Practice Relating to Rule 129. The Act of Displacement
Section C. Ethnic cleansing
The 2009 Kampala Convention prohibits “[d]isplacement based on policies of racial discrimination or other similar practices aimed at/or resulting in altering the ethnic, religious or racial composition of the population”.
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The Military Manual (2005) of the Netherlands states: “Although it is permitted temporarily to evacuate civilians, it is prohibited to move them for reasons relating to race, skin colour, religion or belief, gender, birth or social status or any other such criterion.”
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states in its chapter on internal armed conflict:
Recent armed conflicts have been blighted by the use of “human shields” to protect military installations from attack and by the practice known as “ethnic cleansing” when people of a certain racial origin or religious beliefs have been murdered or expelled from their homes, which have been destroyed. These practices violate the basic law of armed conflict principles of targeting, discrimination and humane treatment of those hors de combat as well as the basic human rights law principles of non-discrimination on racial or ethnic grounds and in freedom of thought, conscience, and religion. They are likely to be war crimes. Depending on the circumstances, these practices may also amount to crimes against humanity or even genocide.
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Peru’s Law on Internal Displacement (2004) states:
The prohibition of arbitrary displacement includes displacement:
a) based on policies whose object or whose result is the alteration of the ethnic, religious, racial, social or political composition and apartheid and/or ethnic cleansing of the affected population.
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FranceAccording to the Report on the Practice of France, the free return of refugees is a frequent preoccupation of French diplomacy. France often asks for this right to be guaranteed and considers a contrary attitude to be “unacceptable” and implies a deliberate policy of “ethnic cleansing”.
GermanyIn 1993, the German Chancellor stated that ethnic cleansing was deeply inhumane and fell within the notion of genocide.
TunisiaIn 1992, during a debate in the UN Security Council on the situation in the former Yugoslavia, Tunisia stated that it was essential to “put an end to the reprehensible practice of ‘ethnic cleansing’”.
United Kingdom of Great Britain and Northern IrelandIn 1992, during a debate in the UN General Assembly, the United Kingdom declared that “ethnic cleansing” in the former Yugoslavia was “inhuman and illegal”. It added: “We reject as inhuman and illegal any expulsion of civilian communities from their homes in order to alter the ethnic character of the area.”
In 1994, during a debate in the UN Security Council on the situation in Bosnia and Herzegovina, the United Kingdom stated that it was undeniable that “the abhorrent practice of ‘ethnic cleansing’ … is a crime, and a most grievous one”.
United States of AmericaIn 1992, in a report submitted pursuant to paragraph 5 of UN Security Council Resolution 771 (1992) on grave breaches of the 1949 Geneva Convention IV committed in the former Yugoslavia, the United States stated:
The discrete incidents reported herein contain indications that they are part of a systematic campaign towards a single objective – the creation of an ethnically “pure” State. We have not identified “ethnic cleansing” … as a separate category of violations. Nevertheless, the rubric of ethnic cleansing may unite events that appear unconnected and may therefore prove useful in identifying persons and institutions that may be responsible for violations of established international humanitarian law.
In 1998, in reaction to the situation in Kosovo, but also referring to the conflicts in the former Yugoslavia, the US Congress adopted a resolution by unanimous consent stating:
Whereas “ethnic cleansing” has been carried out in the former Yugoslavia in such a consistent and systematic way that it had to be directed by the senior political leadership in Serbia, and Slobodan Milošević has held such power within Serbia that he is responsible for the conception and direction of this policy;
it is the sense of Congress that …
the United States should publicly declare that it considers that there is reason to believe that Slobodan Milošević, President of the Federal Republic of Yugoslavia (Serbia and Montenegro), has committed war crimes, crimes against humanity and genocide.
Yugoslavia, Federal Republic of
In the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro), the Federal Republic of Yugoslavia stated in its counter-memorial submitted to the ICJ in 1997:It is also true that the parties to the conflict went to great lengths to displace the population by force and used criminal methods; … despite the fact that criminal methods were used and these acts can admittedly amount to war crimes and sometimes to crimes against humanity, in no case do they amount to genocide.
