- Gross violations — Ethnic cleansing
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
1 Ethnic cleansing—notwithstanding a number of definitional ambiguities that will be explained further below—refers to various policies or practices aimed at the creation of an ethnically homogenous geographic area through the displacement of an ethnic group from that particular area. The origin of the term ethnic cleansing is not clearly established. The language resembles expressions used by the National Socialists in their ‘racial hygiene’ programmes (‘Säuberung’, ‘judenrein’). Between the end of World War II and the end of the Cold War (1947–91), the expression ethnic cleansing or synonymous language was only used sporadically. For example, in 1981, the Yugoslavian media reportedly referred to the establishment of ‘ethnically clean territories’ in Kosovo. What is certain, however, is that the English term ethnic cleansing was coined and popularized by the international media in the early 1990s during the conflicts and the forced population transfers that erupted upon the disintegration of the Federal Republic of Yugoslavia (Yugoslavia, Dissolution of). It is against this particular historic background that the term ethnic cleansing entered international diplomatic parlance and official UN vocabulary. Consequentially, in 1993, the Commission of Experts Established pursuant to United Nations Security Council Resolution 780 (‘Commission of Experts’) in its First Interim Report stated: ‘The expression “ethnic cleansing” is relatively new’ (at para. 55). Initial references to ethnic cleansing in UN documentation can be found, for example, in UN Security Council (‘UNSC’) Resolutions 711 (1992), 780 (1992), and 787 (1992) as well as in UN General Assembly (‘UNGA’) Resolution 242 (1992). At the time, the term appeared in quotation marks ostensibly to reflect the view that the perpetrators themselves had used the terminology (UNSC Verbatim Record [13 August 1992] 22). In later UN documents the quotation marks no longer occur (eg UNSC Resolution 1674 ). This underscores that the term ethnic cleansing has become widely accepted as a generic term, no longer confined to the specific historic events from which it emanated. After 1992 the international media employed the expression ethnic cleansing in relation to events for example in Cyprus, in Georgia and the larger Caucasus region, as well as in Burundi. Occasionally, the expression ‘ethnic purification’ has been used synonymously. In French, including in UN documents, ‘purification ethnique’, ‘nettoyageethnique’, and ‘épurationethnique’ have been used interchangeably (Petrovic 343).
2 The validity of the term ‘ethnic cleansing’ has at times met with critique. In particular, ethnic cleansing has been challenged as a euphemism for genocide. As such, it has been argued, it could prevent adequate public recognition of an ongoing genocide thereby hampering decisive action on behalf of the international community. This criticism has arguably lost much of its vigour since ethnic cleansing was included alongside genocide, crimes against humanity, and war crimes within the ambit of the responsibility to protect.
3 Today the term ethnic cleansing is widely accepted. Its actual meaning, however, has long remained somewhat imprecise. Up until today, neither a universally agreed nor a codified definition of ethnic cleansing exists. Attempts at defining ethnic cleansing have been various, both in literature as well as in practice. According to Bell-Fialkoff: ‘At the most general level … ethnic cleansing can be understood as the expulsion of an “undesirable” population from a given territory due to religious or ethnic discrimination, political, strategic or ideological considerations, or a combination of these’ (Bell-Fialkoff  at 110; Population, Expulsion and Transfer; Racial and Religious Discrimination). A somewhat narrower definition was introduced by the UN Commission on Human Rights in August 1992 (United Nations Commission on Human Rights/United Nations Human Rights Council). The Commission held that ‘ethnic cleansing … at a minimum entails deportations and forcible mass removal or expulsion of persons from their homes in flagrant violation of their human rights, and which is aimed at the dislocation or destruction of national ethnic racial or religious groups’ (Resolution 1992/S-1/1, Preamble). Special Rapporteur Mazowiecki of the Commission on Human Rights defined ethnic cleansing as ‘the elimination by the ethnic group exerting control over a given territory of members of other ethnic groups’ (Mazowiecki Third Report I [the categorization of the Mazowiecki Reports follows Petrovic ). In a later report the Special Rapporteur held that ‘ethnic cleansing may be equated with the systematic purge of the civilian population based on ethnic criteria, with the view of forcing it to abandon the territories where it lives’ (Mazowiecki Sixth Report II para. 283). In its Second Interim Report of 5 October 1993 the Commission of Experts defined ethnic cleansing to mean ‘rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area’ (at para. 55, see generally Petrovic 351). This latter definition was accepted by the International Court of Justice (‘ICJ’) in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide Case (Bosnia and Herzegovina v Serbia and Montenegro) (‘Bosnian Genocide Case’). Notably, however, the ICJ merely cited the Commission’s definition in its explanation of how the term ‘ethnic cleansing’ is ‘in practice used’ and in the context of its overall analysis of what legal significance the expression may have (Bosnian Genocide Case para. 190). Unlike more recent UN documents the ICJ continued to use the term ‘ethnic cleansing’ in quotation marks. This, together with the fact that the ICJ deemed it necessary to explore the legal significance of the expression ethnic cleansing at all, implies that the Court neither assumed nor intended to confirm the existence of a legally binding definition of the term.
4 The Commission of Experts in its Final Report of 24 May 1994 confirmed ‘its earlier view that “ethnic cleansing” is a purposeful policy designed by one ethnic or religious [emphasis added] group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas’ (at para. 130). According to this definition the adjective ‘ethnic’ preceding the word ‘cleansing’ is not used in a strict sense. Thus although sporadically specific references to ‘religious cleansing’ can be found in UN documentation (eg UNGA Third Committee Summary Record 5th Meeting para. 17; UNGA Third Committee Summary Record 9th Meeting para. 54), ethnic cleansing seems to be understood rather broadly to comprise the ‘cleansing’ of groups defined by ethnicity as well as by religion. Arguably, the concept is also open to comprise groups defined on the basis of other distinguishable criteria such as race, class, nationality, as well as linguistic minorities, and indigenous people.
