Alexander K.A. Greenawalt, "With Intent to Destroy, In Whole or In Part": Genocide, Ethnic Cleansing, and a Lost History, 2024 Wis. L. Rev. 933 (2024).
Even though international law no longer attaches much formal
importance to the question of whether or not a particular mass atrocity
amounts to the crime of genocide, disputes about genocide continue to
command outsized importance as a question of historical memory and as a
source of political conflict. While the law itself is not entirely to blame,
international courts have exacerbated the problem by providing unclear and
even arbitrary guidance on the interpretation and application of the crime of
genocide, unwittingly playing into the hands of atrocity deniers who are
happy to focus the conversation on contested legal nuances rather than
irrefutable facts.
In particular, a perennial source of conflict—from Turkey, to Bosnia,
to Sudan, and Myanmar, among other places—has focused on the question of
so-called ethnic cleansing. Do such acts reflect the requisite genocidal “intent
to destroy, in whole or in part, a national, ethnical racial, or religious group,
as such” when the overarching intent appears to be the displacement rather
than the physical annihilation of a targeted group? The jurisprudence of the
International Court of Justice and the International Criminal Tribunal for the
former Yugoslavia have provided especially mixed signals on this question.
The cases have made determinations of genocide only with respect to the
1995 Srebrenica massacre, but not with respect to other mass killings which
collectively claimed even more lives in pursuit of the plan to carve an
ethnically Serb state out of Bosnian territory.
Drawing upon original research into the travaux préparatoires of the
1948 Genocide Convention, this Article advances several claims that
complicate the standard account according to which genocide must entail a
purpose to physically destroy at least a substantial part of a protected group.
The core of the Article closely explores the words “intent,” “destroy,” and “in part,” showing how international authorities have settled on a received
and largely uninterrogated wisdom regarding the meaning of these terms, one
which is supported neither by the drafting history of the Genocide
Convention, nor even by the actual results of the judicial decisions that
purport to apply these requirements. In addition, this Article defends an
alternate interpretation according to which the genocide label extends to acts
of mass killing whose ultimate goal is displacement rather than
comprehensive extermination.
Ultimately, any attempt to delineate the genocide/not genocide
distinction will involve an indeterminate and somewhat arbitrary line. While
acknowledging that limitation, this Article defends its approach as the most
consistent with the lost history of the Genocide Convention and also as one
that is normatively preferable.