188.8.131.52. Reference in a general way to ethnic cleansing cannot satisfy the obligation to prove the existence of the genocidal intent. Ethnic cleansing is loathsome unlawful policy. But if the goal of that policy is to repulse by force, including killings and torture, members of an ethnic or religious group from a certain territory, this excludes “the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. Or, at least, it does not imply the existence of such intent.
184.108.40.206. In … the Application, the Applicant refers to the so-called ethnic cleansing. In para. 19 of the Application, the Applicant points out that “the nearly 2 million Muslim and Croat refugees /were/ expelled from these Serb-held territories. Victims spoke of the use of intimidation and violence to induce them to leave their homes …” None of the acts of “intimidation and violence to induce them to leave their homes” constitute acts of genocide since there is no genocidal intent. Ethnic cleansing is certainly a crime against humanity but it cannot be defined as genocide on the basis of the Genocide Convention.
220.127.116.11. Acts of expulsion of people and destruction of property are illegal according to relevant rules of international law. Such acts can be qualified as crimes against humanity, violations of the law or custom of war or as grave breaches of the Geneva Convention of 1949. (See Articles 2, 3 and 5 of the Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991.) But they cannot be qualified as acts forbidden by the Genocide Convention.
18.104.22.168. According to the Genocide Convention, “ethnic cleansing” is not a crime of genocide. It can be qualified as a grave breach of the Geneva Convention of 1949, violation of the law or customs of war or crime against humanity.
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UN Security Council In various resolutions adopted between 1992 and 1994 in connection with the conflicts in the former Yugoslavia, the UN Security Council condemned the practice of “ethnic cleansing” as a violation of IHL and reaffirmed that “those that commit or order the commission of such acts will be held individually responsible in respect of such acts”.
In a resolution adopted in 1993 on the former Yugoslavia, the UN Security Council expressed its grave alarm at “continuing reports of widespread violations of international humanitarian law … including reports of mass killings and the continuance of the practice of ethnic cleansing”.
In 1994, in a statement by its President, the UN Security Council stated that it deplored “recent acts of violence and terror including ethnic cleansing particularly in Prijedor and Banja Luka” and reaffirmed that “the International Tribunal was established … for the purpose of investigating crimes of this sort, and trying persons accused of committing such crimes”.
UN General AssemblyIn a resolution adopted in 1992 on the situation in Bosnia and Herzegovina, the UN General Assembly called upon “all States and international organizations not to recognize the consequences of the acquisition of territory by force and of the abhorrent practice of ‘ethnic cleansing’”.
In a resolution adopted in 1992 on “ethnic cleansing” and racial hatred, the UN General Assembly reiterated “its conviction that those who commit or order the commission of acts of ‘ethnic cleansing’ are individually responsible and should be brought to justice”.
In a resolution adopted in 1992 on the situation in Bosnia and Herzegovina, the UN General Assembly stated that it considered that “ethnic cleansing” was a form of genocide.
In a resolution adopted in 1993, the UN General Assembly addressed the issue of “ethnic cleansing” in the former Yugoslavia. It condemned violations of IHL:
most of which are committed in connection with “ethnic cleansing” and which include killings, torture, beatings, arbitrary searches, … disappearances, destruction of houses and other acts or threats of violence aimed at forcing individuals to leave their homes, as well as violations of human rights in connection with detention.
In a resolution adopted in 1993 addressing the issue of “ethnic cleansing” in the former Yugoslavia, the UN General Assembly:
Condemns also the specific violations identified by the Special Rapporteur, most of which are committed in connection with ethnic cleansing by Bosnian Serbs, and which include killings, torture, beatings, arbitrary searches, rape, disappearances, destruction of houses, forced and illegal evictions, detentions and other acts or threats of violence aimed at forcing individuals to leave their homes.
