Recent Developments Perhaps one of the most promising areas of genetic engineering, and one warranting scienti-fic, legal, and ethical caution, is that of stem cell research.. The 2009 A
Trang 1Patent Reform bill on September 13, 1988.
The bill would have allowed exempted farmers
to reproduce, use, or sell patented animals, although it prohibited them from selling germ cells, semen, or embryos derived from animals
However, the Senate did not vote on the act, and
so it did not become law
During his campaign for presidency of the United States, then-candidate BARACK OBAMA
pledged to require mandatory labeling of all foods containing (GMOs) In 2009 the Obama administration reaffirmed its commitment to this initiative
Early Developments
In the mid-1990s the international guidelines established by the Declaration of Helsinki were modified to allow certain forms of cell manipu-lation in order to develop germ cells for therapeutic purposes Scientists are also explor-ing genetic engineerexplor-ing as a means of combatexplor-ing the HIV virus
In 1997 the cloning of an adult sheep by Scottish scientist Ian Wilmut brought new urgency to the cloning issue Prior to this development, cloning had been successful only with immature cells, not those from an adult animal The breakthrough raised the prospect of human cloning and prompted an international debate regarding the ethical and legal implica-tions of cloning
Since the cloning of the sheep, nicknamed
“Dolly,” scientists have found the process of cloning to be more difficult than expected After Dolly scientists cloned such animals as cows, pigs, monkeys, cats, and even rare and endan-gered animals The process of cloning is complex, involving the replacement of the nucleus of an egg cell with the nucleus of a cell from the subject that will be cloned This process
is meticulous, and the failure rate is high
However, the efforts in such genetic manipula-tion were not to create or clone animals, but rather to create stronger and healthier animals
Cloning by nuclear transfer and/or transgenic technology involves a process wherein a nucleus from a single cell containing DNA is injected, via nuclear transfer, into an unfertilized egg, with the resulting embryo transferred to the reproductive tract of a healthy specimen
Evidence suggests that cloned animals have experienced significant health problems, leading
to concerns about the vitality of the entire
process Cloned animals tend to be larger at birth, which could cause problems for the female animals giving birth to them The cloned organisms also tend to become obese at middle age, at least in the case of experimental cloned mice Moreover, evidence suggests that cloned animals have died because they do not have sufficientIMMUNITYdefenses to fight disease Dolly lived for six years before dying in February 2003, which is about half of the normal life expectancy of a sheep Proponents
of the cloning experiments suggest that cloning opens a number of possibilities in scientific research, including the nature of certain diseases and the development of genetically enhanced medications Scientists have also successfully cloned endangered animals In 2001 an Italian group cloned an endangered form of sheep, called the European mouflon About a year and
a half earlier, an American company, Advanced Cell Technology, tried unsuccessfully to clone
a rare Asian ox The cloning was initially successful, but the animal died of dysentery 48 hours after birth
In November 2001 scientists first success-fully inserted the DNA from one human cell into another human egg Although the eggs began to replicate, they died shortly after the procedure Human cloning has caused the most intense debate on the issue, with the debate focusing upon scientific, moral, and religious concerns over this possibility Scientists do not expect that human cloning will be possible for several years
In early 2005 the British government granted approval to Professor Ian Wilmut of Edinburgh’s Roslin INSTITUTE (the scientist behind the cloning of“Dolly”) to clone human embryos for medical research Despite palpable public outcry, the government was quick to point out that human reproductive cloning remained illegal, but approval could be granted where embryos were created as a source of stem cells to treat or cure disease (therapeutic cloning) Wilmut planned to use these stem cells for investigation into Motor Neurone Disease (MND)
Recent Developments
Perhaps one of the most promising areas of genetic engineering, and one warranting scienti-fic, legal, and ethical caution, is that of stem cell research The term refers to a process wherein
68 GENETIC ENGINEERING
Trang 2humans (or animals) can regenerate, repair, or
replace their own diseased or aged organs, limbs,
or tissue through the development and cloning
of their own adult stem cells (extracted from
their bone marrow) Early genetic experiments
involved human embryos (embryonic stem
cells), and the scientific community as well as
the general public remained divided on the issue
The form of stem cell research that continues to
spawn controversy evolves around usage of
embryonic stem cells (ESCs) that are removed
and harvested for research when an embryo is
less than 15 days old
