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Ethnic cleansing and genocide

Douglas Singleterry, October 25, 2010
A year and a half after Serbia was found not to have committed genocide in Bosnia and Herzegovina, the International Court of Justice (ICJ) gave Croatia the green light to pursue similar claims against Serbia.

Croatia is suing Serbia for a “form of genocide” characterized as “ethnic cleansing.” It is alleged that Belgrade supported a Croatian Serb insurgency following Croatia’s declaration of independence from Yugoslavia in 1991, resulting in killings and displacement of Croatians from Krajina (an area covering roughly a third of Croatia).

Earlier this year, Serbia filed a countersuit to which Croatia has until Dec. 20 to respond. Although both countries have been urged to drop their respective claims for diplomatic reasons, an unresolved issue remains in international law on how evidence of “ethnic cleansing” should fit into the broader legal framework when evaluating claims of genocide. Regardless of how the ICJ ultimately rules, the court should use this opportunity to illuminate when and whether evidence of “ethnic cleansing” demonstrates the intent to commit genocide.

The term “ethnic cleansing” entered common parlance during the wars in Bosnia and Croatia in the earlier 1990s. It generally describes the forced removal of indigenous populations from a particular territory. The Rome Statute of the International Criminal Court recognizes the “deportation or forcible transfer of population” as a crime against humanity. In contrast, genocide has been portrayed as a “form of one-sided mass killing in which a state or authority intends to destroy a group.” International courts such as the ICJ and the International Criminal Tribunal for the former Yugoslavia (ICTY) have held that ethnic cleansing is not genocide when the intent is to remove a population, not physically destroy it.

This is evidently true even when forced removal results in murder, rape and other atrocities. In the Bosnia case, Serbia was found not to have committed genocide despite widespread evidence of “ethnic cleansing” coupled with “massive killings” and other grievous abuses. What seems paramount to the Bosnia holding is the insistence that the horrific acts described — both alleged and acknowledged — were not accompanied with the specific intent to commit genocide, but instead were targeted to remove populations. In fact, the ICJ’s opinion suggests that evidence of ethnic cleansing can actually be used to refute claims of genocide (The court cited the U.N. special rapporteur’s conclusion that cutting off food supplies was designed to cause Bosnians and Croatians to flee.) These results certainly do not reflect the letter or spirit of the United Nations’ Genocide Convention, nor do they acknowledge the multifarious methods used to achieve genocidal aims.

Article 2 of the Genocide Convention’s definition contains three primary elements: prohibited acts that qualify as genocide (i.e. killing; causing serious bodily or mental harm; inflicting conditions of life calculated to physically destroy; imposing measures to prevent births; forcibly transferring children); protected groups that must be targeted; and the mens rea special intent to “destroy” a protected group. The mens rea requirement purportedly makes proving genocidal intent particularly difficult due to the collective nature of the crime, involving numerous individuals and entities with potentially differing objectives.

Moreover, the need to distinguish between genocidal intent and the mens rea motivation to perpetrate other humanitarian offenses has challenged ICTY prosecutors, resulting in plea agreements to lesser crimes. This raises an important issue of judicial interpretation as to whether the “intent to destroy” element must refer directly to physical or biological destruction as defined in Article 2 of the Convention, or apply more broadly to include motivation to destroy the protected group as a social unit. Decisions from both the ICTY and ICJ suggest the former.

However, a more expansive approach at analyzing intent was embraced by the European Court of Human Rights in Jorgic v. Germany (2007). The Higher Regional Court at Düsseldorf convicted Nicolai Jorgic, a Bosnian Serb, of 11 counts of genocide, which included the murder of 30 people. The court held that genocidal intent did not “necessitate an intent to destroy that group in a physical or biological sense. It was sufficient that the perpetrator aimed at destroying the group in question as a social unit.” After the conviction was upheld on appeal, Jorgic appealed to the European Court of Human Rights.

In rejecting the defendant’s application, the European Court examined the meaning of the phrase “intent to destroy” as contained in Germany’s criminal code dealing with genocide. The court noted that the wording of Article 2 of the convention corresponds to the criminal code, which interprets “the Genocide Convention as to comprise the protection of a group as a social unit.”

Destroying a social unit can be understood as employing tactics calculated not just to kill or physically harm, but also to dilute a group’s economic, political or cultural power. When such measures culminate in genocidal conduct such as killing, the broader interpretation suggested in Jorgic is better suited to achieving justice. To otherwise substitute the term “genocide” with “ethnic cleansing” communicates a lower level of alarm and responsibility. In Croatia v. Serbia, the ICJ has another opportunity to elaborate on the nexus between ethnic cleansing and genocidal intent.

Douglas Singleterry is an associate at Dughi & Hewit in Cranford, N.J. His article, ” ‘Ethnic Cleansing’ and Genocidal Intent: A Failure of Judicial Interpretation?,” was published in Genocide Studies and Prevention (University of Toronto Press April 2010).