The policy and the systematic or widespread characteristics are the essential elements in proving that there was knowledge and that the act was coordinated by the central authority or by a certain authority.
Finally, the last additional issue is the presence of the objective element. The objective element connects the act to a widespread or systematic one, with the will of the individual directed towards a repetitive act. The objective element also brings the additional important element of intent, the intent to commit the respective acts of crimes against humanity.
War Crimes vs. Crimes against Humanity
In 1950, the principles of the Nuremberg Tribunal were published as a general set of rules on which to base indictments on charges of crimes against humanity. There were three categories of crimes described as being punishable under international law, with deportation appearing under two such categories. The three categories were crimes against peace, war crimes and crimes against humanity, with deportation mentioned in enumerations under both of the latter categories.
As such, as a war crime, deportation is mentioned as a "violation of the laws or customs of war which include" "deportation to slave-labor or for any other purpose of civilian population" (International Law Commission of the United Nations, 1950). There are several things worth analyzing here. First of all, deportation is defined in relation to the laws or customs of war and is thus strictly connected to this (presence of the nexus). Second, the terms is encompassing, because it specifies that the purpose can either be for slave labor or any other potential purpose. Third, it also contains one of the specifics of the ICC definition, the fact that this is a crime directed against the civilian population.
The inclusion of deportation in the crimes against humanity category is also under an enumeration that includes "murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population," (International Law Commission of the United Nations, 1950), but this is tied into the previous categories, referring to the fact that these crimes are "in execution of or in connection with any crime against peace or any war crime" (International Law Commission of the United Nations, 1950). The connection element needs to exist here as well for deportation to be classified as a crime against humanity.
From this perspective, one can notice that the elimination in the ICC Statute of any connection with war crimes or crimes against peace and, thus, the tacit existence of a conflict for a crime against humanity to exist, is very important in that it places deportation in a totally new framework, one in which even in peace time, the acts of individuals can be included in the crimes against humanity category, including deportation cases, as long as the elements from the ICC Statute are respected. This means that any dictator illegally moving, under a systematic approach, civilian population, can be accused of acts of deportation or forcible transfer.
The absence of this connection to war or conflict for crimes to be considered crimes against humanity in the definition of the ICC Statute is important from another perspective as well. War crimes are placed in the context of the international agreements or conventions related to war customs, while the crimes against humanity are taken out of this war framework and placed into a much larger one to include not only crimes that are not committed during the war, but also a larger range of crimes.
It is sometimes difficult to identify distinctions between war crimes and crimes against humanity, especially in those cases when crimes against the civilian populations occur in conflict areas. The ICC Statute comes thus to complete the ICTY and ICTR Statutes. The ICTY Statute has three main distinctions from the ICC Statute: (1) there needs to be a direct connection between the armed conflict and the crime; (2) the victims of the crime are any civilian populations and (3) the crime is not necessarily systematic or widespread (from, page 365). With the ICTR, the main difference is that the crime needs to have a national, ethnical, racial or religious motivation, where the ICC Statute does not require such a motivation.
It was probably in the Tadic decision that crimes against humanity became distinctive from war crimes committed against individuals. The most important distinction seems to be the fact that, while war crimes committed against individuals are distinctively linked to war acts and conflicts, there is no such connection in the case of crimes against humanity.
The elimination of this nexus is important, as has been previously shown, in including in the crimes against humanity framework of crimes that are not necessarily committed during conflicts, but still have all the significant characteristics of crimes against humanity, including the policy background, the systematic or widespread characteristics, etc. The Tadic decision also showed that crimes against humanity may be considered more grave than war crimes.
Genocide vs. Crimes against Humanity
As for the differences between genocide and crimes against humanity, these are best explained by Patricia Wald. As such, crimes against humanity require that "the acts prosecuted be part of a systematic or widespread attack against a civilian population" (Wald, 2007), with existing knowledge of the fact, while genocide is comprised of "the acts committed against a racial, religious, national or ethnic group and be done with the specific intent of destroying the group in whole or in part "as such."
There are several important differences worth emphasizing following this definition. First of all, as previously shown, the ICC Statute does not require that crimes against humanity, including deportation, have a necessary political, national, ethnical or religious motivation, as does the definition for genocide. Indeed, the crime against humanity can be placed completely outside any such framework, while a genocide will need such an underlying motive.
Second, the crimes against humanity need to be part of a systematic campaign or widespread policy and, thus, cannot be considered crimes against humanity if these are isolated acts outside such a framework. With genocide, this systematic characteristic does not need to be present. Finally, with genocide the intent needs to be clear: the extermination of the respective population. With crimes against humanity, this does not necessarily need to be the intent: with deportation, for example, as in the case of the example of Srebrenica mentioned, the intent was to displace a group of individuals, not exterminate them physically.
With this presentation of the two acts, one could point out that the definition and conditions used in the case of crimes against humanity is much more flexible, including through the enumeration of certain acts that can be understood as crimes against humanity. Genocide is a crime with a specific intent and determined objective, while the concept of crimes against humanity is a concept so designed to encompass a larger number of potential crimes. From such a perspective, genocide could probably be included as crimes against humanity, if it had a systematic or widespread characteristic attached. The definition for genocide is definitely more restrictive than that of crimes against humanity.
According to Article 7 of the ICC Statute, deportation can be 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" (from ). Similar to deportation is the forcible transfer, with the exception that in deportation the displacement of persons is taking the individuals outside the State borders, while in forcible transfer, it is inside the country borders (Krstic, but also in the Brdjanin decision).
Beyond the main elements that characterize a crime as being a crime against humanity, previously mentioned here, the important issue with a forcible transfer is the lawfulness of the presence of the individuals in a certain region. The problem in this case is that the authority that acts to promote the deportation act may always make a point out of the fact that the population being displaced was not lawfully present in that particular territory. Such issues can sometimes be difficult to prove, mainly because they would need to be based on precise historical facts which, more often than not, are difficult to find.
Deportation during the Bosnian conflict
The jurisprudence also specifically includes both deportation and forcible transfer and makes no other distinction between the two. Decisions such as that of Blagojevic and Jokic (Trahan 2006,-page 350) specifically mention that "it is a crime against humanity to forcibly displace members of the civilian population unless any of the law's exceptions applies justifying displacement" (Trahan 2006,-page 350).
In order to best present the deportation as a crime against humanity, this paper will use several cases from the ICC's jurisprudence and emphasize how these events fit the enumeration of the different characteristics of the crime against humanity concept, as shown in the previous paragraphs. One of the best examples in this case is the Srebrenica case, where a number of 25 Bosnian Muslim civilians were…