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What’s the difference between genocide and ethnic cleansing?
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Read more Find a copy online Links to this item Library Ebook Library. Allow this favorite library to be seen by others Keep this favorite library private. Find a copy in the library Finding libraries that hold this item This book confronts the problem of the legal uncertainty surrounding the definition and classification of ethnic cleansing, exploring whether the use of the term ethnic cleansing constitutes a valuable contribution to legal understanding and praxis.
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Customary IHL - Section C. Ethnic cleansing
Despite the universal condemnation of ethnic cleansing that would seem to allow the conclusion that a customary law prohibition of ethnic cleansing has developed, at the current juncture it would hardly seem possible to ascertain the precise content of such a rule. The above-cited condemnations have not been voiced on the basis of a coherent or clearly expressed understanding of how ethnic cleansing is to be defined. Ethnic cleansing by definition entails forcible population transfers that are conducted on a discriminatory basis against specific ethnic or religious groups.
Ethnic cleansing therefore violates an array of individual as well as collective civil, political, economic, social, and cultural rights; if conducted in times of armed conflict it is in violation of important prescriptions of international humanitarian law and, as a violation of international criminal law, it may invoke individual criminal responsibility.
Ethnic cleansing thus inherently violates international law irrespective of whichever violent or terror-inspiring means and methods may be employed in a given case to compel flight of the persecuted group. The employment of such methods may amount to additional human rights violations and crimes of their own including murder, torture, rape and sexual violence, arbitrary detention, and assault.
Gross violations of international law give rise to State responsibility and incur an obligation to make reparations. Specific rights which forcible population transfers violate include the right to self-determination Arts 1 , 55 , 73 , and 76 UN Charter ; Art. Moreover, forcible population transfers inter alia also violate the right of aliens to individual judicial and administrative proceedings in case of expulsion Art. Similarly, Art. It is directed against a specific—ethnically or arguably otherwise definable—group. While these provisions do not expressly mention ethnic origin as a prohibited criterion on which distinctions must not be based but see the reference to ethnic groups in Art.
The non-discrimination clause of Art. Indeed, the entire ICERD is based on the principle of equality of treatment, to which all human beings are entitled. Georgia further argued that these actions had resulted in significant changes in the ethnic composition of South Ossetia and Abkhazia and that the Russian Federation sought to consolidate these changes by preventing the return to South Ossetia and Abkhazia of forcibly displaced ethnic Georgians Application of the International Convention on the Elimination of All Forms of Racial Discrimination [Georgia v Russian Federation] [Order] [15 October ] para.
In this order the ICJ inter alia indicated as a provisional measure that both parties, within South Ossetia and Abkhazia and adjacent areas in Georgia, shall refrain from any act of racial discrimination against persons, groups of persons, or institutions, and do all in their power, whenever and wherever possible, to ensure, without distinction as to national or ethnic origin, the right of persons to freedom of movement and residence within the border of the State at para. Consequently, ethnic cleansing has been designated as a violation of international humanitarian law in a number of UNSC Resolutions , , , and .
Arts 42—56 Regulations concerning the Laws and Customs of War on Land defined and limited the rights of belligerent occupants Occupation, Belligerent.
Practice Relating to Rule 129. The Act of Displacement
According to Art. Moreover, Art. Finally, Art. Notwithstanding, forcible population trans-fers were arguably prohibited already under Art. During World War II the Allies made it clear on several occasions that they considered mass expulsions to be criminal and punishable. Numerous other tribunals also prosecuted Germans for the crime of deporting civilians.
It follows that, unlike evacuations which as temporary measures may exceptionally be justifiable, ethnic cleansing aiming at the permanent dislocation of the target group so as to create ethnically homogenous areas, is not justifiable under any circumstances. According to Rule ICRC Customary Law Study, the deportation or forcible transfer of the civilian population in international armed conflicts as well as the displacement of the civilian population in non-international armed conflicts are also prohibited by virtue of customary international humanitarian law, unless the security of the civilians involved or imperative military reasons so demand.
