and national purity.

The Nazi sterilization policies complemented another set of reproductive edicts that were collectively referred to as the Nuremberg Laws. In September 1935 the Reich Citizenship Law mandated that only full-blooded Germans were entitled to citizenship, whereas Jews would only be considered residents of Germany. Also in September of that same year the Law for the Protection of German Blood and German Honor proscribed marriages and sexual relations between Jews and non-Jews illegal. In October 1935 the Law for the Protection of the Genetic Health of the German People required couples to submit to premarital medical examinations to check for any of the illnesses sanctioned in the 1933 Sterilization Law; when deemed necessary, these marriages were prevented.

Whereas the sterilization policies mandated surgical interventions to stop reproduction, the Nuremberg Laws racially "declassified" individuals in declaring that they were not of German blood. They outlawed sexual contact between racially superior Germans and those termed racially denigrated. It is thus easy to understand why these measures, namely sterilization or compulsory abortions, segregation of the sexes, or obstacles to marriage, concerned the drafters of Article II(d) of the Genocide Convention.

A third set of reproductive policies introduced in the mid-1930s compelled German women considered to be racially Aryan to procreate, by offering pro-birth incentives. The German state awarded mothers of four or more children bronze, silver, or gold medals. It also provided loans of up to one year's salary to persuade women to leave the workforce and return home. Aryan women were encouraged to bear children out of wedlock. Infertility became recognized as grounds for divorce. A system of disincentives discouraged Aryan types from remaining childless. A penalty tax was levied on Aryans who had married and not procreated within five years. Stiff fines and prison sentences were meted out to physicians or others who performed abortions on Aryan women.

These birth incentive policies purported to rectify "the disproportionate breeding of inferiors, decrease the rampant celibacy of the German upper classes and control the threat posed by working women, liberated from the household" that the state viewed as detrimental "to the reproductive performance of the family." Although Article II(d) of the Genocide Convention refers to measures that prevent births, these countermeasures, to stimulate births among the Aryan population, unambiguously illustrate the fact that the Nazi sterilization policies and Nuremberg Laws did function as measures imposed to regulate all births.

This complex system of reproduction policies, based on the state's concepts of race and nation, must be grasped to understand the potential scope of Article II(d). Incongruously, when Japan, India, and Iraq be came German allies in arms during World War II, the non-Aryan racial and political treatise was not directed against them.

Eric Weitz, in A Century of Genocide Utopias of Race and Nation, observed that "slippage from the nation as a political community to the nation as a racial community became more prevalent when culture, not political rights was made the defining element in the formation of a nation" (2003). In the early twenty-first century ethnic, national, or religious identity might fall prey to subjectivity, as did racial groupings under the Nazi government. One need only reflect on white Australian immigration policies between the 1940s and 1970s, the former apartheid regime of South Africa, or the expulsion of Asian-descended Ugandans from their homes in the 1970s to comprehend the twentieth-century's malleable concepts of race and nation.

Article II(d) and World War II Cases

The potential breadth of Article II(d)'s prohibition is also rooted in the egregious forced labor programs and concentration camp experiments of World War II. Germany invaded Eastern Europe in 1939 and established forced labor programs, using Polish and Russian workers of both sexes. The Allied military trials of minor Nazi officials made clear that the Third Reich built into its forced labor policies measures intended to prevent birth among non-Aryan workers. In the United States v. Greifelt et al., the defendants were leading officials in the SS Main Race and Settlement Office and the Repatriation Office for Ethnic Germans. The SS Main Race and Settlement Office devised the following measures for foreign workers:

Comprehensive sterilization of such men and women of alien blood in German agriculture who, on the basis of our race laws—to be applied even more strictly in these cases—have been declared inferior with regard to their physical, spiritual and character traits.

A ruthless but skillful propaganda among farm-workers of alien blood, to the effect that neither they nor their children, produced on the soil of German people, could expect much good; in other words, immediate separation of parents and children, eventually complete estrangement; sterilization of children afflicted with hereditary disease.

Charged with crimes against humanity and war crimes for "compelling abortions on Eastern workers" and "preventing marriages and hampering reproduction of enemy nationals" Griefelt and all but one of the defendants were pronounced guilty and sentenced to imprisonment of up to twenty-five years.

