Ethnic cleansing is the name given to policies and actions that, aimed at an ethnic group, entail forcible transfer or removal of its members from areas where they reside in large numbers. This can include killing, deportation, displacement across established or perceived borders, taking away children/forced adoption, suppressing language and so forth. It is also a component of the crime against humanity of persecution (and, therefore, a predicate for acts of genocide).

Ethnically motivated deportations and displacements are among the most serious crimes under international law and they have been a staple of geopolitical crises for decades. But while the world’s political leaders have condemned this phenomenon, the legal contours of ethnic cleansing remain unclear. This article aims to illuminate those contours through an analysis of the definition and scope of the term.

It argues that the word’s meaning has become narrowed to mean ‘deportation or forcible transfer of members of a particular ethnic group from territories exclusively claimed for and occupied by them’, with a nod to Naimark’s contention that the term is also understood in terms of ‘purifying one’s own people of alien elements’. This reading is bolstered by the fact that ICJ jurisprudence, including its Commentary on Additional Protocol II, clarifies that displacement may be justified for reasons other than an intention to exterminate a specific ethnic group.

In addition, it is argued that the invocation of the term ‘ethnic cleansing’ in the 2005 UN Resolution on the Responsibility to Protect indicates that states and non-state actors should have enforcement powers to prevent or confront assaults on a civilian population by virtue of their inherent jurisdiction under the Charter.