Repairing the Consequences of Ethnic Cleansing

Abstract

In situations of international or civil war, population groups depart from their home areas. Typically, they depart in order to avoid danger. They may depart because one of the warring parties instills in the population a fear that it will harm them if they remain. A warring party may organize the departure, literally or figuratively at gunpoint. A warring party may demonstratively shoot and kill individuals to let others know that it is unsafe to remain. Less explicitly, it may communicate to the population group information that leads the group to believe that it is unsafe to remain, for example, by reminding the group of atrocities that the warring party has committed in the past.

When a warring party brings about the departure of a population group, the term "ethnic cleansing" applies to its action. Unfortunately, this phenomenon of ethnic cleansing has been a feature of many recent conflicts, as one population group seeks to exert control over territory to the exclusion of another. Experts appointed by the United Nations ("U.N.") Security Council to analyze the phenomenon' defined ethnic cleansing as "rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area,"' and as "a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas." The Security Council determined by resolution that ethnic cleansing was occurring in the former Yugoslavia and found that ethnic cleansing there constituted "a threat to international peace and security."

The term "ethnic cleansing" has not entered the legal lexicon. It is used descriptively, but it does not have a normative meaning. Acts described as ethnic cleansing may include deportation, which is prohibited internationally, although deportation need not involve an ethnic element. The projected International Criminal Court is to have jurisdiction over what is defined as a crime of deportation. Article 7(1)(d) of the draft Elements of Crimes, prepared by the Preparatory Committee for the International Criminal Court, is titled "Crime against humanity of deportation or forcible transfer of population." Article 7(1)(d)(1) defines the crime as follows: "the perpetrator deported or forcibly transferred, without grounds permitted under international law, one or more persons to another state or location, by expulsion or other coercive acts." The draft provides a definition of the term "forcibly" that indicates that force is "not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression, or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment." Other subparagraphs of Article 7(1)(d) require, additionally, that the conduct was part of a widespread or systematic attack against a civilian population, and that the victims must be lawfully present in the area from which they are deported or transferred.

Acts of ethnic cleansing may constitute genocide, if the elements defined in the Genocide Convention are present. These acts would typically be acts of violence directed against a group that frighten members of the group into fleeing. The International Court of Justice found a prima facie case of genocide in 1993 in acts of violence against Bosnian Muslims that prompted many to flee.

The international community has reacted to the phenomenon of ethnic cleansing in a number of ways. One has been to impose individual penal responsibility at the international level on the perpetrators, as reflected in the inclusion of the crime of deportation in the list of crimes cognizable before the International Criminal Court. Individuals may, on occasion, be brought to justice in penal proceedings for expelling a population. Such proceedings may exert a deterrent impact on the future perpetration of such acts. Repairing the consequences of an episode of ethnic cleansing, however, can most effectively be achieved by enlisting the states involved and in particular those states from whose territory persons have been displaced. Where an episode of ethnic cleansing has occurred, the predominant approach has been to insist that the state from which displacement occurred offer repatriation to the displaced. This approach has been based on two rationales. The first is that the displaced are legally entitled to reside in their home areas and that the state in control of the territory is obliged to repatriate them. The second is that the existence of an exiled population may remain a source of instability and therefore that the restoration of peace requires repatriation.