Title

On the Legal Construction of Ethnic Cleansing

Abstract

On the Legal Construction of Ethnic Cleansing

Timothy William Waters, Univ. Mississippi School of Law

Abstract

What is the true shape of our commitment to prohibit ethnic cleansing? This Article explores that question by considering a case observers have universally decided does not constitute ethnic cleansing. It examines the recent controversy in the European Union, when Sudeten Germans demanded that the Czech Republic apologize for having expelled them after WWII before being admitted to the EU. Their demands were universally rejected and the legality of the expulsions was reconfirmed by all relevant actors. So what is the consequence for customary international law’s rules on ethnic cleansing?

The Article derives the customary legal norms logically arising from that rejection. It makes two specific claims about the Law of the Holocaust that has arisen since Nuremberg: 1) that despite our otherwise absolute commitment against ethnic cleansing, the Sudeten case identifies a Corollary, an identifiable and predictable limit on our willingness to oppose ethnic cleansing; and 2) that the same case establishes limits on our commitment to restitution for mass violence.

The Article also asks why these norms do not appear as acknowledged doctrine; the inquiry, therefore, is not simply into the rules, but into law’s construction of them. Throughout, the Article considers the responsibility of the present to order itself in light of the past: what is the proper moral and legal response to actions that implicate a bygone age and the suffering of another century?

Disciplines

Comparative and Foreign Law | Human Rights Law | International Law | Law and Society | Politics | Public Law and Legal Theory

Date of this Version

February 2006