In Poland v. Höss, the defendant, commandant of the Auschwitz concentration camp, was charged with the persecution of Poles and Jews, a crime against humanity, as well as war crimes against Soviet prisoners of war. Under the command of Höss, camp personnel performed medical experiments on the male and female prisoners. Data were collected to quantify the most effective means to castrate men, sterilize women, or terminate pregnancies. The castration experiments employed high dosages of x-rays that caused infertility together with severe burns on prisoners' genitalia, physical debilitation, mental stress, and often the death of the victims. The pregnancy experiments involved the premature terminations of pregnancy, including injecting pregnant women with typhus-infected blood and then artificially provoking labor. The Polish tribunal found Höss guilty and sentenced him to death.

In 1961 Israel prosecuted former Nazi Adolf Eichmann for devising measures intended to prevent childbearing among Jews in the Theresienstadt (in Czech Terezín) ghetto. The court found, however, that Eichmann was not involved in the imposition of measures to prevent births as an act of genocide. It held that the primary intent of forbidding births and interrupting the pregnancies of Jewish women in the Theresienstadt ghetto was to exterminate Jews and not prevent births. The court drew a distinction between the intent of cruel medical procedures and that of measures intended to prevent births as proscribed in Article II(d).

The three cases are instructive. The Greifelt case demonstrated the actual measures executed by Nazi racist ideology to prevent births among foreign forced laborers. The Höss and Eichmann cases revealed the gruesome nature of medical procedures performed on camp inmates who were already condemned to death. The experiments conducted at Auschwitz were not performed to prevent births among the inmates, but rather, they served to perfect any future measures to restrict births. The medical procedures cited in the Eichmann case were a first step in the extermination of Jewish inmates. Even though the medical experiments and other acts did not represent the imposition or execution of measures to prevent births among inmates, a frighteningly direct ideological link exists between Nazi sterilization policies, the Nuremberg Laws, and the camp experiments. Auschwitz and Theresienstadt were precursors of what would have become even more draconian measures to prevent births among non-Aryans had the Third Reich triumphed.

Legal Background of Article II(d)

On December 11, 1946, the General Assembly passed Resolution 96(I). It defined genocide as a denial of the right of existence of entire human groups and "[a]ffirmed that genocide is a crime under international law which the civilized world condemns." Resolution 96(I) was a declaration of principles that guided the drafting of the Genocide Convention. Another historical forerunner to the Genocide Convention was the Draft Convention for Genocide prepared by the UN Secretariat. The Draft Convention divided genocidal acts into three subcategories: the physical, biological, and cultural. Article I(2) of the Draft Convention characterized biological genocide as "measures aimed at extinction of a group of human beings by systematic restrictions on births, without which the group cannot survive." Methods cited to accomplish this form of genocide were sterilization or compulsory abortions, segregation of the sexes, or obstacles to marriage.

An ad hoc committee revised the Draft Convention and proposed language for Article II(4) that proscribed "imposing measures intended to prevent births within the group." The eventual Genocide Convention adopted the ad hoc committee's language. The final wording abandoned the terms "biological genocide" and "restricting births" and made no direct references to measures such as sterilization, compulsory abortions, or obstacles to marriage, or to the systematic allocation of work to men and women in different locations. Still, the drafters' objective in crafting Article II(d) was to shield groups from these very acts. The essential aspect of Article II(d) is that it condemns, as an act of genocide, measures intended to prevent births within a racial, national, religious, or racial group.

Commentary on Article II(d)

In 1949 Nehemiah Robinson wrote an early noteworthy commentary on the Genocide Convention. He focused on two aspects of Article II(d): the number of births that must be prevented and the range of acknowledged measures to prevent births. He addressed the first aspect as follows:

Subparagraph (d) may in practice give rise to the problem whether the intention must be to prevent all births within the group or is it sufficient that it relates to some births only [emphases in original]. Although this subparagraph speaks not of restriction but prevention, it must be admitted that the intent of partial prevention suffices since the requirement of total prevention would conflict with the definition of Genocide as relating not only to the group as a whole, but also to a part of it.

[T]he factual extent of prevention should be of no import once it is established that it was imposed on members of the protected groups only (1949).

Robinson observed that the number of actual births prevented is relevant only in terms of whether the intention was to prevent, even partially, the births within a group.

