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When Ethnic Cleansing is not Genocide: A Critical Appraisal of the ICJ's Ruling in Croatia v. Serbia in relation to Deportation and Population Transfer

Abstract This article critically examines the concept of ethnic cleansing in light of the ruling of the International Court of Justice (ICJ) in Croatia v. Serbia. It suggests that the lack of overt reference to it in the Genocide Convention constitutes a significant lacuna in judicial recognition and protection of atrocities committed in both the Former Yugoslavia and more generally, which the ICJ categorically refused to address. Having examined how the ICJ attempted to conceptualize ethnic cleansing as evidence of both the actus reus of genocide (particularly in relation to Article II(c) of the Convention) and its mens rea, the article then critically assesses the Court's reasoning in its refusal to rule that a violation of the Convention had taken place in relation to deportation and forcible transfer. The article then concludes by contending that the Court simply failed to provide a much-needed and workable precedent to properly include ethnic cleansing within the legal and factual matrix of genocide.