CH Protection and Forcible Displacemet
Treaty instruments
1907 Hague Convention respecting the Laws and Customs of War and Land
While the 1907 Hague Convention does not explicitly refer to forcible displacement, Articles 42-56 have been considered as implicitly protecting against this practice.
1945 International Military Tribunal Charter (Nuremberg)
Article 6
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(b) “War crimes:” namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, … deportation to slave labour or for any other purpose of civilian population of or in occupied territory …
(c) “Crimes against humanity:” namely … deportation, and other inhumane acts committed against any civilian population, before or during the war.
1949 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War
Article 45 (4) “In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs.”
Article 49 (1) “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.”
Article 147 “unlawful deportation or transfer … of a protected person” constitutes a grave breach of the Convention.
Protocol 4 to the European Convention on Human Rights
Article 3(1) “No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national.”
Article 4 “Collective expulsion of aliens is prohibited.”
International Covenant on Civil and Political Rights
Article 13
‘’An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.’’
American Convention on Human Rights
Article 22(5) “No one can be expelled from the territory of the state of which he is a national or be deprived of the right to enter it.” Article 22(9) states: “The collective expulsion of aliens is prohibited.”
Additional Protocol I
Article 85(4)(a) “the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory, in violation of Article 49 of the Fourth [Geneva] Convention” is a grave breach of the Protocol.
Additional Protocol II
Article 17(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.’’
Article 17(2)’’Civilians shall not be compelled to leave their own territory for reasons connected with the conflict.’’
1981 African Charter on Human and Peoples’ Rights
Article 12(5) “The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups.”
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Article 3: “No State party shall expel or return a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”
1989 Indigenous and Tribal Peoples Convention
Article 16
(1). Subject to the following paragraphs of this Article, the peoples concerned shall not be removed from the lands which they occupy.
(2). Where the relocation of these peoples is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent. Where their consent cannot be obtained, such relocation shall take place only following appropriate procedures established by national laws and regulations, including public inquiries where appropriate, which provide the opportunity for effective representation of the peoples concerned.
Article 6(e) “[f]orcibly transferring children of the group to another group” constitutes genocide when “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.
Article 7(1)(d) “[d]eportation or forcible transfer of the population”, “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack,” constitutes a crime against humanity.
Article 8(2)(a)(vii) “[u]nlawful deportation or transfer” constitutes a war crime in international armed conflicts.
Article 8(2)(b)(viii) “the deportation or transfer [by the Occupying Power] of all or parts of the population of the occupied territory within or outside [the territory it occupies]”, constitutes a war crime in international armed conflicts.
Article 8(2)(e)(viii) “[o]rdering 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”, constitutes a war crime in non-international armed conflicts.
Article 9
‘’The subject-matter jurisdiction of the Extraordinary Chambers shall be the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, crimes against humanity as defined in the 1998 Rome Statute of the International Criminal Court and grave breaches of the 1949 Geneva Conventions and such other crimes as defined in Chapter II of the Law on the Establishment of the Extraordinary Chambers as promulgated on 10 August 2001.’’
Article 3(1)(a) States Parties shall: “[r]efrain from, prohibit and prevent arbitrary displacement of populations”.
Article 3(1)(d) : States Parties shall ‘’respect and ensure respect for their obligations under international law, including human rights and humanitarian law, so as to prevent and avoid conditions that might lead to the arbitrary displacement of persons’’ and (g) ‘’all persons have a right to be protected against arbitrary displacemen.t”
Article 7(5)(a), the Convention also prohibits “dissident armed forces or other organized armed groups that are distinct from the armed forces of the state” from “carrying out arbitrary displacement”.
Other Instruments
Article 23
‘’Private citizens are no longer murdered, enslaved, or carried off to distant parts, and the inoffensive individual is as little disturbed in his private relations as the commander of the hostile troops can afford to grant in the overruling demands of a vigorous war.’’
1946 International Military Tribunal Charter (Tokyo)
Article 5(c) established individual responsibility for crimes against humanity, including “deportation, and other inhumane acts committed against any civilian population, before or during the war”.
Principle VI crimes under international law “deportation to slave-labour or for any other purpose of civilian population of or in occupied territory” is a war crime and that “deportation and other inhuman acts done against any civilian population” is a crime against humanity.
1974 UN Declaration on the Protection of Women and Children in Emergency and Armed Conflict
Paragraph 5 ‘’All forms of repression … of women and children, including … forcible eviction, committed by belligerents in the course of military operations or in occupied territories shall be considered criminal.’’
1991 ILC Draft Code of Crimes against the Peace and Security of Mankind (1991)
Article 22(2)(a) “deportation or transfer of the civilian population” is regarded as an “exceptionally serious war crime”.
Under Article 2(g) the Tribunal is competent to prosecute unlawful deportation or transfer of civilians as a grave breach of the 1949 Geneva Convention IV.
Article 5(d) provides that deportation, when committed against any civilian population, constitutes a crime against humanity.
Under Article 3(d) deportation, when committed as part of a widespread and systematic attack against any civilian population on national, political, ethnic, racial or religious grounds, constitutes a crime against humanity.
1996 ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 20(a)(vii) “[u]nlawful deportation or transfer … of protected persons” is a war crime.
1998 Guiding Principles on Internal Displacement
Principle 5
‘’All authorities and international actors shall respect and ensure respect for their obligations under international law, including human rights and humanitarian law, in all circumstances, so as to prevent and avoid conditions that might lead to displacement of persons.’’
Principle 6
1. Every human being shall have the right to be protected against being arbitrarily displaced from his or her home or place of habitual residence.
2. The prohibition of arbitrary displacement includes displacement: (b) in situations of armed conflict, unless the security of the civilians involved or imperative military reasons so demand.
Principle 9
‘’States are under a particular obligation to protect against the displacement of indigenous peoples, minorities, peasants, pastoralists, and other groups with a special dependency on and attachment to their land.’’
1998 Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines
Article 3(7) of Part IV provides that the following are and shall remain prohibited at any time and in any place whatsoever:
‘’Practices that cause or allow the forcible evacuations or forcible reconcentration of civilians, unless the security of the civilians involved or imperative military reasons so demand; the emergence and increase of internally displaced families and communities.’’
Section 6(1)(a)(vii), “[u]nlawful deportation or transfer” constitutes a war crime in international armed conflicts. According to Section 6(1)(b)(viii), “the deportation or transfer [by the Occupying Power] of all or parts of the occupied territory within or outside this territory” constitutes a war crime in international armed conflicts. According to Section 6(1)(e)(viii), “[o]rdering 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”, constitutes a war crime in non-international armed conflicts.
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