In Robinson's second commentary on the Genocide Convention, written in 1960, he reiterated the view that the "the actual extent of prevention may not be decisive once it is established that it was imposed . . . with the intent of destruction." Among contemporary historians, William A. Schabas writes that "Article II(d) of the Convention does not make a result [emphasis in original] a material element of the offence. The actus reus consist of the imposition of measures; it need not be proven that they have actually succeeded" (2000). Hence, a common interpretation of Article II(d) is that quantity or actual numbers of unborn members of a group is not required to establish an act of genocide. Such statistics could, however, demonstrate that the measures imposed were intended to prevent births and that they were effective.

Robinson's other observation in the 1949 commentary expressed the view that the Genocide Convention purposely implied a nonexhaustive range of measures which could satisfy Article II(d), noting that "the measures imposed need not be the classic actions of sterilization; separation of the sexes, prohibition of marriages and the like may achieve the same results" (p. ?). In his second commentary, written in 1960, Robinson added that other measures could be "equally restrictive." Schabas and Otto Triffterer agree with Robinson's remarks that Article II(d) does not limit the types of measures which can be imposed to prevent births within a group.

The language of the treaty leaves open for debate the scope of what could be considered "measures imposed with the intent to prevent births." During the prolonged period before the United States ratified the Genocide Convention, the phrase "intent of measures imposed" provoked controversy and remains polemical. The modern debate is linked to the historical circumstances that prodded the writing of Article II(d).

U.S. Ratification and Article II(d)

The United States was one of the original signatories of the Genocide Convention in 1948, but the U.S. Senate only gave advice and consent to ratification in 1987, after bouts of indifference, defiance, and finally adherence. The acceptance of Article II(d) was contentious. Some senators questioned whether governmentsponsored birth control programs used overwhelmingly by African Americans, Hispanic Americans, or Native Americans might be construed as an act of genocide within the context of Article II(d). They pointed to a thesis of African American genocide that questioned the motives behind proposed legislative bills to authorize involuntary or punitive sterilizations, or the real objectives of legalized family-planning programs and abortion laws as acts of genocide. Black Brazilians voiced similar concerns in the 1970s about state policies that favored a reduction in the number of Black Brazilian births. U.S. proponents of ratification countered such arguments by emphasizing that government-sponsored birth control and family planning programs are voluntary, not compulsory, and they do not aim to destroy any group within the United States.

Another issue of concern for lawmakers considering the ratification of Article II(d) was the history of medical experiments in the United States, notably the Tuskegee syphilis experiment. Between 1930 and 1950 U.S. government officials intentionally withheld the diagnosis of syphilis from a sampling of African American men, all the while diligently but silently recorded the progression of their disease, including the inevitable side-effect of sterility. The officials did not medically treat the men to alleviate or stop the disease. Some senators raised concerns that such acts would constitute violations under Article II(d). Proponents of the Genocide Convention insisted that such medical experiment policies had come to a halt by the 1960s.

Qualms about the United States' racist past and its vulnerability to charges under the Genocide Convention had been voiced from the outset of the Convention's existence. Raphael Lemkin, in the 1950s, had attempted to quell these American fears by observing that "in the Negro problem the intent is to preserve the group on a different level of existence, . . . but not to destroy it."

In 1986 the United States officially ratified Article II(d) as well as other provisions of the Genocide Convention. The Senate, however, expressed general reservation about the terms of the Convention, indicating that the United States could refuse the compulsory jurisdiction of the International Court of Justice (ICJ) if another state accused it of violating the Genocide Convention.

Article II(d) and International Criminal Tribunals

Several international tribunals have included Article II(d) of the Genocide Convention verbatim in their statutes. The ad hoc International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), as well as the Special Panels of East Timor, have jurisdiction over alleged acts of genocide that involve the imposition of certain measures to prevent births. As of 2003 cases tried before these international tribunals have not included prosecutions fort measures intended to prevent births. The Akayesu judgment, issued by the ICTR in 1998, however, held that measures under Article II(d) "should be construed as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages."

On another matter, the Akayesu judgment abruptly departed from Robinson's list of measures, which argued that forced births could not be viewed as a measure to prevent births. The ICTR stated that in patriarchal societies, the rape of women during times of war could be construed as the enemy's attempt to impose their ethnic identity on any newborn children. The Trial Chamber opined that:

[A] measure intended to prevent births within a group is a case where during a 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 not consequently belong to the mother's group.

