Yugoslavia, Federal Republic of
Practice Relating to Rule 129. The Act of Displacement
Section A. Forced displacement
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:
220.127.116.11. 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.
18.104.22.168. 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.
22.214.171.124. 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.
126.96.36.199. 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.
In its oral pleadings before the ICJ in 2006, Serbia and Montenegro stated:
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.