| |
|
 |
|
 |
|
 |
|
 |
|
  |
|
 |
|
  |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
Ethnic Cleansing - An Attempt at Methodology
IV. Ethnic Cleansing and International Law
The relationship between ethnic cleansing as a policy and international humanitarian law,89 understood in a broader sense, could be analysed on three levels,90 which however do not exclude each other.
A. The Geneva Conventions
Most ethnic cleansing methods are grave breaches of the 1949 Geneva Conventions and 1977 Additional Protocols. Even a superficial survey of the actions listed above supports this conclusion.
In fact, when the UN Security Council used the term ethnic cleansing for the first time in Resolution 771 (1992) of 13 August 1992, it expressly stated that it violated international humanitarian law.91
Even in this case, analysing only the violations of the 1949 Geneva Conventions and 1977 Additional Protocols, it is necessary to make a distinction between `individual criminality' and `system criminality'.92
B. Crimes Against Humanity
These are described in the Charter of the International Military Tribunal which was held at Nuremberg.93 The UN Secretary-General, in his proposal on the Statute of the Tribunal for former Yugoslavia, explained that `crimes against humanity are aimed at any civilian population', and listed the examples of murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecutions on political, racial and religious grounds, and other inhuman acts.94 The Commission of Experts established by the Security Council understands those crimes to mean
toute violation flagrante des règles fondamentales du droit humanitaire et du droit relatif aux droits de l'homme, commise par une personne dont il peut être établi qu'elle appartient à une partie au conflit, dans le cadre d'une politique officielle de discrimination à l'encontre d'un groupe déterminé de personnes, qu'il y ait ou non de guerre et quelle que soit la nationalité de la victime.95
It is apparent that a policy of ethnic cleansing, aimed at the elimination of a population from a given territory, without precise designation of the target group and without any clear intention of their destruction as a group, could fit into the definition of crimes against humanity. The majority of ethnic cleansing policies in former Yugoslavia appear to correspond to crimes against humanity, given that they are a systematic and massive attack on the civilian population. All `parties in the conflict' have committed some of the acts listed above as components of ethnic cleansing, and there are a large number of victims belonging to the different nations. In fact, the Secretary-General has pronounced that:
in the territory of former Yugoslavia, such inhuman acts have taken the form of so-called ethnic cleansing and widespread and systematic rape and other forms of sexual assault; including enforced prostitution.96
C. Genocide
The inevitable question is whether the violations of international humanitarian law which have occurred in Bosnia could be considered as isolated incidents without implying a specific intent. In other words, could we consider extreme examples of ethnic cleansing as crimes of genocide? International affairs after World War II had not encompassed specific events that warranted labelling as genocide until the outbreak of war in Bosnia and Herzegovina.97
Helsinki Watch98 was the first NGO to define the situation unfolding in the territory as genocide. Further, it is significant that genocide was recognized in Article 4 of the Statute of the International Tribunal for the Former Yugoslavia of 1991,99 as a part of its ratione materiae competence.100
The term also appeared in Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro) in which the former sought the enforcement of the Convention on the Prevention and Punishment of the Crime of Genocide before the International Court of Justice.101 Both Parties mentioned this crime in their respective requests for provisional measures. The Court noted that the crime of genocide:
shocks the conscience of mankind, results in great losses to humanity ... and is contrary to moral law and to the spirit and aims of the United Nations, as reads General Assembly Resolution 96(1) of 11 December 1946.
The Court went on to conclude that:
(...) great suffering and loss of life has been sustained by the population of Bosnia-Herzegovina in circumstances which shock the conscience of mankind and flagrantly conflict with moral law and the spirit and aims of the United Nations.102
UN General Assembly Resolution 47/121 of 18 December 1992 is very explicit in its paragraph 9 of the Preamble, declaring that:
(...) the abhorrent policy of `ethnic cleansing' (which) is a form of genocide...
It could be considered that the conclusion of the Commission on Human Rights in its Resolution 1992/S-1/1, without mentioning the word, could mean genocide.103 Later on, in its Resolution 1992/S-2/1,104 of 1 December 1992, the Commission on Human Rights
calls upon all States to consider the extent to which the acts committed in Bosnia and Herzegovina and in Croatia constitute a genocide, according to the Convention on the Prevention and Punishment of the Crime of Genocide.105
The Genocide Convention defines genocide as the intentional destruction of a group, in whole or in part. From this definition we can distinguish three elements to be applied to the specific situation: destruction, specific characteristics of a target group, and intention.106
Genocide need not involve the destruction of a whole group.107 As is stated in the Whitaker Report:
`in part' would seem to imply a reasonably significant number relative to the total of a group as a whole, or else a significant section of a group such as its leadership.108
In the case of Bosnia and Herzegovina there is evidence (e.g. UN studies and reports by the media) that the majority of the victims of ethnic cleansing belong to one national group - the Muslims - and that they are further threatened by extermination.109 This is a specific national group, recognized as a nation in various legal acts, including constitutional provisions. They are also identifiable by reference to their religious and cultural background.
