On Ethnic Cleansing

A suprising historical fact exposes a widespread fallacy

Trump’s plan to relocate the population of Gaza is almost certainly not going to happen, and it involves all kinds of problems. However, what I want to address here is the widespread response of absolute horror and moral outrage.

First, let us divide the population of Gaza into two categories: those who want to leave (of which there are many), and those who do not want to leave (of which there are also many). Some people are adamantly opposed to giving the first group the option of leaving Gaza. They insist that all Palestinians must stay in Gaza, even if they are homeless and desperately want to leave a war zone. It’s unthinkable to let them any of them go to the East Bank of the Jordan, which was part of Palestine for most of history before it was awarded to the Hashemites of Arabia, and in which Palestinians form most of the population in a country that is ethnically identical to them. And it’s unthinkable to let any of them go to Egypt, a country from which a large minority of Palestinians emigrated within the last two centuries. Gaza, where they are classified as homeless refugees, is their home!

These people are showing that they do not care about Palestinian lives and wishes, and are willing to sacrifice them for the Palestinian political cause. That would seem to be highly immoral. Palestinians who wish to leave Gaza should be allowed to do so, and efforts should be made to find them a home.

But what about those Palestinians who do not want to leave? Trump appears to be proposing to forcibly relocate them, a position which until now not even the government of Israel has advocated. It’s not clear (at least to me) what exactly he has in mind. But whatever form it takes, many people insist that this is ethnic cleansing, that such ethnic cleansing is against international law, and that it is a war crime that is a great evil, entirely unjustifiable under any circumstances.

Regardless of whether Trump’s plan is right or wrong, this claim about ethnic cleansing is demonstrably false. It’s demonstrably false that ethnic cleansing is always rated as a war crime, and it’s demonstrably false that the general community always considers it evil.

Following World War II, millions of ethnic Germans, living within the borders of Czechoslovakia, were transferred out of Czechoslovakia, i.e. “ethnically cleansed” in modern parlance. This also involved the deaths of many of them. At this point, the war was finished, and the ethnic Germans posed no serious threat. Nevertheless, in a paper titled “Remembering Sudetenland: On the Legal Construction of Ethnic Cleansing" (2006), Timothy Waters, of the Indiana University Maurer School of Law, notes that claims by ethnically-cleansed Germans against the Czech Republic were roundly rejected by Europe. Here are some key extracts from his fascinating and important article (scanned with OCR so there could be mistakes):

“What is the consequence, not for a few Germans but for the European order and international law, of saying that these kinds of claims are not valid? Does the rejection of Sudeten claims - precisely because it is justified, and because of the way it has been justified - define any limits to what we are prepared to count as ethnic cleansing or unjustifiable human suffering? For make no mistake: the expelled Germans suffered; it is simply that we say their suffering, so long ago, was regrettable but not wrong, and most assuredly not compensable.

“The natural assumption of many readers will be that this has nothing to do with ethnic cleansing, that Sudeten claims have been universally rejected because they are ancient or otherwise fail some technical hurdle; certainly that is how most analyses dispose of the matter. This might be right except that we shall see how other claims, equally defective in this way, have not been rejected. And so, we are compelled to recognize a different, explicitly moral calculus to distinguish Sudeten claims from those cases. This recognition is acceptable to most observers, just as rejecting Sudeten claims is acceptable; they were, after all, collaborators with Nazism, were they not? The interesting point, however, is that this calculus - which we must employ because it is the only way to distinguish the Sudeten case - creates a predictable potential for similar responses in the future. If this is accurate (and right), then our commitments against ethnic cleansing are much more complex and qualified than we currently admit.

“…Despite our otherwise absolute normative commitment against ethnic cleansing, the Sudeten case identifies a Corollary, an 'unthinkable potential' our law retains under specific, identifiable conditions…

“In his 2002 speech, Commissioner Verheugen linked the forward orientation of the Union, the ancientness of the Sudeten expulsions, and a curiously elliptical expression of causality in describing "how we deal with the burden of the past... the fact is: in today's uniting Europe, expulsion, dispossession, oppression or discrimination as a political means are unthinkable. Anywhere. And under any circumstances. However, equally unthinkable is a repetition of the fascist terror which had preceded all this." On its face, this rejects expulsion absolutely. Yet the formulation is more precise: total rejection - followed, strangely, by "however" - is balanced against another "equally unthinkable" event. The implication must be that if fascist terror or its equivalent were to repeat itself, then a righteous Europe's response could be repeated as well.

