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research methodology:
The research conducted herein is primarily “doctrinal” in nature, with the help of various international instruments and judgments decided by the judicial authorities in the international sphere.
research questions:
Basic Questions:
Through the medium of this project the basic questions that have been asked are:
What is meant by ethnic cleansing and genocide?
Secondly whether there exists any difference between the two?
What are these differences?
HYPOTHESIS:
There exist distinguishing factors between both the crimes of genocide and ethnic cleansing, the only distorting factor is when the latter is achieved by committing genocide. Both, ought to be treated as equally grave crimes committed against humanity. Moreover, a need is felt for stricter laws on ethnic cleansing in order to serve as deterrence to the same.
objects and aims:
The project has been made on the basic premise of the crime of Ethnic Cleansing with the background of the break up of the Former Yugoslavia, replete with crimes of a grave nature. In order to understand this concept of Ethnonationalism, it is also important to understand
another international crime, genocide. Ergo, this project aims at achieving the following in lieu of the research available:
To attain clarity as to the concepts of “Ethnic Cleansing” and “Genocide”.
To surmise the incidents of the two types of international crimes and look at various judicial interpretations and legal instruments for the same.
To try and arrive at a clear cut distinction between these two concepts which can be perceived to be intertwined.
This project aims at serving as a panacea to innumerable ambiguities found on the laws of ethnic cleansing and to acquaint various interested parties on the aforementioned topic which is, as of now, a morass of laws involved.
INTRODUCTION:
“As long as I have any choice, I will stay only in a country where political liberty, toleration, and equality of all citizens before the law are the rule.”
-Albert Einstein.
For centuries, man has been fighting with his brother, over man-made issues of differences in their status, nationality, race, colour, religion to name a few. In India itself, this differentiation has taken shape in the form of differences in class, differences between Muslims and Hindus, Sikhs and Christians, recent incidents taking place in Orissa and Kerala are gory examples of the same. In fact, this in essence has also taken place in Maharashtra in 2008 wherein almost 20,000 North Indians fled Pune and other such cities, the same revealed by an article in the Indian Express. Statistics in fact have shown that man is being a threat himself to another man causing his mass exodus.
Despite the advancement in technology man doesn’t seem to want to co-exist with another, a deficiency which will lead to its self-destruction sooner or later. This is essentially the concept of ethnic cleansing, an international crime progressively taking more antagonistic forms as time passes.
In principle, an ethnic group [1] would be defined as a community whose heritage offers important characteristics in common between its members and which makes them distinct from other communities. There is a boundary, which separates ‘us’ from ‘them’, and the distinction would probably be recognized on both sides of that boundary. Ethnicity is a multi-faceted phenomenon based on physical appearance, subjective identification, cultural and religious affiliation, stereotyping, and social exclusion. [2]
The phrase ethnic cleansing was originally introduced by reporters covering the Yugoslav wars of disintegration between 1991 and 1995, but as a course of action it is much older than that. [3] By definition, it has been defined as a phenomenon wherein one ethnic group expels members of other ethnic groups from a geographic area in order to create ethnically pure enclaves for members of their ethnic group. [4]
However, the complexities involved when it comes to ethnic cleansing, is that till date despite the number of occurrences there exists a blur when it comes to differences between genocide and ethnic cleansing. [5] Also, the number of incidents wherein ethnic cleansing has taken place makes one question the effectiveness and the authority of the UN and the several other peace keeping bodies. [6]
It is also pertinent to note that while in theory, the purpose of ethnic cleansing is to drive all members of the victimized group out of a territory. In practice, ethnic cleansing is nearly synonymous with genocide because mass murder is a common characteristic of both. Though, therefore, there is a thin line between the two crimes, it is the need of the hour to differentiate between the two crimes and do away with the pervasive ambiguities.
analysis:
genocide and its incidents:
In order, to be able to differentiate between the concepts of genocide and ethnic cleansing it is first important to understand each of these concepts individually. Ergo, this part will basically focus on the definition of genocide as arrived at in several landmark judgments and also its main essentials, with the natural corollary of looking at the definition of ethnic cleansing.