The number of victims is very difficult to ascertain under the present circumstances, but it is obvious that they represent a significant part of the total population. It has been reported that the Muslim victims were mostly people that were supposed to be protected by international humanitarian law, and this in itself implies the intention to destroy Muslims as a people. Furthermore, there are numerous examples of villages and parts of towns being shelled in the complete absence of strategic or other military benefit, but in which Muslims formed a majority of the population.
Certain categories of the Muslim population were especially subjected to torture, deportation and killing; namely intellectuals, political and religious leaders and the wealthy. These categories could represent `leadership' within the interpretation of the Genocide Convention.
Genocidal acts are enumerated in Article II of the Genocide Convention, and I will briefly attempt to determine if some of the methods of ethnic cleansing fall within their parameters. The acts listed in the Convention are: killing members of a group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group, and forcibly transferring children of the group to another group. `Causing serious bodily or mental harm to members of a group' could be achieved by torture and terror in concentration camps, the siege of towns, rape,110 and destruction of national symbols such as cultural and religious monuments. Vulnerable groups such as women and children are particularly affected.111
To recognize an example of `deliberately inflicting on the group the conditions of life calculated to bring about its physical destruction in whole or in part', it is enough to analyse the `living' conditions prevailing in concentration camps and prisons and in occupied or besieged towns. Certain administrative measures adopted in the framework of ethnic cleansing would also fall within the definition. Furthermore, preventing the passage of humanitarian aid and essential supplies and the destruction of vital means for survival could bring the population to physical destruction.
Rape could also have the objective of preventing births within the group by inflicting psychological damage on women that would drive them to refuse future sexual contact or to give birth. Rape of wives and mothers could be designed to harm family relations. Finally, the consequences of mutilation and castration of males require no explanation.
In order to differentiate genocide from other crimes against humanity, it is essential to establish an intent to destroy a certain group.112
An essential condition is provided by the words `as such' in Article II, which stipulate that, in order to be characterized as genocide, crimes against a number of individuals must be directed at their collectivity or at them in their collective character or capacity.113
Due to the very existence of the Genocide Convention, it is now unrealistic to expect to find evidence, in the written materials and public statements of officials, about someone's intention to commit genocide. For this reason it is necessary to take into consideration other significant elements to determine intent. In the first place, intent could be deduced from `sufficient evidence' which includes `actions or omissions of such a degree of criminal negligence or recklessness that the defendant must reasonably be assumed to have been aware of the consequences of his conduct'.114 The abundant evidence of systematic genocidal acts could be viewed as an indication of an underlying intent, especially given the widespread participation of government authorities in the atrocities committed or their omission to prevent or punish the perpetrators of crimes.
Intent is also revealed by the form of language used in public statements to designate certain groups as `the enemy',115 which could imply intent of war against those groups as such rather than against their military forces. Some public statements reported by the media also indicate the existence of intent.116
In specific circumstances, other relevant elements should be taken into consideration in analysing the intent. These elements could be: a profile of the population killed (sex, age, social position, specific categories, level of education, etc.), characteristics of individual crimes committed (brutality, cruelty, humiliation, etc.), the systematic nature of certain crimes (rape, destruction of property and objects necessary for survival of population, destruction of places of worship, prevention of delivery of humanitarian aid, etc.).
89 Bell-Fialkoff, supra note 4, at 110: `At one end it is virtually indistinguishable from forced emigration and population change while at the other it merges with deportation and genocide.'
90 After giving the list of elements of the ethnic cleansing, the Commission of Experts concludes that `ces pratiques constituent des crimes contre l'humanité et peuvent être assimilées à des crimes de guerre bien définis. Qui plus est, elles pourraient également relever de la Convention sur le génocide', UN Doc. S/25274, at 16, point 56.
91 UN Security Council's Resolution 771 (1992) at para. 2. See also 780 (1992), 787 (1992), 808 (1993), 819 (1993), 820 (1993), 824 (1993), 827 (1993). The same appears in the UN General Assembly Resolution 46/242 of 25 August 1992, UN Doc. A/RES/46/242.
92 See further Röling, `Aspects of the Criminal Responsibility for Violations of the Laws of War', in A. Cassese (ed.), The New Humanitarian Law of Armed Conflict (1979) 203.
