Gale Encyclopedia Of American Law 3Rd Edition Volume 5 P9 potx

Patent 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 reaffirme d 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 engineering as a means of combating 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 prompte d 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 birt h to them. The cloned organisms also tend to become obese at middle age, at least in the case of experimental cloned mice. Moreover, evidence sugges ts that cloned animals have died because they do not have sufficient IMMUNITY defenses 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 68 GENETIC ENGINEERING humans (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 INCUMBENT President 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, FEDERAL support 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 law EXECUTIVE ORDER No. 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-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 engineere d 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION GENETIC ENGINEERING 69 Mason, 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 REFE RENCE 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’sgenetic 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 theoretical legal, economic, and ethical problems. Some theoris ts, for exam ple, 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 scre ening 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 counse ling 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 President BILL 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 N ational 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 70 GENETIC SCREENING The 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 CUSTODY case, 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 legitimate STATE 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 INFRINGEMENT on 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION GENETIC SCREENING 71 conceived 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 toward ABORTION, 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’sWellcomeTrustCentreforHuman Genetics announced in 2003 the development of a methodology for con currently evaluating the functional significance of millions of noncoding polymorp his ms 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 i ssues. 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 72 GENEVA CONVENTIONS, 1949 of 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 conventions 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 in WORLD WAR I were 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 WAR at 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 the COLD WAR and 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 state ENTITY means little. With a world community that in 2010 comprised more than 180 sover eign 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. GENOCIDE can 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 of INTERNATIONAL LAW Raphael 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION GENOCIDE 73 groups, 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. Late r, 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 of WORLD WAR II in 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 w ere 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, the UNITED NATIONS passed 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 phrase INTENT to destroy in the convention’s definition of genocide means “a SPECIFIC INTENT to 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 74 GENOCIDE agreement to grant EXTRADITION, 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 FEDERAL of fense 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 IMMIGRATION and 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 punishme nt 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 after WORLD 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, ACCUSED of ordering atrocities in Bosnia, Croatia, and Kosovo at various times between 1991 and 2001. Arrested after flouting the tribunal’s INDICTMENT for two years, Milosevic’sdeliveryto 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). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION GENOCIDE 75 Chrisopoulos, 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&notFound=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 REFE RENCES 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 COMITY among members. Occasionally the enabling treaties that create an international organization will leave some procedural or VOTING matter 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 unfair APPORTIONMENT may be called gerrymandering, but generally, a GERRYMANDER is 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 76 GENTLEMEN’ S AGREEMENT In 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’s400 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 PROTECTION Clause of the FOURTEENTH 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 revie w 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 traditiona lly 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 in BAKER 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 apport ionment 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 FEDERAL elections, 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 in REYNOLDS 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 percentages 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION GERRYMANDER 77 . Lemkin offered the definition of “a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION GENOCIDE. related to (1) the treatment of prisoners GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 72 GENEVA CONVENTIONS, 1949 of war; (2) the alleviation of the suffering of wounded and sick combatants. 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD