Ethnic Cleansing

A Legal Qualification

Clotilde Pegorier

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781134067909
• Edition: 1
• Topic: Jura
• Subtopic: Völkerrecht

This book confronts the problem of the legal uncertainty surrounding the definition and classification of ethnic cleansing, exploring whether the use of the term ethnic cleansing constitutes a valuable contribution to legal understanding and praxis. The premise underlying this book is that acts of ethnic cleansing are, first and foremost, a criminal issue and must therefore be precisely placed within the context of the international law order. In particular, it addresses the question of the specificity of the act and its relation to existing categories of international crime, exploring the relationship between ethnic cleansing and genocide, but also extending to war crimes and crimes against humanity. The book goes on to show how the current understanding of ethnic cleansing singularly fails to provide an efficient instrument for identification, and argues that the act, in having its own distinctive characteristics, conditions and exigencies, ought to be granted its own classification as a specific independent crime.

Ethnic Cleansing: A Legal Qualification, will be of particular interest to students and scholars of International Law and Political Science.

1 Introduction

The origins of ethnic cleansing and its emergence in law

1.1 ‘Ethnic cleansing’: origins and ambiguities

The decade of the 1990s was a challenging period for international criminal justice with violent mass murder being perpetrated in numerous locations across the globe. The nature and extent of the atrocities committed in the former Yugoslavia and Rwanda attracted particular attention from the international community. In response to events in these regions, the UN Security Council determined to create two ad hoc international criminal tribunals – the International Criminal Tribunal for the former Yugoslavia (hereafter ICTY)¹ and the International Criminal Tribunal for Rwanda (hereafter ICTR)² – charged with the jurisdictional mandate of prosecuting those responsible for serious violations of international law. In fulfilling their aim, the tribunals qualified numerous acts under the established paradigms of genocide, crimes against humanity and war crimes, as grave breaches of the Geneva Conventions of 1949 or as violations of Article 3 common to the Geneva Conventions and Additional Protocol II.³ Many of the crimes committed against the civilian population in the former Yugoslavia, however, were classified – by journalists,⁴ scholars⁵ and United Nations resolutions⁶ – under a new coinage that has subsequently entered the legal lexicon and become established in academic and popular discourse – as acts of ‘ethnic cleansing’.

The use of this term was somewhat peculiar insofar as ethnic cleansing had never before been discussed, let alone qualified, as an international crime.⁷ In fact, from the very beginning, numerous commentators across various disciplines voiced objections to its use, uneasy with the resort to a new term, which, on the one hand, was seen to derive from the vocabulary of modern journalism rather than legal sources, and, on the other, was considered imprecise and hazy, even as a dangerous euphemism for genocide.⁸ Gregory H. Stanton, Rony Blum, Shira Sagi and Elihu D. Richter, for instance, in a co-written article, criticised the deployment of the term on the grounds that it ‘bleaches’ the atrocities of genocide and, as such, ‘corrupts observation, interpretation, ethical judgment and decision-making’.⁹ Moreover, the use of the term signals, they submit, a ‘lack of will to stop genocide’,¹⁰ resulting in higher death tolls and undermining legal obligations to acknowledge the perpetration of genocide – the central point being that ethnic cleansing, in contrast to genocide, has no recognised legal status. More recently, Martin Shaw has similarly upheld the view that ethnic cleansing is problematic, arguing that the actions usually understood under the rubric invariably amount to modes of ethnic removal that fall under Raphael Lemkin’s original concept of genocide as ‘the destruction of a nation or of an ethnic group’, and that the use of the term ethnic cleansing thus serves only to deflect from the recognition of genocidal instances.¹¹

