It may be surprising to discover that ethnic cleansing is legally distinct from genocide considering that the media use these terms interchangeably. Currently, no formal legal definition of ethnic cleansing exists. This Comment specifies how ethnic cleansing fits into the definition of genocide’s distinctly destructive purpose and effect. I argue that because ethnic cleansing and genocide result in similar harms and derive from similar agendas, international courts ought to find perpetrators guilty of the crime of genocide when genocidal acts are committed with the intent to create an ethnically homogenous territory. A policy of ethnic cleansing is a genocidal policy.
Part II of this Comment reviews the legislative history of the Genocide Convention to provide a justification for preserving the heightened legal and political status currently attributed to the crime of genocide. Part III summarizes recent international courts’ interpretations of destruction as it applies to genocidal acts and genocidal intent, particularly their refusal to incorporate cultural destruction within their understanding of genocidal intent. By excluding cultural destruction from the crime of genocide, the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC) have demonstrated that they are averse to equating a policy of ethnic cleansing with the intent to destroy. Part IV argues that the aim of genocide—the intent to destroy a human group—actually parallels a policy of ethnic cleansing. Intending to expel a certain ethnic group to achieve an ethnically homogenous territory is an intention to destroy that ethnic group. Part V explains how already developed limits on genocidal intent may be used to interpret a policy of ethnic cleansing as the intent to destroy.
Micol Sirkin, Expanding the Crime of Genocide to Include Ethnic Cleansing: A Return to Established Principles in Light of Contemporary Interpretations, 33 SEATTLE U. L. REV. 489 (2010).