5 The range of violent and terror-inspiring means that may potentially be used to implement a policy of ethnic cleansing, ie to compel flight or to enforce transfer of the target group, is vast. It defies conclusive circumscription. The Commission of Experts considered techniques of ethnic cleansing to include murder, torture (Torture, Prohibition of), arbitrary arrest and detention (Detention, Arbitrary), extra-judicial executions, rape and sexual assaults, confinement of the civilian population in ghetto areas, forcible removal, displacement and deportation, deliberate military attacks or threats of attacks on civilians and civilian areas, and wanton destruction of property (Commission of Experts First Interim Report para. 56). Rape, in particular, has been pointed out as a repugnant feature of ethnic cleansing (Mazowiecki Third Report I, page 12 point 27; UNGA Res 49/205 ; UNGA Res 50/192 ; UNGA Res 51/115 ). The widespread destruction of villages and property, including cultural and religious monuments and symbols, aimed at the eradication of cultural, social, and religious traces that identify the persecuted group, often takes place in parallel. Ethnic cleansing does not require the existence of an armed conflict. It may also be conducted in peacetime. In practice, however, ethnic cleansing has often occurred during armed conflict including situations of occupation, when territorial readjustments and boundary revisions emerge as a realizable option (Preece 822).
6 A degree of imprecision remains as far as the determination of the exact beginning of ethnic cleansing is concerned. On the wider continuum of ‘mere’ discriminatory harassment and ‘transfer under pressure’ on the one end of the spectrum, and terrorizing acts as well as ultimately even the genocide of the persecuted group on the other end, it may be difficult to ascertain at which precise point in time ethnic cleansing begins. In rather clear-cut cases ethnic cleansing occurs as a dramatic en masse expulsion; people are rounded up, detained, and deported (Preece 821, 822). But the ‘cleansing’ of an area may also occur more gradually over a longer period of time. Involuntary movement may be brought about by more indirect measures including the removal of elected authorities; the prohibition of ethnic associations and minority language use; forced homogenization or assimilation (Assimilation, Forced); work restrictions; restricted access to education, housing, medicine, food, or humanitarian aid; and political violence in the form of pogroms (Preece 822). Notably, the definition of ethnic cleansing referred to by the ICJ requires the use of force or intimidation. Removal brought about by other means, ie harassment falling short of intimidation or the use of force, would not seem to suffice under this definition. But where this line is to be drawn and at which point the combination of various indirect discriminatory measures would reach the critical threshold remains somewhat ambiguous. In the context of crimes against humanity, trial and appeals chambers of the International Criminal Tribunal for the Former Yugoslavia (‘ICTY’) have consistently held that it is the absence of ‘genuine choice’ that renders displacement involuntary and that it is essential that the displacement takes place under coercion (Krnojelac [Appeal Judgment] para. 229; Blagojević [Trial Judgment] para. 596; Brdanin [Trial Judgment] para. 543; Simić [Trial Judgment] para. 125; Stakić [Appeal Judgment] para. 279). In Krnojelac the appeals chamber held that a ‘genuine choice’ cannot be inferred from the fact that consent was expressed where the circumstances deprive the consent of any value (Krnojelac [Appeal Judgment] para. 229; see also Simić [Trial Judgment] para. 126). In Blagojević the trial chamber held that ‘the trier of fact must consequently consider the prevailing situation and atmosphere, as well as all relevant circumstances, including in particular the victim’s vulnerability, when assessing whether the displaced victims had a genuine choice to remain or leave’ (Blagojević [Trial Judgment] para. 596). These considerations may serve as helpful indicators also in the case of ethnic cleansing. Moreover, in view of remaining ambiguities on the actusreus level, it appears that the specific intent to permanently remove an ethnic group from a particular area plays an important role in identifying ethnic cleansing.
7 There has been considerable controversy over the ‘modernity’ of ethnic cleansing and whether or not the concept (rather than the expression) originated in the 20th century. According to some authors, ethnic cleansing is intrinsically linked to the political ideal of the homogeneous Nation-State and the ethnic nationalism that underscores it (Preece 820). Ethnic cleansing has thus been described as an instrument of Nation-State creation that comprises population movements aiming to bolster claims for international boundary changes or to consolidate control over disputed frontier areas (Preece 840). Yet, forcible population transfers that could be subsumed under the contemporary notion of ethnic cleansing can be found throughout history. There are abundant examples of forcible population transfers and expulsions of specific groups from the ancient world (Bell-Fialkoff  281). Still, in the 20th century forced population transfers and generally practices that would today be dubbed ethnic cleansing became so widespread and often took place under such inhumane conditions that the UN Special Rapporteurs Al-Kwasawneh and Hatano in their 1993 Report entitled ‘The Human Rights Dimensions of Population Transfer’ observed that: ‘As much as population transfer has prevailed as an instrument of State-craft in every age in recorded history, ours could be distinguished as the century of the displaced person.’ Examples of ethnic cleansing in the 20th century include the forcible displacements of Armenians by the Ottoman Empire in 1914–18, the deportation of European Jews to concentration camps and isolated ghettos in the 1930s and 1940s, the deportation of Baltic and Polish peoples to Siberia 1940–41, and the deportation of Poles from the German-occupied Warthegau into inner Poland 1939–41. At the Potsdam Conference (1945) the Allies authorized the transfer of Germans from east of the Oder-Neisse Line, namely from pre-war Poland, from Czechoslovakia, and from Hungary. Although it was expressly provided that ‘any transfers that take place should be effected in an orderly and humane manner’ (Section XIII [renumbered XII] of the Protocol of the Proceedings of the Berlin Conference) these transfers also took place under extremely harsh conditions. Further examples of ethnic cleansing in the 20th century are the Soviet Union’s deportation of certain ethnic minorities from the Caucasus and Crimea during the 1940s and the forced migrations in the former Yugoslavia in the 1990s. The Holocaust of European Jews and the mass killings in Rwanda in the 1990s are also sometimes listed as examples of ethnic cleansing in the 20th century. The relationship between genocide and ethnic cleansing, however, remains controversial. While it seems to be increasingly accepted that these concepts, albeit distinct, may potentially overlap, in cases in which the intent to physically destroy a group rather than the intention to territorially remove it dominates so clearly, emphasis should lay on genocide rather than ethnic cleansing.
8 Nation-State creation or consolidation has certainly been the predominant motive in decisions to resort to ethnic cleansing throughout the 20th century. However, it would go too far to link ethnic cleansing exclusively to the process of Nation-State creation. The underlying motivations for resorting to ethnic cleansing are complex and intertwined. In the Yugoslavia context the Commission of Experts in its Final Report held that: ‘The political doctrine [of ethnic cleansing] consists of a complex mixture of historical claims, grievances and fears and nationalistic aspirations and expectations, as well as religious and psychological elements’. What is more, ethnic cleansing does not require population transfers across international borders. Ethnic cleansing thus comprises intra-State forcible transfers of specific ethnic, religious, and arguably otherwise definable groups (see above at 2) and therefore encompasses regional as well as rather localized occurrences that need not necessarily be linked to a process of Nation-State creation.
B. The Prohibition of Ethnic Cleansing under International Law
9 A treaty rule specifically prohibiting ethnic cleansing as such does not currently exist. Still, already in 1992, the Commission of Experts held that ‘ethnic cleansing is contrary to international law’ (First Interim Report para. 55). Indeed, ethnic cleansing has frequently been denounced by various international forums. The UNSC in 1994 strongly condemned ‘the unacceptable practice of “ethnic cleansing”’ (UNSC Resolution 941 para. 2); the UNGA, the UN Economic and Social Council, the UN Commission on Human Rights, as well as the Organization for Security and Co-operation in Europe (OSCE) have voiced similar condemnations (eg UNGA Resolution 47/80 ). The Vienna World Conference on Human Rights (1993) described ethnic cleansing as an ‘abhorrent practice’ and expressed its ‘dismay at massive violations of human rights especially in the form of … “ethnic cleansing”’ (Report of the World Conference on Human Rights para. 28). The OSCE has repeatedly expressed ‘deep concern over “ethnic cleansing”, the massive expulsion of people, predominantly Georgian, from their living areas and the deaths of large numbers of innocent civilians’ and reiterated its ‘strong condemnation … of the “ethnic cleansing” resulting in mass destruction and forcible expulsions of the predominantly Georgian population in Abkhazia’ (Budapest Document 1994; Lisbon Document 1996 para. 20; Istanbul Document 1999 para. 13).
10 It appears, however, that these condemnations, as well as the Commission of Experts’ finding that ethnic cleansing is contrary to international law, are based on the assumption that ethnic cleansing inherently entails serious violations of various international law provisions, including a series of internationally recognized human rights, rather than violating an international customary law rule prohibiting ethnic cleansing as such. 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. Even the ICJ, when considering the legal significance of the term ethnic cleansing in the Bosnian Genocide Case, referred to the term as ‘in practice used’ rather than to an accepted legal definition.
11 Yet, even if a customary law rule specifically prohibiting ethnic cleansing as such cannot be discerned at the present moment, there can be no doubt that ethnic cleansing violates fundamental prescriptions of international law. 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.
1. Violations of International Human Rights Law
12 Ethnic cleansing comprises forced population transfers and as such violates certain human rights. Special Rapporteurs Al-Khasawneh and Hatano, in their Reports on Human Rights and Population Transfer, Including the Implantation of Settlers, repeatedly underlined the illegality of forcible transfers and their prohibition under international human rights law (Preliminary Report ; Progress Report ; Final Report ; see also UN Sub-Commission on Prevention of Discrimination and Protection of Minorities Resolution 1993/34). Specific rights which forcible population transfers violate include the right to self-determination (Arts 1, 55, 73, and 76 UN Charter; Art. 1 International Covenant on Civil and Political Rights  [‘ICCPR’] and Art. 1 International Covenant on Economic, Social and Cultural Rights  [‘ICESCR’]), the right of freedom of movement, the right to choose one’s residence—which includes the right to remain in the place of one’s choice and not be arbitrarily displaced (UN Human Rights Committee [‘UN HRC’] ‘General Comment No 27: Freedom of Movement [Art. 12]’ para. 7), and the right to return to one’s homeland (Art. 12 ICCPR). Moreover, forcible population transfers inter alia also violate the right of aliens to individual judicial and administrative proceedings in case of expulsion (Art. 13 ICCPR), the right to privacy (Art. 17 ICCPR), to family (Art. 23 ICCPR), to special protection of children (Art. 24 ICCPR), to political participation (Art. 25 ICCPR), to equality (Art. 26 ICCPR), minority rights (Art. 27 ICCPR), the prohibition of incitement to violence and racial hatred (Art. 20 ICCPR), as well as the right to work (Art. 6 ICESCR), to social security (Art. 9 ICESCR), to the protection of the family (Art. 10 ICESCR), to education (Art. 13 ICESCR), and to culture (Art. 15 ICESCR).
13 On the regional level Art. 3 Fourth Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) states that: ‘No one shall be expelled, by means either of an individual or a collective measure, from the territory of the State of which he is a national’. Art. 4 Fourth Protocol prohibits the ‘collective expulsion of aliens’. Art. 16 Council of Europe Framework Convention for the Protection of National Minorities specifies that States ‘shall refrain from measures which alter the proportions of the population in areas inhabited by persons belonging to national minorities and are aimed at restricting the rights and freedoms flowing from the principles enshrined in the … Convention’. Similarly, Art. 12 (5) African Charter on Human and Peoples’ Rights (1981) stipulates that ‘mass expulsion of non-nationals shall be prohibited.’ According to Art. 22 (5) American Convention on Human Rights (1969) ‘no one can be expelled from the territory of the State of which he is a national or be deprived of the right to enter it’; Art. 22 (6) stipulates that aliens who stay lawfully in the territory of a State Party to the Convention may be expelled only pursuant to a decision reached in accordance with law and Art. 22 (9) explicitly prohibits the collective expulsion of aliens.
14 Ethnic cleansing is also incompatible with various ‘soft-law’ prescriptions. These include the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, the Draft Code of Crimes against the Peace and Security of Mankind, and certain resolutions adopted by the Sub-Commission on Prevention of Discrimination and Protection of Minorities, namely Resolutions 1992/28, 1994/24, 1995/13, and 1996/9. The Guiding Principles on Internal Displacement stipulate that: ‘Every human being shall have the right to be protected against being arbitrarily displaced from his or her home or place of habitual residence. The prohibition of arbitrary displacement includes displacement: (a) when it is based on policies of apartheid, “ethnic cleansing” or similar practices aimed at/or resulting in altering the ethnic, religious or racial composition of the affected population; (b) in situations of armed conflict, unless the security of the civilians involved or imperative military reasons so demand’ (Principle 6 [emphasis added]). The Final Report of Special Rapporteurs Al-Khasawneh and Hatano annexes a Draft Declaration on Population Transfer and the Implantation of Settlers which in Art. 4 (1) accords every person the right to remain in peace, security, and dignity in one’s home, or on one’s land and in one’s country, and which stipulates in Art. 4 (2) that ‘no person shall be compelled to leave his place of residence’.
15 Ethnic cleansing is also inherently discriminatory. It is directed against a specific—ethnically or arguably otherwise definable—group. The prohibition of discrimination is firmly anchored in the International Bill of Human Rights, namely in the Universal Declaration of Human Rights (1948) (Arts 1, 2, and 7), the ICCPR (Arts 2 and 26), and the ICESCR (Art. 2 (2)). 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. 13 ICESCR), they arguably imply that the criterion of ‘ethnic origin’ is already covered by the other listed criteria such as race, colour, and nationality. The Rome Statute of the International Criminal Court (‘ICC Statute’) is clearer in this regard. Art. 7 (1) (h) ICC Statute explicitly refers to ethnicity in the listing of grounds for discrimination that are universally recognized as impermissible under international law. The non-discrimination clause of Art. 21 (3) ICC Statute also refers to ‘ethnic or social origin’. Moreover, the prohibition of discrimination, including on grounds of ethnic origin, is particularly evident in the International Convention on the Elimination of All Forms of Racial Discrimination (‘ICERD’) of 1965. Art. 1 ICERD which is reflective of customary international law defines racial discrimination to include ‘any distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms’. Indeed, the entire ICERD is based on the principle of equality of treatment, to which all human beings are entitled. Consequently, in its concluding observations regarding the report on the Republic of Bosnia-Herzegovina (Documents Submitted in Compliance with a Special Edition of the Committee: Bosnia and Herzegovina) the Committee on the Elimination of Racial Discrimination (‘CERD’) condemned the displacement of a population to achieve ethnically homogeneous areas because this constituted ‘a grave violation of all the basic principles underlying the International Convention on the Elimination of All Forms of Racial Discrimination’ (Annual Report  para. 219).
16 On 12 August 2008, Georgia filed an application instituting proceedings against the Russian Federation for alleged violations of the International Convention on the Elimination of All Forms of Racial Discrimination contending that ‘the Russian Federation … has practised, sponsored and supported racial discrimination through attacks against, and mass-expulsion of, ethnic Georgians, as well as other ethnic groups, in the South Ossetia and Abkhazia regions of the Republic of Georgia’. 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 2008] para. 3). 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. 149).
2. Violations of International Humanitarian Law
17 Ethnic cleansing, if conducted in times of armed conflict, violates important international humanitarian law prescriptions. Consequently, ethnic cleansing has been designated as a violation of international humanitarian law in a number of UNSC Resolutions (771 , 780 , 808 , and 820 ). Art. 23 Instructions for the Government of Armies of the United States in the Field of 1863 (‘Lieber Code’) already stipulated that: ‘Private citizens are no longer murdered, enslaved, or carried off to distant parts, and the inoffensive individual is as little disturbed in his private relations as the commander of the hostile troops can afford to grant in the overruling demands of a vigorous war.’ At the time of World Wars I and II, the Hague Convention respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (‘1907 Hague Convention IV’; ‘Regulations’) applied. Arts 42–56 Regulations concerning the Laws and Customs of War on Land defined and limited the rights of belligerent occupants (Occupation, Belligerent). According to Art. 43 Regulations ‘The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country’. Moreover, Art. 46 Regulations stipulates that ‘family honour and rights, the lives of persons, and private property, as well as religious practice must be respected. Private property can not be confiscated’. Finally, Art. 50 Hague Convention IV provides that ‘[n]o general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.’ Although the Hague Regulations of 1907 contain no express prohibition of forced population transfers, it has been inferred that deportations would necessarily have violated all three of these articles (de Zayas  212). The Regulations’ silence on population transfers has been ascribed to the assumption that at the time of their drafting, the practice of deporting persons was simply regarded as having fallen into abeyance. Notwithstanding, forcible population trans-fers were arguably prohibited already under Art. 23 Lieber Code which, albeit a national instrument, subsequently influenced the Hague Conventions and the development of its provisions into customary law, and the travauxpréparatoires of the Hague Conventions contain no indication that the omission of any reference to population transfers in the Hague Regulations was deliberate. During World War II the Allies made it clear on several occasions that they considered mass expulsions to be criminal and punishable. Against this background, the Nuremberg Tribunal ruled that ‘[mass] deportations were contrary to the international conventions … [and] the laws and customs of war’ (Trial of German Major War Criminals [Judgment]) and condemned several Axis wartime deportations both as war crimes and crimes against humanity. Numerous other tribunals also prosecuted Germans for the crime of deporting civilians.
18 Art. 49 (1) Geneva Convention relative to the Protection of Civilian Persons in Time of War (‘GC IV’) stipulates that: ‘Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive’ (Protected Persons). Exceptions for total or partial evacuations are permissible only if the ‘security of the population or imperative military reasons so demand’ and even then, ‘persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased’. The official commentary notes that ‘evacuation must not involve the movement of protected persons to places outside the occupied territory, unless it is physically impossible to do otherwise. Thus, as a rule, evacuation must be to reception centres inside the territory’ (ICRC Commentary to GC IV 280). 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.
19 Art. 17 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-International Armed Conflicts (‘Protocol II’) applies this prohibition to internal displacements in times of non international armed conflict. According to Art. 17 (1) Protocol II: ‘The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand.’ Art. 17 (2) Protocol II stipulates that ‘Civilians shall not be compelled to leave their own territory for reasons connected with the conflict’. According to Rule 129 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. 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. 166; Blagojević [Trial Judgment] para. 597; Brdanin [Trial Judgment] para. 556). In addition to the two exceptions of the security of the civilian population and imperative military reasons, the Blagojević trial chamber held that the law allows evacuations also for humanitarian reasons. The Chamber based its conclusion upon Art. 17 Additional Protocol II, which provides in part that ‘[t]he displacement of the civilian population shall not be ordered for reasons related to the conflict’ (Blagojević [Trial Judgment] para. 600). The Commentary to Art. 17 Protocol II likewise indicates that for other reasons—such as the outbreak or risk of outbreak of epidemics, natural disasters, or the existence of a generally untenable and life-threatening living situation—displacement of the civilian population may be lawfully carried out by the parties to the conflict (see ICRC Commentary to Additional Protocol II para. 4855; Blagojević [Trial Judgment] para. 600). Evidently, ethnic cleansing could never be justified under any of these exception clauses. In Milutinovic the trial chamber pointed out that ‘the chief distinction between an illegitimate forcible displacement and a permissible evacuation is that, in the case of the latter, “persons thus evacuated [are] transferred back to their homes as soon as the hostilities in the area in question have ceased” and that it is therefore unlawful to use evacuation measures as a pretext to forcibly dislocate a population and seize control over a territory’ (Milutinovic [Trial Judgment] para. 166; Brdanin [Trial Judgment] para. 556; Blagojević [Trial Judgment] para. 597).
20 According to Art. 147 GC IV, grave breaches of the Fourth Geneva Convention include the unlawful deportation or transfer of protected persons. Art. 85 (4) (a) Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (‘Protocol I’) includes amongst the grave breaches of that Protocol the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory in violation of Art. 49 GC IV.
21 Finally, adverse distinctions in the application of international humanitarian law’s protective provisions on the basis of race, colour, religion or faith, sex, language, birth or wealth, political or other opinion, national or social origin, or any other similar criteria are prohibited under customary law (ICRC Customary Law Study Rule 88) as well as by common Art. 3 of the four Geneva Conventions, Art. 16 GC III; Art. 13 GC IV; Arts 9, 75 (1); Protocol I; and Arts 2, 4 Protocol II.
3. International Criminal Law
22 The UNSC in its Report on Implementing the Responsibility to Protect confirmed that ‘[e]thnic cleansing is not a crime in its own right under international law, but acts of ethnic cleansing may constitute one of the other three crimes’, ie genocide, war crimes, or crimes against humanity (at para. 3). Similarly, the UNHCHR (Human Rights, United Nations High Commissioner for [UNHCHR]) spoke of the ‘subordination of ethnic cleansing to genocide, crimes against humanity and war crimes’ (Annual Report of the UN High Commissioner for Human Rights and Reports of the Office of the High Commissioner and the Secretary General: Fundamental Standards of Humanity: Report of the Secretary-General para. 24 [emphasis added]). 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.
(a) Ethnic Cleansing as a War Crime
23 Art. 6 (b) Charter of the Nuremberg International Military Tribunal defined war crimes to include the deportation of civilian populations. 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. 2 (g) of the Statute of the ICTY. Unlawful deportation or transfer constitute war crimes in international armed conflicts (Art. 8 (2) (a) (vii) ICC Statute). According to Art. 8 (2) (b) (viii) ICC Statute, the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory also amounts to a war crime. In the case of an armed conflict not of an international character ‘ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand’ likewise constitutes a war crime (Art. 8 (2) (e) (viii) ICC Statute).
(b) Ethnic Cleansing as a Crime against Humanity
24 Art. 6 (c) of the Charter defined ‘crimes against humanity’ to include deportation and other inhumane acts committed against any civilian population before or during the war. Deportation and persecution are listed as crimes against humanity in the respective Statutes of the International Criminal Tribunal for the Former Yugoslavia (ICTY) (Art. 5 (d), (h)) and the International Criminal Tribunal for Rwanda (ICTR) (Art. 3 (d), (h)). Art. 18 Draft Code of Crimes against the Peace and Security of Mankind adopted by the International Law Commission (ILC) in 1996 declares that ‘arbitrary deportation or forcible transfer of population’ constitutes a crime against humanity ‘when committed in a systematic manner or on a large scale and instigated or directed by a Government’. Art. 7 (1) (d) of the ICC Statute stipulates that ‘[d]eportation or forcible transfer of population’ constitutes a crime against humanity ‘when committed as part of a widespread or systematic attack, directed against any civilian population’. According to Art. 7 (2) (d) ICC Statute deportation or forcible transfer of population means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law. According to Art. 7 (2) (h) ICC Statute persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in Art. 2 (2) or any crime within the jurisdiction of the Court also amounts to a crime against humanity. According to Art. 7 (2) (g) ICC Statute, ‘persecution’ means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or ‘collectivity’.
25 The jurisprudence of the ICTY indicates that the offences of deportation and forcible transfer do not require the intent that the victims be displaced permanently, only that they be intentionally displaced (Milutinovic [Trial Judgment] para. 167; Stakić [Appeal Judgment] paras 307, 317; but see Naletilić [Appeal Judgment, Dissenting Opinion of Judge Schomburg] para. 24). 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.
(c) Ethnic Cleansing and Genocide
26 The relation of ethnic cleansing and genocide has spurred considerable controversy. Initially, when the term ‘ethnic cleansing’ first entered international parlance in the early 1990s, ethnic cleansing was occasionally equated with genocide. Most importantly, UNGA Resolution 47/121 of 18 December 1992 referred to ‘the abhorrent policy of “ethnic cleansing” which is a form of genocide’. The UNGA reaffirmed this reference in a number of subsequent Resolutions (48/143 ; 48/153 ; 49/205 ; 50/192 ; 51/115 ). It is arguably against this particular background that the Interim Report by Special Rapporteur Bacre Waly Ndiaye on Extrajudicial, Summary or Arbitrary Executions dubbed ‘ethnic cleansing’ a mere euphemism for genocide (at para. 69). Similarily, early pronouncements of the ICTY sporadically evidence an equation of genocide and ethnic cleansing. In confirmation of the Srebrenica indictment (second indictment) in Karadzic, Judge Riad referred to ‘ethnic cleansing’ as a form of genocide (Karadzic [Indictment] [14 November 1995] 4). Trial chamber I in its Rule 61 decision in Nikolić spoke of the ‘genocidal character’ of the policy of ethnic cleansing (Nikolić [Review of Indictment Pursuant to Rule 61] para. 34).
27 A blanket equation of ethnic cleansing and genocide, however, is not maintainable. 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 226). The US expressed concern that the proposed definition of the crime of genocide ‘might be extended to embrace forced transfers of minority groups such as have already been carried out by members of the UN’ (UN Doc E/623). In the 6th Committee a Syrian proposal to amend the definition of genocide to comprise ‘measures intended to oblige members of a group to abandon their homes in order to escape the threat of subsequent ill-treatment’ (Genocide: Draft Convention [E/794] and Report of the Economic and Social Council; Syria: Amendment to Art. II) was rejected by 29 votes to five with eight abstentions (Genocide: Draft Convention [E/794] and Report of the Economic and Social Council; Continuation of Consideration). The rejection of the Syrian amendment has at times been referred to as evidence of the exclusion of ‘ethnic cleansing’ from the scope of the Genocide Convention (Bosnian Genocide Case para. 190; Stakić [Trial Judgment] para. 519). In Stakić the trial chamber emphasized that for genocide deportation of a group or a part of a group is not sufficient and that a clear distinction must be drawn between the physical destruction and the mere dissolution of a group (Stakić [Trial Judgment] para. 519). The appeal judgment in the Krstić Case likewise held that forcible transfer does not—in and of itself— constitute a genocidal act (Krstić [Appeal Judgment] para. 33). Similar pronouncements can be found on the national level. According to the Supreme Court of Kosovo, the acts committed by the Milosevic regime in 1999 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. The Court concluded that the purpose of the acts in question was not the destruction of the Albanian ethnic group in whole or in part, but its forceful departure from Kosovo as a result of a systematic campaign of terror, and that such a motivation did not characterize the specific genocidal intent to destroy an ethnic group (Vucković Supreme Court of Kosovo [31 August 2001] AP156/2001, 2–4). Similarly, in the Kusljic decision of 21 February 2001 the German Federal Supreme Court held that the defendant’s knowledge and intention that ethnic cleansing was being committed did not suffice to fulfil the requirements of the specific genocidal intent required for genocide (at 8–10). However, it should be emphasized that especially German Courts have at times endorsed a broader understanding of the genocidal intent (See Kreß para. 71). 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. In the Jorgic v Germany judgment of 12 July 2007 the European Court of Human Rights (ECtHR) concluded that the German national courts’ rather broad interpretation of the genocidal intent to destroy, so as to cover the applicant’s acts committed in the course of the ethnic cleansing in Bosnia-Herzegovina, was consistent with the essence of that offence and could reasonably have been foreseen by the applicant at the material time (at para. 114). Notably, the ECtHR, in its judgment of July 2007, considered these issues within the context of its deliberations regarding the principle Nullapoenanullumcrimen sine lege as contained in Art. 7 (1) ECHR. Thus, the ECtHR merely held that in 1992, when the applicant had committed his offences—long before in 2001 the Krstić trial chamber expressly rejected the German Federal Constitutional Court’s broad interpretation of the intent to destroy, arguing that the offence of genocide was restricted to acts aimed at the physical or biological destruction of a group—it could have reasonably been foreseen by the perpetrator that his intent to destroy a group as a social unit might be subsumed under the crime of genocide by German courts. However, the ECtHR did not deliver a ruling on how in its opinion the ‘intent to destroy’ should be interpreted in 2007.
