Twitter will never cease to surprise me. How can 140-character messages be so thought-provoking and generate such pertinent and interesting debates? It’s a mystery, but it’s also a fact.
Today’s post relates to one of Daveed Gartenstein-Ross‘s tweets and the debate that followed. Here is the tweet:
Daveed was referring to Juan Cole’s story on the current violent attacks carried out against Christians in the Middle East, most notably in Iraq but also in Egypt. More specifically, Daveed was commenting Mr. Cole’s concluding paragraph:
The attacks on Christians in Iraq are serious, and hold the danger of ethnically cleansing that community. The threats against Copts, while they cannot be discounted, are less credible and may well backfire.
Juan Cole’s conclusion and Daveed’s reaction ask interesting questions for international criminal lawyers – does ethnic cleansing apply to religious group? And if it doesn’t, then does “religious” cleansing amount to genocide?
International lawyers who are familiar with the debates these notions generate within the international legal community will know what Juan Cole and Daveed Gartenstein-Ross have stepped in, namely how complex and endless these debates are, starting with the question of whether ethnic cleansing is not a form of genocide (recently shut down at least in part in the ICJ’s 2007 Decision in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide – §190), and not to mention the general confusion between “social” and “legal” definitions of such crimes.
Without being so ambitious as to engage in these debates, I would like to clarify a certain number of these notions from a legal perspective.
What’s an ethnic group? A delicate, and incredibly subjective notion. Here are a few definitions to consider:
- ‘ethnicity’ according to the New Oxford American Dictionary: “the fact or state of belonging to a social group that has a common national or cultural tradition”
- Within the United States Legislation, the Genocide Convention Implementation Act of 1987 defines an “ethnic group” as a ‘set of individuals whose identity as such is distinctive in terms of common cultural traditions or heritage;’
- The landmark ICTR case, Akayesu, §513 states that “[a]n ethnic group is generally defined as a group whose members share a common language or culture.“
- In another ICTR case, Kayishema et al., another, more thorough definition of ethnic group is provided: “An ethnic group is one whose members share a common language and culture; or, a group which distinguishes itself, as such (self identification); or, a group identified as such by others, including perpetrators of the crimes (identification by others).“
That last definition is particularly interesting, as it takes into account a group “identified as such by others, including perpetrators of the crimes.” So can a religious group be considered an ethnic group? I’m tempted to say no, as many international legal documents tend to differentiate “ethnic” from “religious” groups, and yet, under certain circumstances and context, there might be room to prove that yes, a religious group – especially if considered through its cultural component – can be assimilated to an ethnic group.
If anyone has jurisprudence that supports this, please feel free to add it in the comments!
What amounts to ethnic cleansing? Ethnic cleansing is often considered as “forced migration” of a population outside of a specific territory, often within the same State. The ICJ, in its 2007 decision (at §90), stated that:
[The expression ‘ethnic cleansing’] is in practice used, by reference to a specific region or area, to mean “rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area” (S/35374 (1993), para. 55, Interim Report by the Commission of Experts).
The expression ‘ethnic cleansing’ really is a social concept that was essentially used in the context of the conflict in the Balkans in the 1990s), but refers legally to the notion of “Deportation or forcible transfer of population”, which can constitute a Crime Against Humanity (Article 7(1)(d) Rome Statute).
How does that relate to the legal notion of genocide? Genocide is very clearly defined by several documents, starting with The latest, the Rome Statute, uses a previously-established definition of ‘Genocide’. Article 6 provides that:
For the purpose of this Statute, ‘genocide’ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(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.
Ethnic cleansing does not automatically amount to genocide. It can, however, under circumstances. To quote once more from the ICJ’s 2007 decision (emphasis added – for the purposes of clarity, Article II of the 1948 Genocide Convention that is referred to below is quasi-identical to Article 6 of the Rome Statute quoted above):
This is not to say that acts described as “ethnic cleansing” may never constitute genocide, if they are such as to be characterized as, for example, “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”, contrary to Article II, paragraph (c), of the Convention, provided such action is carried out with the necessary specific intent (dolus specialis), that is to say with a view to the destruction of the group, as distinct from its removal from the region. As the ICTY has observed, while “there are obvious similarities between a genocidal policy and the policy commonly known as ‘ethnic cleansing’” (Krstić, IT-98-33-T, Trial Chamber Judgment, 2 August 2001, para. 562), yet “[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.” (Stakić, IT-97-24-T, Trial Chamber Judgment, 31 July 2003, para. 519.) In other words, whether a particular operation described as “ethnic cleansing” amounts to genocide depends on the presence or absence of acts listed in Article II of the Genocide Convention, and of the intent to destroy the group as such.
A new concept: sectarian violence. With the conflict in Iraq from 2003 onward, a new expression has appeared in discourses, similarly to how “ethnic cleansing” made its apparition with the Balkan conflicts: ‘sectarian violence’. I’ve rarely encountered the expression in a legal concept – it’s fairly new, so it’s difficult to say what it’s future amounts to. Wikipedia defines “sectarian violence” as “violence inspired by sectarianism, that is, between different sects of one particular mode of thought/ideology or within a nation/community, with the division not necessarily based upon religion.” My sense is that ‘sectarian violence’ will remain a social concept, much like ‘ethnic cleansing’ – legally speaking, it can amount to murder, forced displacement, and, depending on the intent of the perpetrators, genocide.
What applies to violence against Christians in the Middle East? To go back to the beginning of the debate, and Juan Cole’s article, it is not clear whether it can be called “ethnic cleansing”. And that is what’s most thought-provoking about Daveed’s reaction: violence against Christians in Iraq could not amount to “ethnic cleansing”, even though it could be argued that it is strikingly similar, because religion is not strictly speaking an ethnic notion.
Could it amount to “Deportation or Forcible transfer of population”, the legal pendant of what social scientists call “ethnic cleansing”? Arguably, yes.
It could also amount to genocide – if the intent of the perpetrators is to destroy, in whole or in part, the Christian religious group in Iraq and more widely in the Middle East (which is arguably the case).
This post is just the sharing of a few thoughts and an attempt to clarify certain notions as they exist in international law. Feel free to add your input and/or thoughts in the comments section, I’d love to get a debate going around this notion of “ethnic cleansing” and religious group!
My faithful law books that helped me write this post:
- M. Shaw, International Law (CUP, Cambridge 2009)
- W.A. Schabas, Genocide in International Law – The Crime of Crimes (CUP, Cambridge 2009)
- A. Cassese, International Criminal Law, 2nd ed. (OUP, Oxford 2008)
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