Since the Nuremberg trials, various international tribunals have dealt with the crime against humanity of forcible deportation of civilian population. For instance, in the 1995 case of Nikolić, the International Criminal Tribunal for former Yugoslavia (ICTY) ruled that deportation could be qualified as both a grave breach of the Geneva Conventions and a crime against humanity.
Crime against humanity
Article 7 of the Rome Statute lists a number of crimes against humanity that fall under the jurisdiction of the ICC, in particular when committed “as part of a widespread or systematic attack directed against any civilian population.” The crimes listed include the “Deportation or forcible transfer of population” (Article 7(1)(d)).
“Attack directed against any civilian population” here means “a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.”
“Deportation or forcible transfer of population” is defined as the “forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.” Deportation is generally distinguished from transfer if the concerned civilians are forcibly transported across the border to the territory of another state.
For a crime to be considered a crime against humanity, it must be large-scale or systematic, i.e. of sufficient gravity so as to warrant international concern. Random or isolated acts of violence against civilians or civilian property are therefore not considered crimes against humanity. It is sufficient to prove one of the two criteria (large-scale or systematic) for the attack to be considered a crime against humanity. However, this rather broad scope is counterbalanced by including a policy element in the definition of attacks against civilian population. In other words, the crime must also be part of a state policy or practice, or of that of an entity exercising de facto authority over the territory. Finally, it must be connected to an armed conflict, whether internal or international. In the case of forcible transfers, the civilians concerned must have also been lawfully present in the area prior to the transfer.
The notion of ‘lawfully presence’ has not been sufficiently scrutinized by international criminal tribunals. However, in the 2010 cases of Popović, the ICTY ruled that,
The clear intention of the prohibition against forcible transfer and deportation is to prevent civilians from being uprooted from their homes and to guard against the wholesale destruction of communities. In that respect, whether an individual has lived in a location for a sufficient period of time to meet the requirements for residency or whether he or she has been accorded such status under immigration laws is irrelevant. Rather, what is important is that the protection is provided to those who have, for whatever reason, come to “live” in the community – whether long term or temporarily. Clearly the protection is intended to encompass, for example, internally displaced persons who have established temporary homes after being uprooted from their original community. In the view of the Trial Chamber, the requirement for lawful presence is intended to exclude only those situations where the individuals are occupying houses or premises unlawfully or illegally and not to impose a requirement for “residency” to be demonstrated as a legal standard.1
Significantly, the policy “need not be formalized and can be deduced from the way in which the acts occur,” as the ICTY ruled in the 1995 case of Tadić.
The Tribunal also ruled that, “It would be sufficient to prove that the crime was committed in the course of or as part of the hostilities in, or occupation of, an area controlled by one of the parties.”
In its 2010 decision on the authorization of an investigation into the situation in the Republic of Kenya,2 the Pre-Trial Chamber of the ICC stated that a state policy “does not necessarily need to have been conceived at the highest level of the State machinery.” Thus, a policy adopted by regional or even local organs of the state, or of an entity exercising de facto authority over the territory, could satisfy the requirement of a state policy.
Finally, it should also be noted that the term “deported or forcibly transferred” is interchangeable with “forcibly displaced”, and that the term “forcibly” is not restricted to physical force but may include “threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment.”3
Article 8(b)(viii) of the Rome Statute also prohibits a related war crime, namely:
The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.
This crime only appears in the Fourth Geneva Convention (Article 49) in relation to the transfer of civilian population into and out of occupied territories. Thus, for the article to apply, it must first be established that the territory concerned is occupied and that that the context within which the population transfer took place is an international armed conflict. Article 49 states:
Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.
Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.
The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated.[…]
The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.
In contrast to crimes against humanity, plan, policy or scale are not required elements of war crimes. One single act may constitute a war crime. However, it is unlikely that a single act would meet the gravity threshold required by the Rome Statute, as already indicated. The act should be committed “as part of a plan or policy or as part of a large-scale commission of such crimes.”
Article 8(b)(viii) of the Rome Statute and Article 49 of the Fourth Geneva Convention only concern occupied territory. However, paragraph (e)(viii) of the same Rome Statute Article lists as a war crime a similar “serious and systematic” violation of the international law in armed conflicts not of an international character:
Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand.
This provision is inspired by Article 17 of Additional Protocol II, which concerns non-international armed conflicts:
1. The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand. Should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition.
2. Civilians shall not be compelled to leave their own territory for reasons connected with the conflict.
We will shortly present a case for treating the ongoing war in Syria as an international armed conflict and regime-controlled areas of Syria as territory occupied by the Iranian regime and the militias it controls. But even without this, the Rome Statute and Protocol II prohibit the forcible displacement and transfer of civilian population and consider it a war crime.
The forcible displacement or transfer of civilian population, whether in international or non-international armed conflicts, is considered as both a crime against humanity and a war crime. Both can be applied concurrently to the Syrian case. The previous chapter provided various examples indicating that such acts have been committed by the Syrian and the Iranian regimes repeatedly in certain parts of Syria.
Notes & References:
1. For a more detailed discussion of this, see this paper.
2. Available here.
3. See the Elements of the Crime for Article 7(1)(d).