Research funding had been politically
polar-ized in the past, with celebrities such as Michael
J Fox and former first lady Nancy Reagan
urging voters to further the cause The issue
gained extensive media coverage during the
2004 U.S presidential election campaigns
be-tween Senator John Kerry (D–Mass.) and
INCUMBENTPresident GEORGE W.BUSH The Bush
administration firmly reiterated its position that
ESC research posed an ethical question, and that
taxpayer dollars would not be used to fund the
destruction of human embryos, irrespective of
their origin In the end,FEDERALsupport for such
research was granted, but only using embryos
that had been donated from in vitro fertilization
clinics and already in federal research custody,
that would otherwise have been discarded In
March 2009 President Barack Obama signed
into lawEXECUTIVE ORDERNo 13505, Removing
Barriers to Responsible Scientific Research
Involving Human Stem Cells, which expressly
revoked the previous administration’s restrictive
Executive Order 13435 of June 2007
The 2009 Albert Lasko Basic Medical
Re-search Award for advancements in genetic
engineering research went to regenerative
tech-nology advances that do not rely human
reproductive embryos, but rather use transferred
DNA coding capable of instructing special cells to
form stem cells, which, in turn, are coded to
regenerate as specific organs or tissues The
related Lasko Clinical Medical Research Award
went for stem cell research leading to a
revolutionary cancer treatment for certain types
of leukemia The global market for such
advance-ments, according to Genetic Engineering &
Biotechnolgy News, was estimated at $700 million
A new field of genetic engineering involves
the creation of synthetic genes (synthetic
genomics) As of 2009, their application was
limited to non-human experiments involving alternative energy resources Likewise, genetic manipulation of existing crops has resulted in the development of experimental crop plants that utilize nitrogen more efficiently, thus requiring less fertilizer in poor soils Salt-tolerant and drought-Salt-tolerant crops are also under development Of note is the research into turning plant wastes into fuel and boosting oil yields from algae grown in ponds
Significant State Laws
Certain states have passed laws restricting genetic engineering By the early 1990s, six states had enacted laws designed to curb or prohibit the spread of genetically engineered products in the marketplace (see Ill Ann Stat
ch 430, § 95/1 [Smith-Hurd 1995]; Me Rev
Stat Ann tit 7, § 231 et seq.[West 1995]; Minn
Stat Ann § 116C.91 et seq.[West 1995]; N.C
Gen Stat § 106-765-780 [Supp 1991]; Okla
Stat Ann tit 2, §§ 2011–2018 [West 1996];
Wis Stat Ann § 146.60 [West 1996]) North Carolina’s law sets the most comprehensive restrictions on genetic engineering Resembling the earlier measures proposed by organizations such as England’s Genetic Manipulation Advi-sory Group, it requires scientists to hold a permit for any release of a genetically engi-neered product outside a closed-containment enclosure The North Carolina statute has been cited as a possible model for advocates of comprehensive federal regulations
In September 2008 California enacted its first law related to genetic engineering, the Farmers Protection Act, AB541 The bill protects farmers from lawsuits relating to the drift (through weather elements) of GE pollen or seed onto their property, often contaminating their crops with patent-protected genetically modified seeds
or pollens
FURTHER READINGS Beauchamp, Tom L., and James F Childress 1983.
Principles of Biomedical Ethics Oxford and New York:
Oxford University Press.
“Better World: Learning to Love Genetic Engineering.” New Scientist, September 14, 2009.
“2009 Lasko Awards Recognize Promise of Stem Cells-Global Market Could Top $700 Million ” Genetic Engineering & Biotechnolgy News, September 14, 2009.
Darvall, Leanna 1993 Medicine, Law, and Social Change.
Aldershot, England: Dartmouth.
Harder, Ben 2002 “Scientific Pitfalls Complicate Cloning Debate.” National Geographic.
GENETIC ENGINEERING 69
Trang 3Mason, John Kenyon, and R.A McCall-Smith 1994 Law and Medical Ethics London: Butterworths.
Mason, John Kenyon, and R.A McCall-Smith 1987.
Butterworths Medico-Legal Encyclopedia London: But-terworths.
Paley, Eric R 1993 “Rethinking Utility: The Expediency of Granting Patent Protection to Partial CDNA Sequences ” Syracuse Law Review.
Office of the White House 2009 “Executive Order No.
13505, Removing Barriers to Responsible Scientific Research Involving Human Stem Cells ” Text available online at http://www.whitehouse.gov/ /Removing- Barriers-to-Responsible-Scientific-Research-Involving-Human-Stem-Cells/; website home page: http://www.
whitehouse.gov/ (accessed August 10, 2009) Ratnoff and Smith 1968 “Human Laboratory Animals:
Martyrs for Medicine ” Fordham Law Review 36.
Smith, George P., II 1993 Bioethics and the Law Lanham, Md.; New York; and London: University Press of America.
Smith, George P., II 1981 Genetics, Ethics, and the Law.
Gaithersburg, Md.: Associated Faculty Press.
Trivedi, Bijal 2001 “Human Embryos Cloned by U.S.
Company, But Don ’t Survive.” National Geographic.
CROSS REFERENCE Genetic Screening.
