"WITH INTENT TO DESTROY, IN WHOLE OR IN PART": GENOCIDE, ETHNIC CLEANSING, AND A LOST HISTORY

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 pr & eacute;paratoires 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.