“Indeed, most efforts to isolate the expulsions as products of their time deploy causal justifications that necessarily contemplate similar action in similar circumstances. For Whitehead, "measures taken in response to a time of unparalleled evil are not applicable in the modem era of democratic resolution." This seems to suggest that expulsions are illegitimate because democracies do not need them, yet the argument's engine is the absence of "unparalleled evil." Nor does it condemn the expulsions as such: there is none of the categorical rejection characterizing discussion of, say, the Holocaust or Japanese internments, and in cabining the expulsions as unique ("unparalleled"), it necessarily reserves a potential response should history repeat. The seeming fixity of our resistance to expulsion - its 'unthinkability' - is actually a function of the conflict preceding it: under sufficiently exigent circumstances, expulsion as a legal means would be thinkable.

“At its narrowest, the Sudeten Corollary to the Law of the Holocaust holds that when a dictatorship engages in aggression and the most extreme depredations, other states (whether democratic or not) may engage in collective, ethnically determined expulsions and confiscations after the conflict - or may later defend their legal immunity if they do. Even this narrow postulate would limit the seemingly universal prohibition on expulsion suggested by the Law of the Holocaust.

“And so, this Article argues that we have not disposed of the broader question about whether or not ethnically discriminatory measures are available under specific and predictable circumstances. On the contrary, the statements and actions of states and European institutions reveal a complex but clear conditionality: such measures are unacceptable in the absence of exigent challenges to the European order. Europe and its legal order have not rejected resort to ethnic cleansing under all circumstances; they have reserved this right - and an immunity from restitution after invoking it - in response to grave threats to that order. That is the true shape of the law.

“…The very fact that our rejection of Sudeten claims is fundamentally moral rather than technical or legal should indicate to us that the occasion to apply such a distinction obtains, and will obtain, whenever the moral conditions arise, regardless of the formal legal structures erected atop that moral foundation. We profess an absolute legal rejection of ethnic cleansing, but either we do not mean it or we mean something morally narrower by the words "ethnic cleansing."

“….Our law does not forbid ethnic cleansing full stop - it forbids ethnic cleansing except in defined cases, following extreme communal violence which provides a moral justification.

“But why are those cases unacknowledged? If there is a corollary, why cabin it off as a sui generis "shipwreck on the law?" There is of course the sheer awkwardness of admitting limits to our horror at ethnic cleansing or of advertising our determination to reserve the rights of vengeance. When that potential is acknowledged, it comes in surprising ways, such as Prime Minister Zeman's suggestion during a trip to Israel "that his hosts break the deadlock with the Palestinians by adopting the method that was so 'successful' for the Czechs in 1945: expulsion."

“One need not personally advocate a Sudeten Corollary to observe that every relevant actor advocates it in practice, even though the text of this Corollary is nowhere to be read….

“The mythology of human rights - by which I mean both its myth of origins and its mythic sense of purpose - imagines a movement arising out of the horrors of the Second World War, committed to a normative project that by protecting human dignity would render such wars unnecessary. What this origin myth ignores is that the Allies' war efforts and the expulsions were not derogations from our most sacred principles; they were the enforcement of those principles in response to terrible and clear affronts. The war and its aftermath were entirely consistent with the norms, aspirations, and methods of human rights because they were an integral part of them. Our own principles confirm that were such evil to descend on us again, we would again use just such methods, and again say we were right in doing so. To dismiss or isolate expulsion as supreme necessity, as if necessity were not a legally recognizable category, is to deny the predictability of this "sequence of cause and effect," or to plead a kind of madness when it is obvious as a matter of history that this is not madness but intention, just as self-defense and vengeance are intended.

“It is not, therefore, that the expulsions' true role is misunderstood - again, as if "were we to understand rightly, we would recoil in honor and reject what we have done." It is precisely because we do understand expulsion - understand it to be a measured, legitimate response to evil consistent with our moral commitments both then and now - that we accept it and ignore it as we do."

You can find Waters' paper online. I am not taking a position here on whether Trump’s plan is a good or wise one, and I don't even understand how it would take place. It almost certainly won’t even happen anyway. And it's almost certainly a bad idea for Israel and for Jews to openly endorse it - certainly most of the world is not going to read Waters’ paper, and they will simply conclude that Trump and Israel and the Jews are evil. Nothing will have been gained, and much will have been lost. (This is another reason why Ben-Gvir and his followers who have been loudly trumpeting for transfer are dangerous as well as delusional.) But it’s important to expose and understand the fallacy of certain claims about ethnic cleansing, law and morality.