28 The ICJ, in its judgment of 26 February 2007, confirmed that ‘[n]either the intent, as a matter of policy, to render an area “ethnically homogeneous”, nor the operations that may be carried out to implement such policy, can as such be designated as genocide’ Moreover, the Court held that deportation or displacement of the members of a group, even if effected by force, is not necessarily equivalent to destruction of that group (Bosnian Genocide Case para. 190). This view is widely supported in legal doctrine (Cassese 98; Kreβ para. 57). In Blagojević, the ICTY appeals chamber cited the ICJ’s recent ruling as support for the conclusion that ‘displacement is not equivalent to destruction’, and that acts of ethnic cleansing perpetrated at Srebrenica could not necessarily be taken as evidence of genocidal intent, contrary to what the trial chamber had decided (Blagojević [Appeal Judgment] para. 123).
29 In more recent years the UNGA has referred to the phenomena of ‘genocide, war crimes, ethnic cleansing and crimes against humanity’, thereby implying that ethnic cleansing constitutes an autonomous category distinct from genocide and other crimes (Resolution 60/1 ‘World Summit Outcome’ paras 138–39; Schabas 225). The addition of ethnic cleansing to the ambit of the responsibility to protect as a stand-alone trigger alongside the categories of war crimes, crimes against humanity, and genocide in 2005 also supports such a reading (World Summit Outcome paras 138–39; see also UNSC Resolutions 1674  and 1706 ; UNGA Resolution 63/308 ). 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. In Krstić, the trial chamber held that ‘there are obvious similarities between a genocidal policy and the policy commonly known as “ethnic cleansing”’ (Krstić [Trial Judgment] para. 562). The Brdanin trial chamber cited these words approvingly, specifying that ‘the underlying criminal acts for each may often be the same’ and that it did ‘not negate that ethnic cleansing may under certain circumstances ultimately reach the level of genocide’ (Brdanin [Trial Judgment] para. 981). The ICJ also confirmed that ethnic cleansing may potentially amount to genocide, that acts of ‘ethnic cleansing’ may occur in parallel to acts prohibited by Art. 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. 190). 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.
30 In sum, while ethnic cleansing adversely affects people, what is really at stake, contrary to genocide, is territory rather than the physical-biological destruction of an ethnic, racial, or religious group (Preece 821). 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 234). In Krstić, the ICTY found that a plan to ethnically cleanse the Srebrenica enclave of Muslims escalated into a genocidal plan designed to guarantee that the Bosnian Muslim population would be permanently eradicated (Krstić [Trial Judgment] para. 619). As it has been so aptly put by Schabas, genocide may be the last resort of the frustrated ethnic cleanser (Schabas 234).
C. International Jurisprudence
31 Absent a universally agreed definition or a codified prohibition of ethnic cleansing, international jurisprudence dealing exclusively with ethnic cleansing does not exist. 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. Although the concept of ethnic cleansing has never figured in any of the work of the ICTR (Schabas 229); as far as the ICTY is concerned, the trial chamber in Sikirica pointed out that: ‘Practically every case prosecuted before the International Tribunal has involved ethnic cleansing, in which particular groups have been specifically targeted for various kinds of abuse and mistreatment, including murder and detention’ (Sikirica [Judgment on Defence Motion to Acquit] para. 89 [emphasis added]). Indeed, forced population transfers as a crime against humanity have been the subject of numerous indictments and judgments of the ICTY. The indictments against Slobodan Milosevic, as well as Radovan Karadzic and Ratko Mladić are exemplary (Milosevic [Indictment] para. 35; Karadzic [Indictment] para. 19). Forcible displacements have been considered as crimes against humanity, inter alia, in the Sikirica, Blaskic, Krstić, Krnojelac, Simić, Brdanin, Kupreškić, Blagojević, Stakic, and Milutinović judgments. Notably, the ICTY distinguishes between deportation which is explicitly listed in Art. 5 (d) ICTY Statute and forcible transfer. 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. Forcible transfer within a State has generally been considered as persecution but the jurisprudence of the ICTY indicates that the offence of forcible transfer also constitutes the statutory crime of other inhumane acts (Milutinović [Trial Judgment] para. 171; Stakić [Appeal Judgment] para. 317; Blagojević [Trial Judgment] para. 629; Kupreškić [Trial Judgment] para. 566). Notably, the difference between deportation and forcible transfer has been narrowed by the appeals chamber, which held in Stakić that, under certain circumstances, displacement across a de facto border may be sufficient to amount to deportation (Milutinović [Trial Judgment] para. 169). The expression ethnic cleansing comprises both deportation as well as forcible transfer.