93 In Article 6(c): `namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before of during the war, or persecutions on political, racial and religious ground in execution of or in connection with any crime within the jurisdiction of the Tribunal...'.
94 UN Doc. S/25704, at 13, points 48-49.
95 Report of 10 February 1992, UN Doc. 25274, at 25, point 49.
97 See Cassese, `La communauté internationale et le génocide', in Le droit internationale au service de la paix, de la justice et du développement, Mélanges Michael Virally (1991) 183, especially 187-192. `Il est très significatif à cet égard que la pratique officielle évite à l'ordinaire d'employer le mot `génocide', trop chargé d'histoire; elle lui préfère généralement des formules plus contournées.' Verhoeven, `Le crime de génocide. Originalité et ambiguïté', RBDI (1991/1) 5. In public statements in former Yugoslavia this term has been widely used and misinterpreted, often for very precise political purposes.
98 See Helsinki Watch 1st Report, supra note 11, at 1-2: `The findings in this report ... provide at the very least prima facie evidence that genocide is taking place.' See further Helsinki Watch 2nd Report, supra note 8, at 2: `What is taking place in Bosnia-Herzegovina is attempted genocide - the extermination of a people in whole or in part because of their race, religion or ethnicity.'
99 Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704 of 3 May 1993. This report was approved by the Security Council's Resolution 827 (1993) supra note 12.
100 The Statute states in Article 1 that `the International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law ...', the crime of genocide must be considered as a part of international humanitarian law.
101 See further the article by Rafaëlle Maison, this issue at 381.
102 Order of International Court of Justice, 13 September 1993. General List No. 91, at 25 point 52.
103 UN Doc. E/CN.4/1992/S-1/8; Paragraph 5 of Preamble: `Expressing its particular abhorrence at the concept and practice of "ethnic cleansing" in the former Yugoslavia, and especially in Bosnia and Herzegovina, which at a minimum entails deportation 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', with mention in paragraph 10 of Preamble that `the former Yugoslavia was a party to (...) the Convention on the Prevention and Punishment of the Crime of Genocide (...)'.
104 UN Doc. E/CN.4/1992/S-2/6.
106 Verhoeven, supra note 96, at 14.
107 Revised and updated report on the question of the prevention and punishment of crime of genocide prepared by Mr. B. Whitaker, UN Doc. E/CN.4/Sub.2/1985/6 of 2 July 1985, at 16.
109 Commission on Human Rights Resolution 1992/S-2/1, supra note 56, at para. 7 of the Preamble. See also First Mazowiecki Report I, at 11, point 52; Second Mazowiecki Report I, at 2, point 5; Fifth Mazowiecki Report II, at 34, point 228.
110 Which effects not just the victims but their families as well.
111 See Sixth Mazowiecki Report, at 33, points 209-230.
112 Cassese, supra note 96, at 184, Verhoeven, supra note 96, at 16; Shaw, `Genocide and International Law', in Y. Dinstein (ed.), International Law in a Time of Perplexity, Essays in Honour of Shabtai Rosenne (1989) 805.
113 Whitaker Report, supra note 106, at 19.
115 For example: `the Muslims', `the Croats', `the Serbs', and not their respective military forces or authorities. The present author deeply disagrees with this habit accepted by the majority of media and even official documents. Such a designation implies collective responsibility and does not correspond to the reality of the situation. In fact, this could represent acceptance of the concept which provoked the ethnic cleansing.
116 For example, statement of Mr. Karadzic in Bosnia and Herzegovina's Parliament before the war that in the event of war the Muslims will disappear; a statement released by the Commissioner for refugees of the self-proclaimed `Serbian Republic in Bosnia and Herzegovina' reads that `all Serbs, Croats, Yugoslavs, Jews and other citizens wishing to do so, should prepare to leave Sarajevo, threatened by cold and winter' in a situation where the majority of Sarajevo citizens are Muslims (International Herald Tribune 9 December 1992, at 2; `Let's be honest, it is all about killing of Muslims' a civilian official in Pale, Bosnian Serb headquarters told a Newsweek reporter in December. The official had recently served as commander of a Serbian artillery battery overlooking Sarajevo. `We had the coordinates of every playground in the city, every school, every market, every food-distribution centre. After that, it's just a question of mathematics, that's all it is.' Newsweek 14 February 1994, at 13; `Let's kill all the Muslims', the (HVO) soldier began yelling as the people huddled in a sandlot', Newsweek 7 June 1993, at 11.
© 1990-2004 European Journal of International Law
All comments and suggestions should be sent to webmaster
This site is part
of the Academy of European Law online, a joint partnership of the Jean Monnet Center at NYU School of Law and the Academy of European
Law at the European University
Institute.
This file was last modified:
Tuesday, August 03, 1999 01:55PM