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47 Virginia Journal of International Law 63 (2006)


What is the true shape of our commitment to prohibit ethnic cleansing? This Article explores that question by considering a case observers have almost universally decided does not constitute ethnic cleansing. It examines the recent controversy in the European Union, when Sudeten Germans demanded that the Czech Republic apologize for having expelled them after WWII before being admitted to the EU. Their demands were almost universally rejected and the legality of the expulsions was reconfirmed by all relevant actors. So what is the consequence for customary international law's rules on ethnic cleansing?

The Article derives the customary legal norms logically arising from that rejection. It makes two specific claims about the Law of the Holocaust that has arisen since Nuremberg: 1) that despite our otherwise absolute commitment against ethnic cleansing, the Sudeten case identifies a Corollary, an identifiable and predictable limit on our willingness to oppose ethnic cleansing; and 2) that the same case establishes limits on our commitment to restitution for mass violence.

The Article also asks why these norms do not appear as acknowledged doctrine; the inquiry, therefore, is not simply into the rules, but into law's construction of them. Throughout, the Article considers the responsibility of the present to order itself in light of the past: what is the proper moral and legal response to actions that implicate a bygone age and the suffering of another century?

This Article constitutes the first part of a larger project on rethinking the definition and legal contours of ethnic cleansing, as well as the first chapter of a five-part project examining Europe's legal and political identity through the prism of controversies over ethnicity in Central Europe.