The term ‘genocide’ was coined by Raphael Lemkin using the combination of the Greek word genos (race or tribe) and the Latin word cide (killing). [7] Article II of the Convention on the Prevention and Punishment of the Crime of Genocide, 1948 defines the term genocide to include killing, causing serious bodily or mental harm, amongst several other things [8] , which was accepted as being part and parcel of the customary international law or jus cogens in the case of Prosecutor v. Goran Jelisic. [9]
The case of Advisory Opinon of the International Court of Justice (ICJ) in Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, defines genocide as follows:
“a crime under international law involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, which is contrary to moral law and to the spirit and aims of the United Nations.” [10]
Genocide without exceptions made is considered to the most despicable crime when it comes to crimes against humanity, which is why Courts are reluctant in arriving at a conclusion which affirms the existence of genocide. It essentially requires two components for the said crime to take the form of ‘genocide’, viz. Actus Reus and Mens Rea. These go hand in hand wherein if any of the acts mentioned above have been committed with the necessary specific intent (dolus specialis). [11]
In the Jelisic [12] case it was held that the special nature of this intent supposes the discriminatory nature of the act wherein a group is targeted discriminatorily as such and in this context genocide is closely related to the crime against humanity. [13] The Court again found the existence of this specific intent in the case of Akeysu [14] wherein the Trial Chamber I held that the rape of Tutsi women in Rwanda in 1994 constituted the crime of genocide. [15] In the case of Bosnia-Herzegovina v. Yugoslavia it was held that genocide could be committed both at time of peace as well as of armed conflict. [16]
Therefore, a perusal of the aforementioned cases clearly shows there is a need of specific intent in case of indictments for the crime of genocide. [17]
Ethnic Cleansing and its incidents:
The 1990s has had the most number of instances wherein the crime of ethnic cleansing has been recorded. This has been attributed by the UN to various political parties which indulge in the same by ruling various States. This power was clearly wielded by the Shiv Sena party in Maharashtra with their jingoistic tactics in expelling Non-Maharashtrians. Black’s Law Dictionary defines ethnic cleansing as:
“The officially sanctioned forcible and systematic diminution or elimination of targeted ethnic minorities from a geographic area by confiscating real and personal property, ordering or condoning mass murders and mass rapes and expelling the survivors.”
Few authors are of the opinion that the crime of ethnic cleansing is a 20th Century phenomenon while most others disagree. [18] A prototype of ethnic cleansing can be taken from the experience of the Jews during the Nazi Regime, where in order to create Lebensraum, or “living space”, Hitler, the dictator started an expansionist drive to create a pure Germany. The term ethnic cleansing, a literal translation of the Serbo-Croatian phrase etnicko ciscenje, has resulted in a lot of atrocities like mass killings as well as rape as a means of creating supremacy over the minorities. [19]
In many of these campaigns, women were targeted for particularly brutal treatment-including systematic rape and enslavement-in part because they were viewed by perpetrators as the “carriers,” biologically and culturally, of the next generation of their nations. Because many men in victimized populations left their families and communities to join resistance groups once violence began, women and children were often defenseless. [20] Statistics shows that the Bosnia-Herzegovina war envisaged a shocking estimate of 20,000 women who endured sexual assaults in the form of either torture or rape. Serbian political and military leaders systematically planned and strategically executed this policy of ethnic cleansing or genocide with the support of the Serbian and Bosnian Serb armies and paramilitary groups to create a “Greater Serbia”: a religiously, culturally, and linguistically homogenous Serbian nation.5 [21] The promulgation of the concept of “ethnic cleansing” and the practices it represents are a grim, contemporary reminder of the global nature of interethnic and interracial inequality and strife. [22]
The following passage taken from an article is proof of the mass destruction and depraved justice that took place during the Bosnia-Herzegovina War:
“More than two million people-almost half the population- are still dispossessed of their homes. Some 600,000 of these are refugees abroad who have not yet found durable solutions, many of whom face the prospect of compulsory return into displacement within Bosnia and Herzegovina in the near future. Another 800,000 have been internally displaced to areas in the control of their own ethnic group, living in multiple occupancy situations, in collective centres or in property vacated by the displacement of others, often in situations of acute humanitarian concern. The fundamental issue for the future of the post-war society of Bosnia and Herzegovina is whether these people can or will return to their homes.” [23]
A case study shows that the challenges of post 1980 former Yugoslavia were exacerbated by the country’s demographic and socio-cultural make-up, comprising several ethnonationalities with different religions, mentalities, histories and levels of development. In the Federal Republic of Yugoslavia, Croatia, and Bosnia and Herzegovina the authoritarian regimes and their leaders were the main sources of human rights violations. Nationalism and hatred of other peoples and religions were probably the reasons for the brutal break up of the former Yugoslavia. Ethnonationalism was, and has largely remained, widely and deeply entrenched among the constituent groups. [24]
Various authorities indicate that the notion of ethnic cleansing takes place when there is a deportation of mass population on the basis of their ethnic differences in order to create a homogenous ethnic State. While a crime like genocide inevitably results in imposing criminal liability, it has been stated by several authors that since the term ethnic cleansing does not appear in any of the laws the same is not punishable as long as genocide, rape or other crimes against humanity have not been used, which have been banned by several legal instrument. [25]
This argument however is to be rendered untenable [26] as though, ethnic cleansing per se doesn’t feature under the Rome Statute of the International Criminal Court, it can be included under crimes against humanity under Article 7 which speaks of ‘Deportation or forcible transfer of population’ [27] equivalent to ethnic cleansing. Moreover, a perusal of the Statute of the International Tribunal for the Former Yugoslavia under Article 4 [28] also makes the crime of ethnic cleansing punishable.