GENETIC SCREENING The scientific procedure of examining genetic makeup to determine whether an individual possesses genetic traits that indicate a tendency toward acquiring or carrying certain diseases or conditions In 2001, scientists first published the complete human genome map (a human’s genetic blueprint), greatly advancing the capability and use
of genetic screening, manipulation, and replication
Genetic testing of humans facilitates the discovery and treatment of genetic defects, both before and after birth CIVIL RIGHTS
proponents, employers, and those who suffer from genetic diseases have debated GENETIC SCREENING because the procedure poses practi-cal and theoretipracti-cal legal, economic, and ethipracti-cal problems Some theorists, for example, have suggested that genetic screening could improve society if it were made mandatory before hiring
or MARRIAGE Others say that to mandate this practice would be unconstitutional Genetic screening is a dynamic, rather than static, field
of medical and scientific experimentation and application that clearly involves scientific, legal, and ethical interests that may differ or compete Accordingly, each new milestone or discovery warrants commensurate review of these interests for both beneficial and poten-tially detrimental consequences
Federal and State Legislation
The earliest national and state legislation concerning genetic screening was enacted in the 1970s The legislation focused on voluntary genetic testing The laws generally protect the interests of those who suffer from genetic disease, offer FEDERAL and state subsidies for counseling, and support research in genetic diseases
In 1976 Congress passed the National Sickle Cell Anemia, Cooley’s Anemia, Tay-Sachs, and Genetic Diseases Act (42 U.S.C.A § 300b-1
et seq.), which permitted the use of public funds for voluntary genetic screening and counseling programs State legislatures passed measures, with certain exceptions, requiring genetic screening of school-age children for sickle cell anemia New York enacted a law that provides for premarital testing to identify carriers of the defective sickle cell gene (N.Y Dom Rel Law
§13aa[McKinney 1977]) Other states provided for voluntary premarital testing for the sickle cell disease (e.g., Cal Health & Safety Code
§ 325-331[West 1978]); Ga Code Ann § 19-3-40 [1974]) Such legislation often included provi-sions for voluntary, funded counseling (see Va Code Ann § 32.1-68[Michie])
With the advent of new technology in genetics came increasing concern about its application In 1996 Congress passed the all-encompassing HEALTH INSURANCE Portability and Accountability Act (HIPAA) (P.L.104-191) One key provision barred group INSURANCE
plan administrators from using individual employees’ genetic information as a factor when writing group policies (unless such information already resulted in the diagnosis of a illness) However, the bill addressed neither individual policies and premiums nor the use of genetic information in the workplace
Consequently, in 2000 PresidentBILL CLINTON
signed EXECUTIVE ORDER 13145, prohibiting
DISCRIMINATION in federal employment based
on genetic information However, according
to the National Human Genome Research
INSTITUTE (a division of the National Institutes
of Health), 39 states had enacted bills addres-sing genetic discrimination in health insurance (see, e.g., Alabama Code §27–53–2,4; Alaska Statutes Annotated §21.54.100; Louisiana
REVISED STATUTES Annotated §22.213.6,7, and so on) Another 27 states had passed bills addres-sing genetic discrimination in the workplace
70 GENETIC SCREENING
Trang 4The Constitution, Civil Rights,
and Scientific Theory
In 1981 and again in 2002, Congress held
hearings to identify potential problems of
widespread genetic screening Subsequent legal
and medical discussion has focused on the
ethics of certain practices such as eugenics, a
form of GENETIC ENGINEERING that involves the
systematic programming of genes to create a
specific life form or the use of living animals for
experimentation House and Senate committees
had pending bills before Congress (S 318,
S 382) hoping to create national legislation
addressing prohibited uses of genetic screening
One potential problem with genetic
screen-ing arises in its use by employers Although an
employer considering hiring an individual with
a genetic disease often relies primarily on
economic issues, the practice of screening
prospective employees and eliminating those
with defective genes may be discriminatory
because some genetic diseases afflict certain
ethnic and racial groups more often than others
G-6-PD DEFICIENCY, for example, occurs most
frequently in blacks and persons of
Mediterra-nean descent If screening excludes persons with
G-6-PD deficiency, it will have a stronger effect
on those groups This practice could violate
Title VII of the Civil Rights Act of 1964 (42 U.S
C.A §§ 2000e et seq.)
In early 2001 the first federal court lawsuit
of its kind was filed against a private company
alleging violations under the Americans with
Disabilities Act (ADA), P.L 101-336 and several
state laws According to the suit, which settled
in 2002, employer Burlington Northern Santa
Fe Railroad began furtively testing the blood of
workers with carpal tunnel syndrome At least
18 employees claimed to have been subjected to
nonconsensual genetic testing Still, other courts
have permitted limited use of genetic screening
as an adjudicatory aid in disputes In a South
Carolina CHILD CUSTODYcase, a judge ordered a
woman to undergo genetic testing for
Hunting-ton’s disease, because the result could impact
her ability to care for the children While some
experts would argue that these factors are
important to proper legal and personal decision
making, others question where the line will be
drawn
Nevertheless, some legal scholars maintain
that compulsory genetic screening programs
violate the Constitution They assert, for example,
that taking a child’s blood sample constitutes a physical invasion of the body in violation of the
FOURTH AMENDMENT Compulsory counseling pro-grams for parents, they say, interfere with the fundamental rights to marry and procreate
The critics of screening propose that less intrusive voluntary programs together with education could accomplish the same objectives
Even though genetic screening involves at least a minor intrusion into an individual’s body and may involve a search within the meaning of the Fourth Amendment, proponents of genetic science maintain that such searches are not unreasonable if executed in a proper manner and justified by a legitimateSTATE INTEREST(see Schmerber v California, 384 U.S 757, 86 S Ct
1826, 16 L Ed 2d 908 [1966] [holding that a compulsory blood test to determine INTOXICA-TION of an automobile driver is not an unreasonable search]) Proponents of manda-tory screening and counseling agree that these practices could interfere with the right to procreate However, they suggest that the state’s interests in improving the quality of a popula-tion’s genetic pool in order to minimize physical suffering and reduce the number of economically dependent persons justifies the
INFRINGEMENTon the civil liberties of individuals
Amniocentesis and the Abortion Debate
A specific form of genetic screening known as amniocentesis raised fundamental CONSTITUTI-ONAL issues when first introduced; in the twenty-first century, however, it is considered standard operating procedure for older women
to undergo amniocentesis when they have
A doctor and patient discuss genetic screening for Down’s syndrome As a result
of cases such as Haymon v.
