This article shows the complexities of incorporating the crimes related to forced displacement into clear-cut legal categories for the purpose of international criminal prosecution. The article focusses mainly on war crimes and crimes against humanity, in particular those related to forced displacement.
It starts by introducing the concepts of war crimes and crimes against humanity. It states that international crimes consist of violations of international customary rules or treaty provisions that are binding on States and other entities, and are intended to protect values considered important by the whole international community. Moreover, there exists a universal interest in repressing these crimes. As a consequence of the violation, individual criminal responsibility arises.
The article moves on to discuss the concept of war crimes. It states the first requirement of a war crime is that it has taken place during armed conflict. However, not all crimes committed during an armed conflict are said to constitute war crimes. There has to be a ‘nexus’ (link) between the criminal conduct and the armed conflict. According to the ICTY in the Kunarac case, ‘what ultimately distinguishes a war crime from a purely domestic offence is that a war crime is shaped by or dependent upon the environment – the armed conflict – in which it is committed.’ Another requirement of a war crime is that the victim is generally a protected person under international humanitarian law. A third requirement of a war crime laid down in the article is that it must be shown that the armed conflict created both the context and opportunity for the offence. This is easily shown when the perpetrator is acting on an official mission occasioned by the armed conflict, acting for example as a military combatant on operation. However, if the perpetrator is a civilian, a finding must be made that the armed conflict indeed created the situation and opportunity for the offence. As a last requirement, only serious violations of humanitarian law are considered to be war crimes.
The article continues by stating that some types of forced transfer are deemed lawful, such as the ones dictated by the need to safeguard the civilians themselves in the course of military operations, or such as those allowed at the time by the rules on requisitions of workers. The latter exception is provided for in Article 51 of Geneva Convention IV. According to the Krupp case, ‘Deportation of civilians from one nation to another during times of war becomes a crime if the transfer is carried out without a legal title, […], when the purpose of the displacement is illegal’, and ‘whenever generally recognized standards of decency and humanity are disregarded.’ The article concludes that when the required nexus between the transfer and the conflict itself can be shown, the unlawful transfer of civilians during an armed conflict amounts to a war crime. Therefore, it applies in both international and non-international armed conflicts.
Subsequently, the article discusses the concept of crimes against humanity. According to the ICTY and ICTR, crimes against humanity must be committed as part of a widespread or systematic attack against the civilian population. This attack must be large-scale or organized and have a civilian population as its primary object. Crimes against humanity are enumerated in article 7 of the ICC Statute, with minor variations to the acts enumerated in the ICTY and ICTR Statutes. The ICTY and ICTR Statutes list among crimes against humanity: murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecutions on political, racial and religious grounds and other inhumane acts.
According to the article, forced displacement essentially exists both in the form of war crimes and crimes against humanity. One of the main differences between the two is that under the category of war crimes, prosecuting authorities need to show the existence of the required ‘nexus’ (link) with an armed conflict. Under the category of crimes against humanity, establishing of the existence of an armed conflict is not necessary, but the deportation must be part of a widespread and systematic attack against a civilian population.
According to the article, the most important practical difference in terms of prosecution policy is that in the case of war crimes, victims can only be ‘protected persons’ under the applicable Geneva Conventions or the Additional Protocols. This limitation does not apply to crimes against humanity. Thus, forced displacement as a crime against humanity appears to protect potentially broader range of victims. Moreover, deportation and forcible transfer as war crimes may only be committed during a military occupation by an occupying power (in an international armed conflict) or when a party to a non-international conflict controls a portion of territory and displaces protected persons living there. The article concludes that despite the relatively extensive jurisprudence on the subject, several legal and policy questions remain unanswered, and will need to be further analysed in light of future legal practice and developments.