The Trial Chamber [29] in a particular case was satisfied beyond reasonable doubt that the crimes that were committed in the Bosnian Krajina from April 1992 until the end of December 1992, the period relevant to the Indictment, occurred as a direct result of the over-arching Strategic Plan. The ethnic cleansing was not a by-product of the criminal activity; it was its very aim and thus an integral part of the Strategic Plan. [30]
Therefore, a perusal of the aforementioned authorities helps one understand essentially the concept of ethnic cleansing and the essentials thereof.
differences between the two:
Andrew Bell-Fialkoff in his book, has remarked that… “the crime of ethnic cleansing defies easy definition. At one end it is virtually indistinguishable from forced emigration and population exchange while at the other it merges with deportation and genocide. At the most general level, however, ethnic cleansing can be understood as the expulsion of a population from a given territory.” [31]
Different authors have different opinions regarding the differences between these two, while some state such a difference exists only in theory while other claim it to exist practically as well.
From a perusal of the above, genocide and ethnic cleansing can be differentiated in three ways:
(1) Need of intent: Genocide could be a means to commit ethnic cleansing, but the purpose of such a crime then would not be murder but would be otherwise. Furthermore, in contrast to genocide, there is no need for special intent under the crime of ethnic cleansing, making it easier for parties to establish a crime of ethnic cleansing in comparison to a charge of genocide leveled against a particular party to the dispute. [32] It has been found under various texts that the requirement of specific intent is not found under ethnic cleansing, making it easier to prove before the International Courts in comparison to the crime of genocide. [33]
(2) The purpose: The purpose under genocide is the physical destruction of an ethnical, racial or a religious group, while that of ethnic cleansing is the founding of ethnically homogeneous lands. The means used for the latter could also be genocide. [34]
(3) Ends achieved: While genocide results in physical destruction of a particular minority groups, ethnic cleansing results in the flight of a community not necessarily mass killing. [35]
As found in the previously, it may not always be feasible to point out differences between the two. In fact, this clear cut distinction has been reduced by various subsequent measures taken by the authoritative bodies. In 1992 concerning the hostilities in Yugoslavia, the UN General Assembly [36] clearly stated that ethnic cleansing is “a form of genocide”. [37]
To worsen the situation, in the case of Prosecutor v. Krstic, [38] , the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY), expressly diverging from the wider interpretation of the notion of “intent to destroy” by the United Nations made a difference between ethnic cleansing and genocide.
“an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide.”
Similarly, in the case of Bosnia and Herzegovina v. Serbia and Montenegro (“Case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide”) the International Court of Justice [39] have also upheld the above judgment based on the same reasoning. [40] Various scholars also have given views similar to that found in the above cases wherein a distinction has been made between the two offences. [41]
Therefore, there remains doubt in this unchattered territory, but courts generally refrain from holding a state or an official responsible for the offence of genocide in comparison to that of ethnic cleansing.
Conclusion:
From an analysis of the above judgments, we find that there exists a very thin line between the concepts of genocide and that of ethnic cleansing. There is a need to attain consistency with regard to the various opinions on the same, consistency being an essential or cannon of any law. The basic bone of contention is in fact this lack of uniformity in interpreting the law by the courts.
That apart, a need is felt that stricter international norms be laid down in order to ensure that a crime like ethnic cleansing taking the form of international crimes like rape, genocide does not take place at the ferocity that it has been since the 1990s. [42]
It should be realized by the UN and various other monitoring bodies that it is imperative that a clear cut distinction be made between the two, agreed, a strait-jacket formula cannot be applied, but it should lay down certain parameters for determining when ethnic cleansing takes place. As of now, the definition of the said terms remains uncertain in international law.
States should realize that even the magna carta Universal Declaration of Human Rights [43] ordains equality on each and every human being, which would immediately render the offence of ethnic cleansing purposeless. [44]
It is to be necessarily understood that, “As long as the criminals are divided into “ours” and “theirs”; as long as ethnic discrimination is not replaced with moral and professional criteria; as long as already initiated democratic processes do not take roots; there will be little chance of reconciliation, economic development and respect for the human rights and freedoms. [45]
Therefore, an attempt has been made by virtue of this project to understand the basic differences between these two types of crimes which are basically instigated against other human beings and the same conclusion has been arrived at with the help of leadings judgments and opinions of various authors on the same.
Ethnic cleansing results in the division of a particular country into several fragments, there more the disputes the more these fragments will break and finally there shall be nothing for one to offer.
This has been aptly illustrated in the following paragraph:
“In Germany they first came for the communists; and I didn’t speak up because I wasn’t a communist. Then they came for the Jews; and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists; and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics; and I didn’t speak up because I wasn’t a Catholic. Then they came for me – and by that time there was nobody left to speak up.”
