This article considers whether and if so, under what conditions, the practice of forced population transfer can be regarded a form of genocide, notwithstanding its formal exclusion from the Genocide Convention. This is particularly relevant in the context of the pending genocide case before the International Court of Justice between Croatia and Serbia since both states essentially base their claims on acts of ethnic cleansing. International case law on this matter is far from clear, yet it points to the conclusion that ethnic cleansing may rise to genocide when carried out with genocidal intent. In contrast, Croatian courts seem to have simply equated the intent to ethnically clean a given area with the intent to destroy. Following a brief overview of Croatian case law, this article considers the viability of the pending genocide allegations and whether the Croatian claim and Serbian counter-claim have any prospects of success.
Schabassupra note 13 p. 233 warns that every violation of international law may involve some of the acts prohibited by Art 2 of the Convention and if associated with intent to destroy can amount to genocide.
Tolimir Trial Judgmentsupra note 20 para. 777.
Comp. Lüderssupra note 21 p. 224. and Hübner supra note 24 pp. 211–212 (rejecting the argument that a group will be able to exist elsewhere since it is sufficient that the perpetrator's intent to partially destroy a group refers to a geographically limited territory).