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Law Journal Online
Of 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).
From: A. Papazian