Wilkerson, doctors have increased their use of genetic counseling and fetal screening PHOTOEDIT GENETIC SCREENING 71
Trang 5conceived for the first time Amniocentesis consists of inserting a needle through the abdominal wall of a pregnant woman into the amniotic sac containing the fetus, withdrawing a sample of the sac fluid, analyzing it for genetic characteristics, and determining whether the fetus has certain genetic defects If amniocentesis reveals a genetically defective fetus, the parents may choose to abort it or carry it to term
Children born with genetic defects have brought legal claims against their parents for the tort of
WRONGFUL LIFE, orWRONGFUL BIRTH Before the advent of amniocentesis, wrong-ful life actions generally failed (Pinkney v
Pinkney, 198 So 2d 52, [Fla App 1967]
[refusing to recognize tort of wrongful life for extramarital child plaintiff against father] and Zepeda v Zepeda, 41 Ill App 2d 240, 190 N
E.2d 849[1963], cert denied, 379 U.S 945, 85 S
Ct 444, 13 L Ed 2d 545 [1964]) The development of procedures such as amniocen-tesis, coupled with a shift in societal attitudes towardABORTION, has led to successful claims for wrongful life For example, in Haymon v
Wilkerson, 535 A.2d 880 (D.C App 1987), a mother brought a wrongful birth action against
a physician after her child was born with Down’s syndrome The court of appeals held that the mother was entitled to recover extraordinary medical and health care expenses incurred as a result of the child’s mental and physical abnormalities As a result of cases such
as Haymon, doctors have increased their use of genetic counseling and prenatal testing
The Future of Genetic Screening
In 1993 the Nobel Prize for chemistry was awarded to Kary Mullis for his development
of a technique known as polymerase chain reaction, a method for rapidly isolating and copying any DNA sequence out of a sample that may contain thousands of other genes
This technology is rapidly developing for application not only in eugenics but also for gene manipulation to correct defective gene sequences in many diseases or conditions (nanotechnology) Researchers at Oxford Uni-versity’s Wellcome Trust Centre for Human Genetics announced in 2003 the development
of a methodology for concurrently evaluating the functional significance of millions of noncoding polymorphisms that exist in the human genome This development is expected
to contribute greatly to the determination of
genetic susceptibility to disease and assessing future health risk through genetic screening
On the legal front, Congress passed the Genetic Information Nondiscrimination Act of
2008 (GINA), (Pub.L 110-343), in 2008 The law addresses concerns about discrimination that might keep some people from getting useful genetic tests that could benefit their health The law also enables people to take part in research studies without worrying that their DNA infor-mation might be used against them when applying for health insurance or for a job However, the law does not cover life insurance,
DISABILITY insurance, and long-term care insur-ance It sets a minimum standard of protection that must be met in all states, but it does not weaken the protections provided by any state law concerning these issues The law also established the Genetic Nondiscrimination Study Commis-sion, which will be appointed in 2014 to review the developing science of genetics and to make recommendations to Congress regarding whether
to provide a disparate-impact CAUSE OF ACTION
under this statute
FURTHER READINGS
“A Comparison of Enacted State Genetic Discrimination Legislation ” 2001 Council for Responsible Genetics (summer) Available online at www.gene-watch.org (accessed July 26, 2003).
Hawkins, Dana 2001 “The Dark Side of Genetic Testing.” U.S News & World Report 130.
Higgins, Michael 1998 “Tempest in a Tube.” ABA Journal 84.
Jones, Nancy 2008 Genetic Discrimination Hauppauge, New York:Nova Science Publishers.
Reilly, Philip R 1993 “Public Policy and Legal Issues Raised
by Advances in Genetic Screening and Testing ” Suffolk University Law Review (winter).
Stewart, Alison 2007 Genetics, Health Care and Public Policy.New York: Cambridge University Press CROSS REFERENCES
American Medical Association; Disability Discrimination; Employment Law; Fetal Rights; Privacy; Search and Seizure.
