Ethnic Cleansing as a Distinct Crime under International Law: Assessing the Case of Forcible Transfer of Ethnic Koreans in the Former USSR(1937)

Abstract

The forcible transfer of ethnic Koreans in 1937 marked the first precedent of the policy of wholesale eviction and displacement of populations as an instrument of ethnic cleansing in the USSR and became a pattern during and after World War II, when different ethnic minorities amounting to around 6 million people have been uprooted from their homes, with 1 to 1.5 million estimated to have perished as a result of forced internal displacement.
 The present research considers the forced internal displacement of the ethnic Korean population in the USSR to be an act of ethnic cleansing, which is a mass atrocity crime and a blatant human rights violation. Inability to bring the perpetrators to justice for forced displacement of the entire civilian population of ethnic Koreans in the USSR, which has caused the physical extermination of several thousand people and the destruction of their socio-economic infrastructures and culture, will remain in history as the most serious form of impunity and the most flagrant violation of the fundamental right of victims to justice. The state cannot be held accountable for this wrongful act since the Soviet Union, as a subject of international and geopolitical reality, no longer exists and ethnic cleansing has not yet been recognized as an independent crime under international law.
 International law sets out the human rights and each State and other authorities have a prime responsibility and duty to protect, promote and implement all these rights and fundamental freedoms, and it is essential to carry out protection activities at the national and international level. While the prohibition of forced displacement itself has been a well-established feature of international criminal law since the Nuremberg trials following the Second World War, ethnic cleansing has not yet been written and signed in any UN treaty, which means Member States do not have to protect those who have fallen victim, since ethnic cleansing is still not a criminal charge in international law. But in 2005, a UN World Summit included ethnic cleansing along with genocide, war crimes, and crimes against humanity as four things from which each individual State has a duty to protect their populations.
 Despite the fact that forcible transfer and other practices involving the coerced, arbitrary or involuntary displacement of the civilian population from their homes, lands, and communities constitute a specific phenomenon, there is no single legal principle in international law that can be applied to all kinds of population transfers. In some circumstances, deportation or internal displacement as well as other forms of involuntary population transfers may amount to a crime against humanity, a crime of genocide or a war crime, depending on the factual elements of the case and the specific requirements of a certain crime.
 This study accordingly reviews population transfers as the constitutive element of such crimes as genocide and crimes against humanity, and transposes this comparative analysis into the context of ethnic cleansing.
 Every state has the responsibility to protect its population from four mass atrocity crimes: genocide, war crimes, crimes against humanity (that have not yet been codified in a separate treaty of international law), and ethnic cleansing (that has not been recognized as an independent crime under international law). The term ‘ethnic cleansing’ itself has been acknowledged in judgments and indictments of the International Criminal Tribunal for the Former Yugoslavia, although it did not constitute one of the counts for prosecution. One aspect of the criticism of the terms ‘ethnic cleansing’ focuses primarily on the fact that many state governments use this term even when an incident can be classified as genocide in order not to use state resources or taking action against the perpetrating State.