32 Furthermore, the debate whether and at which point ethnic cleansing amounts to genocide has been central to many cases not only of the ICTY (see cases listed above at 15–18). The relationship between genocide and ethnic cleansing has also been at issue in the ICJ’s Bosnian Genocide Case, in Jorgic v Germany (ECtHR), and as far as the national level is concerned in Vuckovic (Supreme Court of Kosovo) as well as in a number of German cases (eg Völkermordkonvention German Federal Constitutional Court [12 December 2000] para. (4) (a) (aa)).
33 As far as case law of the ICJ is concerned, in addition to the above-cited Bosnian Genocide Case, ethnic cleansing, namely the cleansing of ethnic Georgians from their living areas, also features in Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) which is currently pending with the ICJ. Georgia has inter alia contended that: ‘By implementing racially discriminatory policies in South Ossetia and Abkhazia … the Russian Federation has sought to consolidate the forced displacement of the ethnic Georgian and other populations that resulted from “ethnic cleansing” from 1991 to 1994’; and that ‘the ethnic cleansing and other forms of prohibited discrimination carried out against Georgians in Abkhazia, South Ossetia and other regions occupied by Russian forces are still occurring, and that they are likely to continue to occur and to recur’ (Application of the International Convention on the Elimination of All Forms of Racial Discrimination [Georgia v Russian Federation] [Order] [15 October 2008] paras 10, 133).
34 In its concluding observations regarding the report on the Republic of Bosnia and Herzegovina (Documents Submitted in Compliance with a Special Edition of the Committee: Bosnia and Herzegovina) the CERD condemned the displacement of a population to achieve ethnically homogeneous areas because this constituted ‘a grave violation of all the basic principles underlying the International Convention on the Elimination of All Forms of Racial Discrimination’ (Annual Report  para. 219).
35 The UN Sub-Commission on Prevention of Discrimination and Protection of Minorities held that ‘“ethnic cleansing” and other forms of forcible displacement of populations within a country or across borders … threaten the peace and security of States’ (Resolution 1998/27).
36 International responses to forcible population transfers have shifted significantly over the past century. Historically, population transfers were once perceived as a stabilizing factor conducive to resolving various types of conflict. In the pre-World War I, interwar, and early post-World War II periods, the international community was often prepared to accept or even endorse population transfers that fall under the contemporary notion of ethnic cleansing (Preece 840). Henceforth, however, forcible population transfers were increasingly regarded as illegitimate in view of evolving minority rights and human rights standards (Preece, Normative Transformation). Indeed, starting with prosecutions at Nuremberg, yet at the latest by the mid-1990s, in view of events in Yugoslavia and Rwanda, a paradigm shift took place vis-à-vis forcible population transfers in general and ethnic cleansing in particular. Ethnic cleansing with its demonstrated potential to create mass flows of refugees, long-term animosities, and national traumas became increasingly recognized—including by the UNSC (Resolution 941)—as a potential source of international instability and conflict (Special Rapporteurs Al-Khasawneh and Hatano ‘Preliminary Report’ para. 11, Preece 840). As forcible population transfers were increasingly considered violations of international law, ethnic cleansing, aiming at permanent displacements that are intended to frustrate the right to return, became recognized as a particularly grave and under any circumstances unjustifiable form of forcible population transfers. Notably, in 2007, the UNSC, in considering continuing displacement in Darfur, pointed out that ensuring the right to return constitutes a categorical rejection of the gains of ethnic cleansing and sectarian violence and offers some measure of justice to those displaced from their homes and land, thereby removing a source of possible future tension and conflict (Report of the Secretary-General on the Protection of Civilians in Armed Conflict Submitted in accordance with UNSC Resolutions 1674  and 1738  para. 55). The inclusion of ethnic cleansing within the ambit of the responsibility to protect marks the logical continuation of this normative shift in international attitude towards ethnic cleansing (World Summit Outcome paras 138–39; see also UNSC Resolutions 1674  and 1706 ; UNGA Resolutions 60/1 and 63/308). According to the World Summit Outcome Document each individual State has a responsibility to protect its populations inter alia from ethnic cleansing and to prevent such acts, while the international community, through the United Nations, bears the responsibility of helping to protect populations from ethnic cleansing. Whether or not this trend will ultimately culminate in the adoption of a specific international legal instrument pertaining to ethnic cleansing and more generally forcible population transfers is difficult to predict. Already in the 1990s, when attention to ethnic cleansing was at its height in view of ongoing events in Yugoslavia and Rwanda, hopes for such an instrument were expressed. In 1993, Special Rapporteurs Al-Khasawneh and Hatano concluded that the ‘development of law on this global human rights problem of war and peace [forcible population transfer] is long overdue’ and that the ‘political will to ban the practice [of ethnic cleansing] and its inherent elements of racism and ethnic targeting is growing and may now be sufficient to move at all levels towards a relevant international legal code’ (Preliminary Report paras 382, 374). Thus far, these hopes have not materialized. In the meantime, the expression ethnic cleansing has gradually but somewhat incoherently—for the most part in contradistinction to existing legal concepts, especially genocide—been filled with legal meaning. This process still continues and certain ambiguities remain. Notwithstanding, by now the expression is common place and firmly anchored within the international system. Most importantly, ethnic cleansing has been universally condemned and, more recently, it has been included within the ambit of the responsibility to protect. Momentum for further clarification and codification may thus not be lost. Like the Special Rapporteurs in 1993 one may remain hopeful that universal agreement over the prohibition of ethnic cleansing could ultimately lead to a legal code pertaining not only to ethnic cleansing but to forcible population transfers in general.
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