GENEVA CONVENTIONS, 1949 The horrors of WORLD WAR II led nations to recognize that existing rules governing the conduct of warfare were inadequate to cover a prolonged and expanded conflict The resulting efforts to codify new restrictions on belligerent conflict led to the four conventions concluded
at Geneva, Switzerland, in 1949 These four treaties related to (1) the treatment of prisoners
72 GENEVA CONVENTIONS, 1949
Trang 6of war; (2) the alleviation of the suffering of
wounded and sick combatants in the field;
(3) the alleviation of the suffering of the
wounded, sick, and shipwrecked members of
the armed forces at sea; and (4) the protection
of civilian persons during war
The International Committee of the Red
Cross was active in organizing the conferences
and preparing draft treaties that resulted in the
final conventions In addition, the International
Red Cross assumed responsibility under
por-tions of the convenpor-tions to serve as a neutral
party to observe compliance with the
conven-tions and to perform humanitarian tasks
According to Swedish researchers, 95
per-cent of all deaths inWORLD WAR Iwere suffered
by soldiers In World War II, the figure dropped
to 50 percent—the remaining deaths were those
of civilians when their cities (e.g., London,
Coventry, Dresden, Hiroshima, Nagasaki) were
bombed Unfortunately, the statistics worsened
The civilian deaths from the Korean is usually
estimated at two to three million, and estimates
place the number of civilian deaths from the
VIETNAM WARat approximately 365,000 Between
1974 and 1977 the Diplomatic Conference on
the Reaffirmation and Development of
Interna-tional Humanitarian Law, meeting in Geneva,
adopted two protocols to be added to the 1949
Geneva Conventions One applies to
interna-tional armed conflicts and the other to
non-international armed conflicts Both significantly
provide for enhanced protection of the
non-combatant, civilian populations
Yet another concern for the effectiveness of
the Geneva Conventions surfaced over the years
It became increasingly evident that, despite
“grave breaches” of protocols, the Geneva
Conventions lacked enforcement power
More-over, those nations ratifying the conventions (59
initial signatories in 1949) were usually not the
offenders (With the end of theCOLD WARand the
collapse of the Soviet Union, each of the newly
independent states that succeeded the former
Soviet Union has adhered to the conventions
and, excepting Lithuania and Azerbaijan, the
additional protocols.) Many of the crimes against
humanity were (and are) being committed by
warring factions within a country, resulting in
genocides, ethnic or religious antagonism, and
ultimately the collapse of state structures In
these circumstances, RATIFICATION by the prior
stateENTITYmeans little
With a world community that in 2010 comprised more than 180 sovereign states, a major overhaul of the Geneva Conventions remained elusive However, the world commu-nity has united to create newer entities such as the International Criminal Tribunal for the Former Yugoslavia in 1993 and the adoption in Rome of the STATUTE of the INTERNATIONAL CRIMINAL COURT in 1998 These entities have
ADJUDICATION and sentencing authority, which gives some enforcement power to prosecute and punish those who commit the crimes against humanity outlined in the conventions and protocols However, the power to identify, pursue, and apprehend suspected violators varies, depending on the circumstances
FURTHER READINGS Bugnion, Francis 2000 “The Geneva Conventions of 12 August 1949: From the 1949 Diplomatic Conference to the Dawn of the New Millennium ” International Affairs 76.
Goldstein, Richard 2002 “International Law and Justice in America ’s War on Terrorism.” Social Research 69.
Jinks, Derek 2008 The Rules of War: The Geneva Conventions in the Age of Terror New York: Oxford Univ Press.
Pictet, Jean S., ed 1958 The Geneva Conventions of 12 August 1949: Commentary Geneva, Switzerland: Inter-national Committee of the Red Cross Available online
at http://www.loc.gov/rr/frd/Military_Law/Geneva_
conventions-1949.html; website home page:
http://www.loc.gov (accessed September 4, 2002).
CROSS REFERENCES International Court of Justice; International Law.
