Customary IHL: The Act of Displacement

Source: ICRC

"Rule 129.

A. Parties to an international armed conflict may not deport or forcibly transfer the civilian population of an occupied territory, in whole or in part, unless the security of the civilians involved or imperative military reasons so demand.

B. Parties to a non-international armed conflict may not order the displacement of the civilian population, in whole or in part, for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand.

Summary

State practice establishes these rules as norms of customary international law applicable in international (A) and non-international (B) armed conflicts respectively.

International armed conflicts

The prohibition of the deportation or transfer of civilians goes back to the Lieber Code, which provides that “private citizens are no longer … carried off to distant parts”.[1] Under the Charter of the International Military Tribunal (Nuremberg), “deportation to slave labour or for any other purpose of civilian population of or in occupied territory” constitutes a war crime.[2] The prohibition of the transfer or deportation of civilians is set forth in the Fourth Geneva Convention.[3] In addition, according to the Fourth Geneva Convention and Additional Protocol I, it is a grave breach of these instruments to deport or transfer the civilian population of an occupied territory, unless the security of the civilians involved or imperative military reasons so demand.[4] Under the Statute of the International Criminal Court, “the deportation or transfer [by the Occupying Power] of all or parts of the population of the occupied territory within or outside this territory” constitutes a war crime in international armed conflicts.[5]

Numerous military manuals specify the prohibition of unlawful deportation or transfer of civilians in occupied territory.[6] It is an offence under the legislation of many States to carry out such deportations or transfers.[7] There is case-law relating to the Second World War supporting the prohibition.[8]It is also supported by official statements and by many resolutions adopted by international organizations and international conferences, including condemnations of alleged cases of deportation and transfer.[9]

The Supreme Court of Israel has stated on several occasions, however, that Article 49 of the Fourth Geneva Convention was not meant to apply to the deportation of selected individuals for reasons of public order and security,[10] or that Article 49 did not form part of customary international law and that therefore deportation orders against individual citizens did not contravene the domestic law of Israel.[11]

Evacuation of the civilian population

In both international and non-international armed conflicts, State practice establishes an exception to the prohibition of displacement in cases where the security of the civilians involved or imperative military reasons (such as clearing a combat zone) require the evacuation for as long as the conditions warranting it exist. This exception is contained in the Fourth Geneva Convention and Additional Protocol II.[24] The possibility of evacuation is also provided for in numerous military manuals.[25] It is contained in the legislation of many States.[26]

The Guiding Principles on Internal Displacement prohibit the “arbitrary” displacement of persons, which is defined as including displacement in situations of armed conflict, “unless the security of civilians involved or imperative military reasons so demand”.[27] The exception of “imperative military reasons” can never cover cases of removal of the civilian population in order to persecute it.[28]

The Fourth Geneva Convention further specifies that evacuations may not involve displacement outside the bounds of the occupied territory “except where for material reasons it is impossible to avoid such displacement”.[29] With respect to non-international armed conflicts, Additional Protocol II specifies that evacuations may never involve displacement outside the national territory.[30]

Prevention of displacement

State practice also underlines the duty of parties to a conflict to prevent displacement caused by their own acts, at least those acts which are prohibited in and of themselves (e.g., terrorizing the civilian population or carrying out indiscriminate attacks). As stated in the Guiding Principles on Internal Displacement:

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.[31]

Ethnic cleansing

“Ethnic cleansing” aims to change the demographic composition of a territory. In addition to displacement of the civilian population of a territory, this can be achieved through other acts which are prohibited in and of themselves such as attacks against civilians (see Rule 1), murder (see Rule 89) and rape and other forms of sexual violence (see Rule 93). These acts are prohibited regardless of the nature of the conflict and have been widely condemned."