The Legal Qualification of Ethnic Cleansing
In Milutinovic—albeit in the context of crimes against humanity—the ICTY trial chamber confirmed that there are only two general grounds under international law according to which displacement of persons is legitimate, namely for the security of the civilian population, or for imperative military reasons Milutinovic [Trial Judgment] para. The Chamber based its conclusion upon Art. The Commentary to Art. Evidently, ethnic cleansing could never be justified under any of these exception clauses.
It follows that under certain circumstances ethnic cleansing may amount to a war crime, a crime against humanity, or even genocide. This line of reasoning may rightly be criticized as somewhat unproductive. Essentially the same thing could be said about various other forms of conduct, which, if committed with the required intent and when fulfilling the specific actusreus requirements, would equally amount to war crimes, crimes against humanity, or genocide.
However, ethnic cleansing has become a standing expression that is typically associated with criminal behaviour. At times, ethnic cleansing has been designated as a crime in its own right and occasionally it has forthrightly been equated with genocide. Against this background, the clarifications expressed by the Secretary-General and the High Commissioner of Human Rights are to be welcomed.
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The Nuremberg Tribunal held German leaders guilty of having committed war crimes and crimes against humanity in the form of forced population transfers International Military Tribunals. Unlawful deportation or transfer is also explicitly mentioned in Art. Unlawful deportation or transfer constitute war crimes in international armed conflicts Art.
The very essence of ethnic cleansing being the intention to render an area ethnically homogenous, the mere intention to displace, without the intent to displace the targeted group permanently, would not seem to suffice for ethnic cleansing. Similarily, early pronouncements of the ICTY sporadically evidence an equation of genocide and ethnic cleansing. The term ethnic cleansing does not appear in the Genocide Convention. In fact, during the drafting stages of the Genocide Convention States deliberately resisted attempts to include within the list of punishable acts conduct that would fall under the contemporary notion of ethnic cleansing Schabas Similar pronouncements can be found on the national level.
According to the Supreme Court of Kosovo, the acts committed by the Milosevic regime in could not be qualified as criminal acts of genocide since the essential characteristic of the criminal act of genocide, the intended destruction of a national, ethnical, racial, or religious group, was missing. They have interpreted genocidal intent to comprise also the intention to destroy a particular group as a social unit.
This intention can also be inferred from ethnic cleansing. Notably, the ECtHR, in its judgment of July , considered these issues within the context of its deliberations regarding the principle Nullapoenanullumcrimen sine lege as contained in Art. Such a reading, however, would not seem to exclude per se the possibility of potential overlap between the distinct notions of genocide and ethnic cleansing.
Indeed, in international jurisprudence this possibility has increasingly been admitted. II of the Genocide Convention, and that acts of ethnic cleansing may be significant as indicative of the presence of a specific intent dolusspecialis inspiring those acts Bosnian Genocide Case para. As an example, the ICJ referred to acts described as ethnic cleansing that can be characterized as deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, contrary to Art.
II c of the Convention, provided such action is carried out with the necessary specific intent dolusspecialis. The above-cited statements from the Secretary General and the High Commissioner of Human Rights see above at 12 likewise indicate that, albeit distinct notions, ethnic cleansing and genocide may potentially overlap. The primary consideration underlying ethnic cleansing is the establishment of ethnically homogeneous lands.
This may be achieved by any of a number of methods ultimately even genocide. In this regard, ethnic cleansing may be a portent of genocide to come Schabas As it has been so aptly put by Schabas, genocide may be the last resort of the frustrated ethnic cleanser Schabas Rather, references to ethnic cleansing in the jurisprudence of international courts and tribunals are commonly found in conjunction with deliberations over genocide, crimes against humanity, or war crimes.
Indeed, forced population transfers as a crime against humanity have been the subject of numerous indictments and judgments of the ICTY. Various judgments have found that while deportation and forcible transfer both relate to the involuntary and unlawful evacuation of individuals from the territory in which they reside, the terms are not synonymous; deportation presumes transfer beyond State borders, whereas forcible transfer may also relate to displacements within a State. The expression ethnic cleansing comprises both deportation as well as forcible transfer. Historically, population transfers were once perceived as a stabilizing factor conducive to resolving various types of conflict.