GENOCIDE The crime of destroying or conspiring to destroy a national, ethnic, racial, or religious group
GENOCIDEcan be committed in a number of ways, including killing members of a group or causing them serious mental or bodily harm, deliberately inflicting conditions that will bring about a group’s physical destruction, imposing measures on a group to prevent births, and forcefully transferring children from one group
to another
Genocide is a modern term Coined in 1944
by Polish scholar ofINTERNATIONAL LAWRaphael Lemkin, the word is a combination of the Greek genos (race) with the Latin cide (killing) In his book, Axis Rule in Occupied Europe, Lemkin offered the definition of“a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national
GENOCIDE 73
Trang 7groups, with the aim of annihilating the groups themselves” (Lemkin 1944, 79) The book studied in particular detail the methodology of the Nazi German genocide against European Jews, among whom were his parents Later, he served as an advisor to both the U.S War Department and the NUREMBERG TRIALS of Nazi leaders for WAR CRIMES He dedicated his life to the development of international conventions against genocide
The contemporary archetype of modern genocide is the Holocaust, in which German Nazis starved, tortured, and executed an
estimat-ed six million European Jews, as well as millions
of other ethnic and social minorities, as part of an effort to develop a master Aryan race Immedi-ately upon coming to power in Germany in 1933, the Nazis began a systematic effort to eliminate Jews from economic life The Nazis defined persons with three or four Jewish grandparents as being Jewish, regardless of their religious beliefs
or affiliation with the Jewish community Those with one or two Jewish grandparents were known
as Mischlinge, or mixed-breeds As non-Aryans, Jews and Mischlinge lost their jobs and their Aryan clients, and were forced to liquidate or sell their businesses
With the onset ofWORLD WAR IIin 1939, the Germans occupied the western half of Poland, forcing nearly two million Jews to move into crowded, captive ghettos Many of these Jews died of starvation and disease In 1941 Germany invaded the Soviet Union The Nazis dispatched 3,000 troops to kill Soviet Jews on the spot, most often by shooting them in ditches or ravines on the outskirts of cities and towns
Meanwhile the Nazis began to organize what they termed a final solution to the Jewish question in Europe German Jews were required
to wear a yellow star stitched on their clothing and were deported to ghettos in Poland and the Soviet Union Death camps equipped with massive gas chambers were constructed at several sites in occupied Poland, and large crematories were built to incinerate the bodies Ultimately the Nazis transported millions of Jews to concentration camps, in crowded freight trains Many did not survive the journey Once
at the death camps, many more died from starvation, disease, shooting, or routine gas-sings, before Allied forces liberated the survivors and forced the Nazis to surrender in 1945 Following the exterminations of World War
II, theUNITED NATIONSpassed a resolution in an effort to prevent such atrocities in the future Known as the Convention on the Prevention and Punishment of the Crime of Genocide (78 U.N.T.S 278 [Dec 9, 1948]), the resolution recognized genocide as an international crime and provided for its punishment Proposed and partially formulated by Lemkin, who had lobbied nations tirelessly for its adoption, the convention also criminalized CONSPIRACY to commit genocide, direct and public incitement
to commit genocide, attempted genocide, and complicity in genocide Its definition of geno-cide specified that a person must intend to destroy a national, ethnic, racial, or religious group Thus, casualties of war are not necessar-ily victims of genocide, even if they are all of the same national, ethnic, racial, or religious group The convention requires signatory nations to enact laws to punish those found GUILTY of genocide, and allows any signatory state to ask the United Nations to help prevent and suppress acts of genocide
The convention was, by itself, ineffective Article XI of the convention requires the United Nations’ member countries to ratify the DOCU-MENT, which many did not do for nearly 50 years The United States did not ratify the convention until 1988 Before doing so, it conditioned its obligations on certain understandings: (1) that the phraseINTENT to destroy in the convention’s definition of genocide means“aSPECIFIC INTENTto destroy”; (2) that the term mental harm used in the convention as an example of a genocidal tactic, means“permanent impairment of mental faculties through drugs or torture”; (3) that an
The bodies of
Rwandan genocide
victims before burial
in a mass grave In
just 100 days in 1994,
an estimated 800,000
Tutsis and moderate
Hutus were killed
by members of the
Hutu majority.
AP IMAGES
74 GENOCIDE
Trang 8agreement to grantEXTRADITION, which is part of
the convention, extends only to acts recognized
as criminal under both the country requesting
extradition and the country to which the request
is made; and (4) that acts in the course of armed
conflict or war do not constitute genocide unless
they are performed with the specific intent to
destroy a group of people
On November 4, 1988, the United States