Further to such questions relating to the overlaps between ethnic cleansing and genocide, and how the use of the former might affect acknowledgement of the latter, critical voices have also been raised with regards to the moral implications of the vocabulary of ethnic cleansing. At an everyday level, for example, the Gesellschaft für deutsche Sprache (The Association for the German Language) in 1992 chose the equivalent term ethnische Säuberung as one of its ‘Unwörter des Jahres’ – an ‘Unwort’ being a word deemed not only infelicitous but also undesirable or unwelcome – on the very grounds that the metaphor of ‘cleansing’ immorally connotes a positive sense of rendering free from impurity, and so masks the true reference to the violent removal, expulsion or even murder of a people on the basis of ethnic identities. Academic scholars have subsequently noted and expanded on this point, with even those who argue for the validity of the term conceding its troubling associations. Andrew Bell-Fialkoff, for instance, opens his wide-ranging sociological study by stating:

The term ‘cleansing’ itself is ambiguous. In everyday use it has positive connotations of cleanliness and purification, evoking soap and water. But when applied to human populations it refers to refugees, deportation, and detention. It spells suffering. And that is why the term is widely used: it is a euphemism that hides the ugly truth.¹²

Michael Mann, in his analysis of the connections between the practice of ethnic cleansing and the institutions of democracy, likewise acknowledges the euphemistic dangers of the term,¹³ while Norman M. Naimark, in his historical account of ethnic cleansing in the twentieth century, nods to the fact that there is ‘nothing clean about ethnic cleansing. It is shot through with violence and brutality in the most extreme form’.¹⁴ The ambiguities and moral dilemmas that exist in the employment of ‘cleansing’ in this latter sense can, moreover, be traced through a pre-history that goes back some considerable way beyond its initial conjunction with ‘ethnic’ in the specific context of the conflict in the former Yugoslavia.¹⁵ Indeed, as Mary Douglas has shown, concepts of cleanliness and purity have long since been seen to symbolise the ‘good’ society, while their deployment also inevitably invokes their opposites – uncleanliness and impurity.¹⁶ Frequently – and all too regrettably – the ‘dirt’ that Douglas famously termed ‘matter out of place’ is human matter: those who are considered unclean or impure are deemed to represent a threat to the health of the state, nation or community and so must be removed. In his study, Mann develops this point to suggest that such processes of ‘cleansing’ are particularly entwined with the forms of modern democratic statehood, putting forward the view that ‘cleansing is a hazard of the age of democracy since amid multi-ethnicity the ideal of rule by the people began to intertwine the demos with the dominant ethnos, generating organic conceptions of the nation and the state that encouraged the cleansing of minorities’.¹⁷

In making this claim, Mann illuminates an important aspect of the nexus between modernity and mass violence. At the same time, he rightly notes how examples of cleansing are not so much a direct by-product of democracy itself but rather a result of its corruption, and that ‘regimes newly embarked upon democratization are more likely to commit murderous ethnic cleansing than are stable authoritarian regimes’.¹⁸ Yet the starkest and darkest episodes of cleansing – the Holocaust and the Soviet terror, for instance – exhibit only a faint connection to democracy and are indeed the product of highly authoritarian regimes: in such cases, Mann acknowledges that the political leadership deviates from the normal standards of authoritarianism and ‘mobilize[s] majoritarian groups into a mass party-state mobilizing the people against “enemy” minorities’.¹⁹ In both of the historical episodes alluded to here, the vocabulary of cleansing certainly found widespread expression. As Eric D. Weitz writes of Stalin’s revolutionary attempt to remould Soviet society and eliminate a whole generation of Communist leadership, for example:

From the very beginning, the rhetoric of the Russian revolution was infused with the biologically charged language of “cleaning out”, “social prophylaxis”, and “purge” itself. In relation to the ethnic and national groups deported from the late 1930s into the early 1950s, the Soviets spoke of “cleansing actions” against “suspect” or “enemy” nations, against social parasites or vermin (parazity, vrediteli). These “vermin” could not repent and join the socialist fold; their very being placed them outside the collective body. As sources of pollution (zasorenost’) or filth (griaz), they endangered the “health” of the social body.²⁰

