The Ethnic Cleansing-Genocide Nexus

[Ben Gerstein (JD, BA) is a Visiting Fellow at the University of Sarajevo Institute for the Research of Crimes against Humanity and International Law]

What is the difference between pursuing the violent ethnic homogenization of a territory and the physical destruction of the group living on that land? And further, when does ethnic cleansing reach the threshold of genocide? Examining the jurisprudence of both the ICTY and ICJ, and applying it to the ongoing campaigns of wanton violence in Gaza and Myanmar, this post aims to offer critical points of clarity.

Ethnic cleansing is not a legal concept, though it is often drawn upon during times of atrocity to describe acts of targeted violence against groups. Roughly defined by the United Nations as “rendering an area ethnically homogenous by using force or intimidation to remove persons of given groups from the area,” or alternatively as the “purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas,” ethnic cleansing describes a collection of conduct—killings, forced removals, cultural desecration—motivated by a desire to homogenize space and territory. Thus, the conscious object of an ethnic cleansing project is to erase the targeted group’s multifaceted presence in a specific place. 

Whereas ethnic cleansing is a non-legal designation, forcible transfer and genocide are both defined in international criminal law. Genocide has a strict formula laid out in the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, replicated in the statutes of the UN Security Council-authorized international criminal tribunals in the 1990s and the ICC’s Rome Statute. Forcible transfer, alternatively, is a war crime and can amount to a crime against humanity when committed within the context of a widespread and systematic attack directed against a civilian population. In the Rome Statute it is defined as the “forced displacement [of peoples] by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.” When the displacement occurs within the same national territory, the crime constitutes forcible transfer. Whereas if the displacement crosses national borders, the crime is described as deportation. Violent programs of ethnic cleansing can rely on either or both acts of genocide and forced transfer.

The precise roots of the term “ethnic cleansing” are somewhat uncertain, but its presence in genocidal moments is not. Conceptually, the Nazi-era notion of rendering space “judenrein” or “judenfrei” (clean of Jews) overlaps with our contemporary understanding of ethnic cleansing’s goals—emptying a territory of the defined enemy group. Etymologically, the vocabulary of  cleansing was used to describe projects of purification in the late 1800s and early 1900s. But the precise expression is most familiar from its Serbo-Croatian permutation. During the fascist Ustaše regime in the Independent State of Croatia, “čiščenje terena” (cleansing of territory) was used to describe the mass killing and expulsion of Serbs. Decades later, in former Yugoslavia, “etnićko čiščenje” (ethnic cleansing) was deployed by perpetrators, particularly Slobodan Milošević in Serbia, to describe the conduct of the Yugoslav military. Here, the term ethnic cleansing primarily functioned as a euphemism for the violence levied against Serb-defined ethnic others, Muslims and Croats, in Bosnia. 

The concept has since taken on a deeply negative connotation, in line with the criminality it stood for in the Yugoslav context. In Palestine, Israeli historian Ilan Pappe helped popularize the term to describe the mass expulsion of Palestinians in 1947-1949, known as the “al-Nakba” (the catastrophe). During the Nakba, more than 700,000 Palestinians fled or were expelled from their homes by the nascent Israeli state’s paramilitary forces through killings, sexual violence, and other forms of terror. While this undoubtedly amounted to deportation and forcible transfer, some frame the Nakba as a genocidal moment as well. Since October 2023, numerous commentators have likewise surmised that Israel’s motivation in Gaza is the ethnic cleansing of the enclave, with the crime of genocide being the tactic relied upon to achieve their goal. Relatedly, the situation in Myanmar has been described as a “textbook case of ethnic cleansing,” amidst a similar legacy of expulsion campaigns against the targeted Rohingya. Here, too, genocide is the tool through which Myanmar seeks to remove the Rohingya from within its borders. And currently, the ICJ is hearing a case alleging that Myanmar has committed the internationally wrongful act of genocide. Thus, in both contexts, the pursuit of ethnic cleansing functions alongside genocide, rendering “genocide [] a means to an end.”

Ethnic cleansing describes a motivation—an “underlying reason” or “ultimate purpose” behind certain acts—where genocide and forcible transfer are actual offenses. In pursuit of ethnic cleansing, states can rely upon either or both acts. However, forcible transfer can escalate into genocide when paired with prohibited acts and informed by genocidal intent. Specifically, per the International Court of Justice (ICJ) in Bosnia and Herzegovina v. Serbia and Montenegro, acts of forcible transfer “can only be a form of genocide within the meaning of the [Genocide] Convention, if it corresponds to or falls within one of the categories of acts prohibited by Article II of the Convention.” These acts include: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group. 

However, the key distinguishing factor in determining whether the underlying acts of an ethnic cleansing operation are genocide—or alternatively are acts of forcible transfer accompanied by killings and other crimes—is the perpetrator’s intent. As described above, ethnic cleansing is generally a question of motive. And while the relationship between genocidal intent and motive remains opaque, scholars and courts generally view it as possible for perpetrators to act simultaneously with genocidal intent and aims of ethnic cleansing. 

More specifically, genocidal intent entails the dolus specialis to physically destroy the targeted group in whole or in part. Courts often look to see whether the underlying crimes in pursuit of an ethnic cleansing campaign embody the crime of forcible transfer or are more accurately defined as genocide because of this special intent. Per the ICTY in Prosecutor v. Milomir Stakić, “[a] clear distinction must be drawn between physical destruction and mere dissolution of a group. The expulsion of a group or part of a group does not in itself suffice for genocide.” Additionally, the ICJ noted that the “deportation or displacement of the members of a group, even if effected by force, is not necessarily equivalent to destruction of that group, nor is such destruction an automatic consequence of the displacement.” For example, as Adil Haque describes, the court found in Croatia v. Serbia that the Serbs acted “exclusively with the illegal but non-genocidal intent to forcibly displace the Croat[s].”

Nonetheless, the language of the case law reveals a broader relationship between an intent to displace and an intent to destroy a protected group. The Krstić Chamber in the ICTY wrote that Bosnian Serbs sought the “physical disappearance” of Bosnian Muslims in Srebrenica, which was reflective of genocidal intent. Additionally, the Chamber in Karadžić observed that the conduct in Srebrenica was “devised with the intent to permanently remove the Bosnian Muslim population living there,” suggesting that aspirations of ethnic cleansing can simultaneously exist alongside genocidal intent, crossing the threshold of genocide. This led the Krstić Chamber to declare that genocidal intent can be inferred from both the mass killings of the men and “the forcible transfer of the women, children, and elderly.” Additionally, in Blagojević, the Chamber found that forcible transfer—the act most directly tied to ethnic cleansing’s program of removal and replacement—can embody a form of destruction.

Calls for ethnic cleansing may also be probative of genocidal intent, as physical destruction is a tool to achieve the very erasure which is core to a program of ethnic cleansing. This is especially true when calls for removal are paired with explicit statements of intended destruction. For example, Bosnian Serb Radovan Karadžić was found guilty of genocide where he commanded the military to “create an unbearable situation of total insecurity with no hope of further survival or life for the inhabitants of Srebrenica.” Others, however, were not considered to possess genocidal intent since their “rhetorical speeches and statements” were found to have only “assisted in the task of ethnic separation and division rather than the physical destruction of the protected groups.” 

In Gaza, Israeli desires for the ethnic cleansing of Gaza exist in a context legally qualifiable as genocide. First, there is the commission of many constituent acts of genocide, like mass killing, bodily harm, and the creation of conditions intended to facilitate the physical destruction of the group. In addition, despite there being widespread internal forced displacement, Israel has not pursued the mass deportation of Palestinians into neighboring countries, either for the purpose of the ethnic cleansing or for their survival. This demonstrates an intent to simply physically destroy the group in light of unsuccessful efforts to remove it. Further, destructive bombing, intentional starvation of civilians, use of forced evacuations to facilitate displacement and death instead of safety, as well as the targeting of hospitals, schools, tent camps, and children, form a pattern of conduct which reveal a genocidal intent to destroy the Palestinians of Gaza. 

Additionally, this pattern of conduct, when paired with certain statements of Israeli officials, suggests a criminal intent to destroy the Palestinian population of Gaza. There have been many statements and acts which align with the crime of forcible transfer, namely a wartime plan drafted by the Intelligence Ministry in Israel proposing the forced transfer of Gaza’s entire popular to Egypt. Meanwhile, multiple Israeli politicians and defense officials have openly called for a second Nakba. Additionally, the “Resettle Gaza” movement has gained serious traction amongst the political leadership of Israel, including Israel’s security minister Itamar Ben-Gvir. 

However, statements advocating for the ethnic cleansing of Gaza often stretch beyond declared goals of displacement and into the terrain of physical destruction. “Gaza will be entirely destroyed,” said Finance Minister Bezalel Smotrich. Minister of Defense Yoav Gallant said in 2023, “We will end things inside Gaza… Gaza will not return to what it was.” He doubled down two days later and said “[w]e will eliminate everything.” David Bar Khalifa, Commander of the 36th Armored Division of the IDF, also claimed that Israel “shall pulverize every accursed plot of land from which [the enemy] came, we shall destroy it and the memory of it … and we shall not return until it is annihilated.” Additionally, Member of Knesset Eliyahu Revivo exclaimed that “I am full of hope and expectation that decision-makers will make it clear to the world about the updated goals of the war: crushing Gaza and all its inhabitants.” His colleague, Galit Distel-Atbaryan, argued that Israel should “eras[e] all of Gaza from the face of the earth. That the Gazan monsters will fly to the southern fence and flee into Egyptian territory. Or they will die … Gaza needs to be erased.” 

Likewise, in Myanmar, the underlying acts of genocide have been committed against the Rohingya. This violence stretches back to the 1970s. And presently, coordinated attacks against Rohingya, particularly in the Arakan State, have included massacres, the deliberate destruction of homes, mosques, and villages, and the construction of a terror campaign intended in part to promote forced displacement. Both deportation and internal forced displacement are prominent features of the state’s violence, as well as a structure of secondary citizenship which amounts to the crime of apartheid. Lastly, per Human Rights Watch, sexual violence has been deployed by Myanmar “to break [Rohingya Muslim] families, threaten futures, and eliminate the possibility of [their] survival as a group.”

The rhetoric of Myanmar’s government, when paired with other conduct, similarly demonstrates genocidal ethnic cleansing—genocidal intent layered with a motivation to remove the Rohingya from the state’s territory. As documented in The Gambia’s initial application with the ICJ, the authorities in Myanmar have engaged in a sustained hate campaign against the Rohingya. Their filing includes evidence that members of the government called for a “final solution” and “‘praised Hitler and argued that inhuman acts’ are ‘sometimes necessary to maintain a race.’” These statements, a small sample of the numerous others provided in the filing and during The Gambia’s opening statement on January 12, indicate the pursuit of genocidal destruction as a means to ethnically cleanse the Rohingya. And further, when this rhetoric is paired with mass killings and other crimes that stretch beyond targeted displacement operations, the conduct of Myanmar’s military illustrates how ethnic cleansing projects can rely on genocidal violence.

Thus, it appears both the Israeli and Myanmar governments are pursuing goals of cleansing territory through attempted group destruction. The acts and statements laid out above strongly indicate an intent to destroy in the sense of genocide, and not solely an intent to remove through acts of forcible transfer. These respective contexts, therefore, are prime examples of genocidal ethnic cleansing.