passed the Genocide Implementation Act of 1987
(18 U.S.C.A § 1091[1994]) This act created “a
new FEDERALoffense that prohibits the
commis-sion of acts with the specific intent to destroy, in
whole or in substantial part, a national, ethnic,
racial or religious group; and to provide adequate
penalties for such acts” (S Rep No 333, 100th
Cong., 2d Sess 1[1988], reprinted in 1988 U.S.C
C.A.N 4156)
In 1990 the U.S Congress passed the
IMMIGRATIONand Nationality Act (INA) (8 U.S
C.A § 1182), a comprehensive reform of
immigration laws As part of this reform,
Congress mandated that ALIENS guilty of
geno-cide are excluded from ENTRY into the United
States, or deported when discovered However,
the INA lacks a clear definition of genocide,
referring only to the U.N convention drafted
more than 40 years earlier
The unclear definition of genocide makes its
prevention and punishment difficult Whether
massive, and often barbaric, loss of life within
ethnic, national, religious, or racial groups rises
to the crime of genocide—or is simply an
unpleasant by-product of war—is open to
debate Until international trials in the late
1990s, the Holocaust of Nazi Germany was the
only example recognized throughout the
inter-national community as genocide
Apart from the Holocaust, there have been a
number of other events that at least some
commentators have described as genocide
These include the devastation of numerous
Native American tribes through battles with
European settlers and exposure to their diseases;
the killing of some 1.5 million Armenians by the
Turks during and afterWORLD WAR I; the deaths
of approximately 1.7 million Cambodians
under the Khmer Rouge regime in Cambodia
between 1975 and 1979; the killing of hundreds
of thousands of civilians during the VIETNAM
WAR; the deaths of more than 20,000 Christian
Orthodox Serbs, Muslims, and Roman Catholic
Croats in “ethnic cleansing” arising out of the
civil war in Croatia and Bosnia-Herzegovina during the early 1990s; and the deaths of more than one million Rwandan civilians in ethnic clashes between the Hutu and Tutsi peoples, also during the early 1990s
During the 1990s, the United Nations Security Council twice convened international tribunals to prosecute genocide and other flagrant humanitarian violations The Interna-tional Criminal Tribunals for Former Yugoslavia (ICTY) and Rwanda (ICTR) were convened in
1992 in Arusha, Tanzania, and in 1994 in the Hague, The Netherlands, respectively As the first courts of their type since World War II, their work, which sought to fix personal responsibility for mass murder, continued into the new millennium
Given the vast scope and complicated nature of trying crimes of genocide, neither body has moved swiftly By 2003 the ICTR had indicted 52 people and had completed nine trials stemming from the Rwanda slaughter, while also becoming the first international court in history to hand down a CONVICTION
for genocide By comparison, the ICTY had indicted 87 people and had concluded 23 trials
During 2002 worldwide attention focused upon the opening of the ICTY’s long-awaited trial of former Serbian President Slobodan Milosevic,
ACCUSEDof ordering atrocities in Bosnia, Croatia, and Kosovo at various times between 1991 and
2001 Arrested after flouting the tribunal’s
INDICTMENTfor two years, Milosevic’s delivery to the Hague in 2001 made him the highest-ranking European leader since the Nazi era to face trial for war crimes
Humanitarians, politicians, and interna-tional legal scholars are struggling to find an effective way to prevent and punish genocide
Many have called for revising the genocide convention to better meet the needs of the current political, social, and economic environ-ment, by creating a broader definition of genocide and establishing procedural guidelines
Still others have proposed international military
INTERVENTION in order to prevent or stop genocide
FURTHER READINGS BBC News 2003 February 20; “The Charges against Milosevic.” BBC News World Edition Available online
at http://www.news.bbc.co.uk/2/hi/europe/1402790.stm;
website home page: http://www.news.bbc.co.uk (accessed July 26, 2009).
GENOCIDE 75
Trang 9Chrisopoulos, Paul J 1995 “Giving Meaning to the Term
‘Genocide’s as it Applies to U.S Immigration Policy.”
Loyola of Los Angeles International & Comparative Law Journal (October).
Heidenrich, John G “The Father of ‘Genocide’—and Its Biggest Foe ” The Christian Science Monitor (June 27, 2001).
Kennicott, Philip “Nearly Nine Decades after the Massacres, a Battle Still Rages to Define ‘Genocide’.”
The Washington Post (November 24, 2002) Available online at http://www.washingtonpost.com/ac2/wp-dyn?
pagename=article&node=&contentId=A26543-2002 Nov22¬Found=true; website home page: http://
www.washingtonpost.com (accessed July 26, 2009).
Lemkin, Raphael 1944 “Genocide.” In Axis Rule in Occupied Europe: Laws of Occupation—Analysis of Government—Proposals for Redress Washington, D.C.:
Carnegie Endowment for International Peace Available online at http://www.preventgenocide.org/lemkin/
AxisRule1944-1.htm; website home page: http://www.
preventgenocide.org (accessed July 26, 2009).
Yacoubian, George S., Jr 2003 “Evaluating the Efficacy of the International Criminal Tribunals for Rwanda and the Former Yugoslavia ” World Affairs 165 (January 1).
CROSS REFERENCES Hitler, Adolf; International Law; Nuremberg Trials; United Nations.