Nazi propaganda against the Jews was similarly replete with such images of uncleanliness and impurity – as Weitz further notes, the entire rhetoric of Nazi anti-Semitism was suffused with the supposed dangers of pollution from ‘Jewish blood’.²¹ The invasion of Russia, the victories in France and Poland, as well as the anticipation of a conquest of Lebensraum and an ideological (racial) crusade against ‘Judeo-Bolshevism’ in the Soviet Union were, moreover, considered at the time the necessary elements for rendering Europe judenrein – literally ‘free of jews’ (’rein’ and its cognate ‘Reinheit’ both carry a quite specific sense of ‘purity’).²² This demand for purity carried with it the seeds for the veritable purge that followed, and it pays to briefly consider the semantic equivalencies of the verbs ‘to cleanse’ and ‘to purge’, particularly as they compare with the associated terminology in German. There, the term Säuberung has been established as a normative reference for acts of ‘cleansing’ and serves as the common root for three expressions related thereto: ethnische Säuberung, politische Säuberung and Die grosse Säuberung. The English equivalents are, however, ‘ethnic cleansing’, ‘political purge’ and ‘The Great Purge’ (in the specific historical context of the Soviet Union) respectively – in other words, the commonality conveyed by the single expression Säuberung in German is, in English, seemingly split by the use of both ‘cleansing’ and ‘purging’.²³ A glance at the Oxford English Dictionary (hereafter OED) would perhaps suggest this to be of scant consequence – ‘to purge’ is, for instance, initially defined as ‘[t]o remove by a cleansing or purifying operation (also fig.); to clear away, off, or out; to expel or exclude, to excise’, followed by the caveat: ‘in recent use: esp. to remove (a person regarded as undesirable) from an organization, political party, etc.’²⁴ Yet despite such considerable overlap, ‘to purge’ nonetheless carries a more violent connotation than the gentler ‘to cleanse’, and though both expressions convey something of the general sense of exclusion or expulsion that inheres in the nature of the acts in question, the duality implies a distinction, however minor, in terms of action – this in contrast to the German, which regulates this aspect under the one term, Säuberung, and differentiates on the basis of the targeted group(s) and intentionality of the act (i.e. ethnische [ethnic] or politische [political]). In both linguistic cultures, however – and this is doubtless the critical point – the euphemistic employment of the concept of ‘cleansing’ in this context does serve to conceal rather than reveal the frequent horrors and violence involved in such situations.

Yet if the concept of Säuberung has, in recent times, become established in such fashion as a normative reference, it nonetheless remains the case that alternative expressions have at times been used in the German context to describe such actions, notably in the arena of late nineteenth- and early twentieth-century racial science and, particularly, during the Nazi era. Naimark, for instance, pulls out the example of völkische Flurbereinigung – a term that was, he tells us, one of Himmler’s favoured expressions for referring to the Aryanisation of German territories.²⁵ Borrowed from the vocabulary of agriculture, a Flurbereinigung describes a ‘cleansing of the soil’ (stemming from ‘rein’ and ‘Reinheit’, ‘Bereinigung’ likewise implies a sense of ‘purity’), which, in accordance with Nazi ideologies, is here co-opted to connote the removal of alien elements from the national soil. This latter aspect is of particular note, as by directly appending the idea of the Volk to the practice of removal, Nazi propaganda machinery provides an important historical placing and precursor for the emergence of the modern term ‘ethnic cleansing’. The concept of the Volk – and what may constitute a particularly völkisch action – is notoriously difficult to define: at root, it designates that which is unique to a particular people and so serves as a marker of national (and, in the Nazi context especially, ethnic and racial) identity. It is, however – and despite Nazi rhetoric – a largely artificial category, socially constructed so as to reinforce the identity of the collective self, and at the same time, inevitably, to define and extrude the ‘Other’ who falls outside the contours of the dominant group. As Naimark goes on to point out, such issues remain very much embedded within the contemporary discour...