Blurring the distinction between ethnic cleansing and genocide

“Ethnic cleansing” became a recurrent phrase of the discussion on atrocity crimes; however, it never really gained a legal definition. The phenomenon described by this journalistic phrase is classified by most lawyers as a crime against humanity and not as genocide. While in genocide, the perpetrator wants to destroy the protected group, the semi-declared goal of ethnic cleansing is usually the creation of an ethnically homogenous area. Therefore, an often brutal, forced reallocation of the population instead of an attempted total or substantial destruction is the means of ethnic cleansing. This chapter does not challenge that distinction at a general level; however, several arguments are made that ethnic cleansing can tantamount to genocide in certain cases. The key for such an interpretation lies in what elements are used for the determination of the group protected from genocide. If the connection to their own habitat is so strong that it becomes part of the group identity, removal from that territory can directly lead to the total or substantial dissolution of the group within a single generation. If the group is destroyed by such a forced removal from the territory, and the perpetrator had had to be aware of that possibility when engaging in the atrocity, genocide becomes a legal category potentially applicable to the situation. The legal consequences of such a conclusion are multiple: in cases of individual sentencing, the question of genocide or crimes against humanity would not cause major differences. However, the question of prevention, and the lasting treatment of certain historical injustices, could raise issues that should be properly addressed.