GENTLEMEN’S AGREEMENT Although agreements between individuals often create legally binding commitments, instances may arise in which mutual promises yield no legally enforceable agreement Sometimes called
“gentlemen’s agreements,” parties may honor them because moral obligations compel obser-vance or because future relations will be more difficult if the present arrangement is broken
International organizations likewise may de-pend on such informal arrangements so as to maintain COMITYamong members
Occasionally the enabling treaties that create
an international organization will leave some procedural orVOTINGmatter unresolved Rather than amend the formal DOCUMENT, which is usually a difficult task, an informal working agreement will develop to resolve a particular problem As long as the consensus holds to honor the informal agreement, there is no need
to embody it into a legal document
GERRYMANDER The process of dividing a particular state or territory into election districts in such a manner as
to accomplish an unlawful purpose, such as to give one party a greater advantage
State constitutions or amendments to those constitutions empower state legislatures, and sometimes state or federal courts, to apportion and reapportion election districts This gener-ally means that states may draw and redraw the lines around election districts for offices ranging from local to congressional It can also mean that states may calculate and recalculate the numbers of representatives in election districts Any form of unfairAPPORTIONMENTmay be called gerrymandering, but generally, aGERRYMANDERis understood to be invalid redistricting
Redistricting is usually used to adjust the populations of election districts to achieve equality in representation among those districts Sometimes, however, it is used for unlawful ulterior motives Then it crosses the line to become gerrymandering
The classic example of a gerrymander is a legislative redistricting scheme designed to benefit the party in power Assume that a state legislature has redrawn its VOTING districts to divide and fold all communities that vote predominantly Democratic into larger commu-nities that vote Republican This is a political gerrymander Such redistricting decreases the likelihood of Democratic representation in the state legislature because the Democratic vote in each new district is diluted by the predominant Republican vote
The term gerrymander was inspired by an
1812 Massachusetts redistricting scheme that favored the party of Governor Elbridge Gerry Portraitist Gilbert C Stuart noted that one new election district had the shape of a salamander Stuart drew an outline of the district, put a salamander’s head on one end, and called the creature a Gerry-mander
The gerrymander has been used by state legislatures ever since It thrived all the way through the 1950s, when many southeastern states were reapportioned in an effort to weaken the voting power of African Americans This usually involved the drawing of complex, irregularly shaped election districts A legislature could divide and fold predominantly African American communities into surrounding dis-tricts with large blocs of white voters Such schemes diluted the vote of African Americans, placed their representation in faraway commu-nities, and effectively prevented African Amer-icans from expressing their collective will in
ELECTIONS
76 GENTLEMEN’S AGREEMENT
Trang 10In 1960 the U.S Supreme Court struck down
the first gerrymander scheme it reviewed, in
Gomillion v Lightfoot, 364 U.S 339, 81 S Ct 125,
5 L Ed 2d 110 (1960) In Gomillion, the
Alabama legislature altered the city limits of
Tuskegee to remove all but four of the city’s 400
African American voters It changed the city
limits of Tuskegee, for election purposes, from a
square to, according to the Court,“an uncouth
twenty-eight-sided figure.” According to the
Court, the redistricting discriminated against
African Americans and violated the EQUAL
PROTECTIONClause of theFOURTEENTH AMENDMENT
Gomillion did not establish that the drawing
of election districts was always a proper matter
for the courts Before Gomillion, the Court had
refused to review gerrymandering claims,
hold-ing that the issue of reapportionment was
political and beyond the reach of the courts
The Court heard Gomillion only because the
issue of racial DISCRIMINATION lifted the
contro-versy out of the arena traditionally beyond the
power of the courts
In 1962 the U.S Supreme Court took the
first step in establishing its right to review all
districting, with its decision inBAKER V.CARR, 369
U.S 186, 82 S Ct 691, 7 L Ed 2d 663 At issue
in Baker was a decades-old Tennessee
appor-tionment According to urban Tennessee voters,
the outdated apportionment was a “silent
gerrymander” or a “malapportionment.”
Al-though the population in urban election
districts had increased, Tennessee had made
no changes to reflect this population shift; thus,
sparsely populated rural districts had the same
representation in the state legislature as did
densely populated urban districts The Court in
Baker did not reach a decision on the validity of
the Tennessee districting; Baker established only
that the issue of districting was JUSTICIABLE and
not merely a political question
The Court next established the“one person,
one vote” requirement for FEDERALelections, in
Wesberry v Sanders, 376 U.S 1, 84 S Ct 526, 11
L Ed 2d 481 (1964) This requirement, which
held that voting districts should be roughly
equal in population, was extended to the states
inREYNOLDS V.SIMS, 377 U.S 533, 84 S Ct 1362,
12 L Ed 2d 506 (1964) In Wesberry, the Court
struck down a Georgia redistricting statute (Ga
Code § 34-2301) because its voting districts
were unequal in population Georgia’s Fifth
Congressional District, largely populated by
African Americans, was two to three times the size of other districts in the state As a result, the African Americans in the Fifth District received less representation in Congress than persons in the other districts According to the Court, this violated Article I, Section 2 of the U.S
CONSTITUTION, which states that U.S Represen-tatives were to be “apportioned among the several States according to their respective Numbers” (Wesberry)
Since these seminal cases, courts have become intimately involved in the review of apportionment, reapportionment, and redis-tricting In their review of districting schemes, courts use CENSUS figures to compare election district populations for equality of representa-tion Courts also examine census figures for racial populations and compare overall percen-tages with percenpercen-tages in election districts
Courts have developed redistricting princi-ples that favor compact, contiguous election districts that respect already existing municipal
BOUNDARIES Gerrymanders may be easy to recognize because they usually produce elec-tion districts that are irregularly shaped
However, not all irregularly shaped election districts are the result of gerrymanders Indeed, Congress has encouraged the creation of
“majority-minority” voting districts, which often call for an inventive drawing of election districts Majority-minority districts are those
Portraitist Gilbert
C Stuart’s depiction
of an 1812 Massachusetts redistricting scheme favoring the political party of Governor Elbridge Gerry was the inspiration for the term gerrymander LIBRARY OF CONGRESS GERRYMANDER 77