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Unlawful Population Transfer and the Limits of International Criminal Law
Published online by Cambridge University Press: 19 April 2002
Abstract
This article examines the draft Declaration on Population Transfer and Implantation of Settlers developed within the framework of the UN Sub-Committee on the Prevention of Discrimination and the Protection of Minorities. The draft declaration provides for the criminalisation of involuntary population transfer. This article argues that the Declaration will be ineffective in practice and will introduce inconsistency and confusion into the law. However, the attempt to introduce a crime of unlawful population transfer reflects a lacuna in existing law. And yet, this gap is unlikely to be filled by extending existing international crimes to cover ethnic cleansing. This is because existing crimes do not address the international community’s sense of what it is that makes ethnic cleansing so heinous. Thus some action needs to be taken. However, this article argues that the ability of the international community to proceed appropriately is stymied by the fact that international criminal lawyers lack the basic tools and the concepts by which to categorise different types of harm.
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Footnotes
My thanks go to Robert Burrell.
References
1 For example, The Prosecutor v. Radislav Krstic (Srebrenica) IT-98-33, 2 August 2001.
2 For example, The Prosecutor v. Karadzic and Mladic IT-95-18.
3 Final Report of the Special Rapporteur, Mr Al-Khasawneh, Commission on Human Rights Sub-Commission on Prevention of Discrimination and Protection of Minorities on the Human Rights Dimension of Population Transfer, including the Implantation of Settlers and Settlements E/CN.4/Sub.2/1997/23, 27 June 1997, which was preceded by a Preliminary Report E/CN.5.Sub.2/1993/17 and Corr.1 and a Progress Report E/CN.4/Sub.2/1994/19 and Corr. 1. The final report incorporates the conclusions and recommendations of an expert seminar on population transfer and implantation of settlers held at Palais des Nations, Geneva, February 1997. Annex II of the Final Report contains the draft Declaration. Alternative suggestions to the draft Declaration included the adoption of an additional protocol to the International Covenants on Human Rights and a Convention on the Prevention and Punishment of the Crime of Mass Expulsion.
4 52nd meeting, 17 April 1998 E/CN.4/Dec/1998/106.
5 On population transfer see Zayas, A., “International Law and Mass Population Transfers” (1975) 16 Harvard International Law Journal 207Google Scholar; Meindersma, C., “Population Transfers in Conflict Situations” (1994) 16 Netherlands International Law Review 31Google Scholar.
6 On the mens rea for international crimes see article 30, Rome Statute of the International Criminal Court 1998 U.N. Doc. A/CONF.183/9, (1998) 37 ILM 1002; article II, Convention on the Prevention and Punishment of the Crime of Genocide 1948 78 UNTS 277; Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, ICTY App.Ch., 15 July 1999; A. Cassese, International Law (Oxford, 2001) p. 248.
7 J. Preece, “Ethnic Cleansing as an Instrument of Nation-State Creation: Changing State Practices and Evolving Legal Norms” (1998) 20 H.R.Q. 817.
8 On self-determination see A. Cassese, Self-Determination of Peoples A Legal Reappraisal (Cambridge 1995).
9 On jus cogens see articles 53 and 64 of the Vienna Convention on the Law of Treaties 1155 UNTS 331; for the view that the right to self-determination constitutes a jus cogens norms, see East Timor Case, Portugal v. Australia I.C.J. Rep. 1995, 90.
10 Article II states that “… genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.” Convention on the Prevention and Punishment of the Crime of Genocide 1948 78 UNTS (1951) 277.
11 Accordingly, when determining whether it was able to prosecute former Chilean head of state, Pinochet, the Spanish court interpreted the requirements of the Genocide Convention broadly to require an intention to destroy a group as such ”… based on shared characteristics. … those persecuted in the Southern Cone were targeted as a group because they were perceived to deviate from the military view of society as Christian as well as anti-Marxist and to be insufficiently aligned with the peculiar military view of the ‘nation’. A similar argument has been made in UN reports and by human rights advocates, but had not been accepted by a court before.” de Brito, A.B., Gonzale-Enriquez, C. and Aguilar, P. (eds.), The Politics of Memory Transitional Justice in Democratising Societies (Oxford, 2001) p. 52Google Scholar; on the interpretation of the Genocide Convention by the United Nations War Crimes Tribunals see Verdirame, “The Genocide definition in the jurisprudence of the ad hoc Tribunals” (2000) 49 I.C.L.Q. 578.
12 Article 6(c), Charter of the International Military Tribunal at Nuremberg; Article 5, Statute of International Criminal Tribunal for the former Yugoslavia UN doc. S/25704 of 3 May 1993; Article 3, Statute of the International Tribunal for Rwanda UN doc. SC/5974 of 12 January 1995; Article 7, Rome Statute of the International Criminal Court UN doc. A/CONF. 183/9.
13 ICTFY has held that persecution, is “the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law reaching the same level of gravity as the other acts prohibited in article 5 [of its statute]” Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, Vlalko Kupreskic, Drago Josipoxic. Dragan Papic and Vladimr Sanlic Case No. IT-95-16-T. 14 January 2000, para. 621.
14 The Prosecutor v. Dario Kordic, Case No. IT-95-14/2, 26 February 2001, para. 209.
15 Ibid., para. 210.
16 Article 49, Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, 75 UNTS (1950) 387; Article 2 (g), Statute of International Criminal Tribunal for the former Yugoslavia, UN doc. S/25704 of 3 May 1993. In non-international armed conflicts see article 17, 1977 Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts 1125 UNTS (1979) 609 and article 3 common to the four Geneva Conventions 1949. It is now widely accepted that violations of Protocol II and common article 3 lead to individual criminal responsibility and attract universal jurisdiction, Prosecutor v. Dusko Tadic, Case No, IT-94-10A, ICTY App. Ch., 5 July 1999.
17 See, for example, at the international level, Prosecutor v. Delalic el al., IT-96-21, App. Ch. Judgment, 20 February, 2001, paras. 412-413.
18 On the meaning of ethnic cleansing and the use of the term by the international community, see D. Petrovic, “Ethnic Cleansing—An Attempt at Methodology” (1994) 5 E.J.I.L. 324; N. Lerner, “Ethnic Cleansing” (1995) Israel Yearbook on Human Rights 102; Bell-Fialkoff, A., “A Brief History of Ethnic Cleansing” (1993) Foreign Affairs 110Google Scholar; J. Preece, “Ethnic Cleansing as an Instrument of Nation-State Creation: Changing State Practices and Evolving Legal Norms” (1998) 20 H.R.Q. 817.
19 De Zayas, A., “The Right to One's Homeland and Ethnic Cleansing” (1995) 6 Criminal Law Forum 257, 258Google Scholar.