In a resolution adopted in 1995 on the situation of human rights in the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia (Serbia and Montenegro), the UN General Assembly expressed its outrage at “ethnic cleansing”.
UN Commission on Human RightsIn a resolution adopted in 1994 on the situation of human rights in the territory of the former Yugoslavia, the UN Commission on Human Rights referred to the perpetrators of ethnic cleansing as “war criminals”.
In a resolution adopted in 1996 on the situation of human rights in Bosnia and Herzegovina, Croatia and the Federal Republic of Yugoslavia, the UN Commission on Human Rights:
Condemns in the strongest terms all violations of human rights and international humanitarian law during the conflict … in particular, massive and systematic violations, including, inter alia, systematic ethnic cleansing … [and] illegal and forcible evictions and other acts of violence aimed at forcing individuals from their homes, and reaffirms that all persons who plan, commit or authorize such acts will be held personally responsible and accountable.
UN Sub-Commission on Human RightsIn a resolution adopted in 1993 on the situation in Bosnia and Herzegovina, the UN Sub-Commission on Human Rights condemned “ethnic cleansing” and stated that this practice had generated displacement on a massive scale.
UN Sub-Commission on Human Rights (Special Rapporteur)In his final report submitted to the UN Sub-Commission on Human Rights in 1997, the UN Special Rapporteur on the Human Rights Dimensions of Population Transfer, including the Implantation of Settlers and Settlements stated:
Acts such as ethnic cleansing, dispersal of minorities or ethnic populations from their homeland within or outside the State, and the implantation of settlers are unlawful, and engage State responsibility and the criminal responsibility of individuals.
Practices and policies having the purpose or effect of changing the demographic composition of the region in which a national, ethnic, linguistic, or other minority or an indigenous population is residing, whether by deportation, displacement, and/or the implantation of settlers, or a combination thereof, are unlawful.
UN Secretary-GeneralIn 1993, in his comment on Article 5 of the 1993 ICTY Statute, which defines the crimes against humanity over which the Tribunal has jurisdiction, the UN Secretary-General noted: “In the conflict in the territory of the former Yugoslavia, such inhumane acts have taken the form of so-called ‘ethnic cleansing’ and widespread and systematic rape and other forms of sexual assault, including enforced prostitution.”
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Council of Europe (Rapporteur)In 1993, in a report on the situation of refugees and displaced persons in the former Yugoslavia, the Rapporteur of the Council of Europe stated that “ethnic cleansing” was a crime against humanity and that those committing those crimes should be searched for and brought to justice.
Council of Europe Parliamentary AssemblyIn a resolution adopted in 1993, the Council of Europe Parliamentary Assembly declared “its profound consternation at the massive and flagrant violation of human rights in the territory of the former Yugoslavia and at the perpetration of crimes against humanity such as … ‘ethnic cleansing’ and the deportation of entire populations”.
GCC Supreme CouncilIn the Final Communiqué of its 13th Session in 1992, the GCC Supreme Council stated that it followed with grave concern and deep regret the degradation of the situation in Bosnia and Herzegovina, including the “carrying out of the worst crimes of racial extermination”.
GCC Supreme Council In the Final Communiqué of its 14th Session in 1993, the GCC Supreme Council noted: “The international economic sanctions imposed on the Serbs have had no noticeable effect in … halting their systematic practices of ethnic cleansing.”
League of Arab States Council In a resolution on Bosnia and Herzegovina adopted in 1992, the League of Arab States Council decided “to call upon the Serbian forces to put an immediate end to all activities aimed at changing the demographic structure of the Republic of Bosnia and Herzegovina”.
Organization of the Islamic ConferenceIn 1992, the OIC Ministers of Foreign Affairs stigmatized “with force” massive violations of IHL in Bosnia and Herzegovina and considered that the policy of “ethnic cleansing” and forced deportation of Muslims and Croats constituted a genocide and a crime against humanity.