Similarly, in 1996, the ICTY had held, in a preliminary proceeding against former Bosnian Serb president Radovan Karadzic, that the "systematic rape of women in some cases is intended to transmit a new ethnic identity." The Akayesu judgment also observed that a psychological component to the prevention of birth could operate to violate Article II(d) safeguards:

[T]he Chamber notes that measures intended to prevent births within a 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.

The ICTR Akayesu judgment is considered obiter dicta, meaning that its interpretation lay outside of the relevant factual and legal issues in the actual case before the judges. In Kayhishema and Rutaganda, the second judgment issued by the ICTR, the Trial Chamber concurred, again in obiter dicta, with the interpretation of Article II(d) that had been voiced in the Akayesu case. Schabas acknowledged the potential absurdity of the judicial views that classify rape as a measure to prevent births; however, he also recognized that a sober reading of Article II(d) lends itself to the contemplation of any measures as long as the intent to prevent births is present. Infliction of rapes, sexual mutilations, and any other actions that transfer the ethnic identity of the child to a group other than the mother's, or that intentionally discourage or restrict future procreation feasibly, lies within Article II(d). Triffterer noted the potential judicial relevance of these ICTR findings and the influence they might exert on the interpretation of the Rome Statute of the International Criminal Court (ICC).

Biological Weapons and Article II(d)

Speculation about other potential "measures imposed to prevent births within a group" remains lively. Several propositions, related to wartime scenarios, are repeatedly raised, such as biological or chemical warfare or rape-induced AIDS as acts that could contravene Article II(d).

The Genocide Convention does not explicitly cite military weapons as a type of measure intended to prevent births within a group. Even though the Draft Genocide Convention employed the term "biological genocide," its use was unrelated to biological or chemical warfare, as those terms were utilized in World War I to denote the deployment of mustard gas against enemy soldiers. Modern armed conflicts have employed biological or chemical agents against enemy soldiers, civilian populations, or the environment to defoliate jungle terrain. Scientific research acknowledges the existence of the short- and long-term affects of these chemical or biological agents on male and female reproductive abilities. Exposed female populations exhibit higher rates of spontaneous abortions or miscarriages and the birth of terminally ill or severely disabled children. Exposure to chemical and biological weapons has prompted some men and women to forego childbearing, due to their fear of conceiving mentally or physically disabled offspring. Could the use of biological or chemical weapons be a means to prevent births within a group, or similar to the medical experiments performed in concentration camps during World War II, if the primary intent is to kill the population and not to prevent their reproductive capacity?

Analogous observations have been raised in regard to women raped by AIDS-infected soldiers during wartime. Sexually transmitted diseases that eventually kill the offspring of women who were raped could be seen as measures intended to prevent births. Women may make an anguished decision not to reproduce in order to refrain from bearing terminally ill children. The mental trauma that the ICTR cases refer to, which could cause victims of rape to forsake procreation, might apply to individuals exposed to chemical or biological agents, or sexually transmitted diseases. Either act could lead to the decision not to give birth. If the intent behind deploying biological weapons or ensuring the transmission of fatal sexually transmitted diseases, such as AIDS, includes destroying a religious, racial, ethnic, or national group, in whole or part, by preventing births, such measures clearly run afoul of Article II(d).

Conclusion

Genocide, the denial of the right of existence of entire groups of human beings, often erupts during vast political or military upheavals. Certain acts of genocide, however, can exist and flourish when—ostensibly nonwartime—policies are aimed at eliminating racial, religious, national, or ethnic groups. Policies supporting racial purity or nationhood, as when transformed into measures to determine who should live and procreate, are acts of genocide. Whether prompted by legislation, or overseen by politicians, doctors, lawyers, or cruel camp commanders, these are acts of genocide. Like massive extermination or killings, the intent to suppress a group prior to its birth and reduce or decimate the membership to a designated purpose is a fundamental crime, one that the Genocide Convention, as recognized in Article II(d), seeks to prevent or punish.

SEE ALSO Nuremberg Laws; Rape

Patricia Viseur Sellers

I am setting forth the above in my personal capacity.
This article represents neither the policies of the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia nor the United Nations.