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World Conference on Human Rights In the Vienna Declaration and Programme of Action, the World Conference on Human Rights in 1993 expressed “its dismay at massive violations of human rights especially … ‘ethnic cleansing’ … creating mass exodus of refugees and displaced persons”. It reiterated “the call that perpetrators of such crimes be punished and such practices immediately stopped”.
International Conference for the Protection of War Victims In the Final Declaration of the International Conference for the Protection of War Victims in 1993, the participants declared, inter alia, that they “refuse to accept that the civilian populations … are victims of the odious practise of ‘ethnic cleansing’”.
Conference of Heads of State or Government of the Non-Aligned Countries The Eleventh Conference of Heads of State or Government of the Non-Aligned Countries in 1995 reiterated that those who committed or ordered to be committed practices of “ethnic cleansing” in the former Yugoslavia were personally responsible and that “the international community should make every effort to bring them to justice”.
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International Court of Justice
In its judgment on the merits in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro) in 2007, the ICJ stated:
The term “ethnic cleansing” has frequently been employed to refer to the events in Bosnia and Herzegovina which are the subject of this case; see, for example, Security Council resolution 787 (1992), para. 2; resolution 827 (1993), Preamble; and the Report with that title attached as Annex IV to the Final Report of the United Nations Commission of Experts (S/1994/674/Add.2) (hereinafter “Report of the Commission of Experts”). General Assembly resolution 47/121 referred in its Preamble to “the abhorrent policy of ‘ethnic cleansing’, which is a form of genocide”, as being carried on in Bosnia and Herzegovina. It will be convenient at this point to consider what legal significance the expression may have. It is in practice used, by reference to a specific region or area, to mean “rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area” (S/35374 (1993), para. 55, Interim Report by the Commission of Experts). It does not appear in the Genocide Convention; indeed, a proposal during the drafting of the Convention to include in the definition “measures intended to oblige members of a group to abandon their homes in order to escape the threat of subsequent ill-treatment” was not accepted (A/C.6/234). It can only be a form of genocide within the meaning of the Convention, if it corresponds to or falls within one of the categories of acts prohibited by Article II of the Convention. Neither 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: the intent that characterizes genocide is “to destroy, in whole or in part” a particular group, and deportation or displacement of the members of a group, even if effected by force, is not necessarily equivalent to destruction of that group, nor is such destruction an automatic consequence of the displacement. This is not to say that acts described as “ethnic cleansing” may never constitute genocide, if they are such as to be characterized as, for example, “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”, contrary to Article II, paragraph (c), of the Convention, provided such action is carried out with the necessary specific intent (dolus specialis), that is to say with a view to the destruction of the group, as distinct from its removal from the region. As the ICTY has observed, while “there are obvious similarities between a genocidal policy and the policy commonly known as ‘ethnic cleansing’” (Krstić, IT-98-33-T, Trial Chamber Judgment, 2 August 2001, para. 562), yet “[a] clear distinction must be drawn between physical destruction and mere dissolution of a group. The expulsion of a group or part of a group does not in itself suffice for genocide.” (Stakić, IT-97-24-T, Trial Chamber Judgment, 31 July 2003, para. 519.) In other words, whether a particular operation described as “ethnic cleansing” amounts to genocide depends on the presence or absence of acts listed in Article II of the Genocide Convention, and of the intent to destroy the group as such. In fact, in the context of the Convention, the term “ethnic cleansing” has no legal significance of its own. That said, it is clear that acts of “ethnic cleansing” may occur in parallel to acts prohibited by Article II of the Convention, and may be significant as indicative of the presence of a specific intent (dolus specialis) inspiring those acts. [emphasis in original]
International Criminal Tribunal for the former Yugoslavia
In the Simić case in 2002, the principal accused was charged with crimes against humanity for carrying out persecutions (deportation or forcible transfer of non-Serb citizens from the Bosanski Šamac municipality in Bosnia and Herzegovina). In its judgement in 2003, the ICTY Trial Chamber stated that “deportation and forcible transfer are closely linked to the concept of ‘ethnic cleansing’”.
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