Deportation as a Crime Against

Deportation as a Crime Against Humanity

General considerations on crimes against humanity

The judicial concept of crimes against humanity has always been historically difficult to define, because of several reasons. Both main terms in the concept are hard to place in a certain context and in a framework that can have general acceptance of the elements that, put together, could be indicted on a charge of crimes against humanity. Starting with the end of the 19th century and the beginning of the 20th century, the concept of humanity and related terms such as humane or inhumane (treatment or approaches) came to develop the general perspective on what could later be termed as crimes against humanity and the conditions that a crime would need to meet for it to be labeled in this manner and indicted as such.

As, the name itself suggests that the concept is actually formed of an enumeration of terms that are labeled as crimes against humanity. In this case, the problem is that the respective enumeration may not be exhaustive, but will still need to provide a comprehensive list of crimes that all bear the common characteristics of crimes against humanity. Further more, and this is also very important, it will provide a set of defining characteristics that a certain crime would need to have in order to be labeled as a crime against humanity. These will be listed below, but basically they include a systematic or widespread act, the targeting of the civilian population etc.

Second, the concept may have been designed by victors in treating the losing side and, thus, may have carried along some of the subjectivism of such a scenario. There has always been debate, for example, about the Nuremberg Tribunal and, especially, about its legitimacy. The most important issue was whether the Allies (most notably the Soviets) had not, at different occasions and under certain circumstances, also been involved in this type of crimes. If that had indeed occurred, then what could have been the moral stance that they could use in judging the Germans. The lack of a mutually established platform for judgment to be used for such cases created this problem.

Third, sometimes the concept of crimes against humanity may be overlapping with some other similar concepts, such as war crimes or genocide, it is important thus to properly define its particular segment of definition. All of these are perceived strictly through the fact that they bring a distinct harm to the civilian population. However, if one looks more in depth at these issues, it becomes more clear that some of these are war time acts only, while others aim at the complete extermination of the civilian population according to ethnical, religious or national criteria, while the crimes against humanity encompass a large number of crimes against the civilian population, but without bearing these important characteristics of the other two.

Deportation itself is simply one distinctive form of crime against humanity. Starting with the events in the Turkish Empire in 1915, directed towards the Armenian population, deportation or, in its similar for of forcible transfer or displacement, has been used as a mean to intimidate the civilian population, to cause them harm and even to tacitly worsen its economical condition and, thus, make it weaker.

This paper will aim at analyzing the judicial concept of crimes against humanity and at showing, through different historical examples and case studies, that deportation can be seen as such a crime. At the same time, the paper will want to differentiate deportation from other acts that cannot be included in the category of crimes against humanity, but associate it with similar acts, such as forcible transfers, forms of deportation where the transfer is within the boundaries of the state.

The purpose of the paper will be reached by discussing the definition of crimes against humanity, as provided by the Rome Conference, bringing the concept into context and comparing it with other similar forms of crimes against civilians, such as war crimes and genocides, examining the different acts of deportation and emphasizing the objective element in these crimes and including these acts of deportation in the general framework defined in Rome.

Crimes against humanity

Until the Rome Conference, the best definition of crimes against humanity was used in practice during the Nuremberg and Tokyo War Tribunals and included a list of crimes such as murder, extermination, enslavement and deportation. Until then, the concept was used in relations with the vague interpretation of humane or inhumane act, including in previous acts of deportation or forcible transfer, such as that in 1915 in the Ottoman Empire or during the First World War.

The form of the concept that was used in Nuremberg was not a form that had been conceived through the contribution of all or most governments in the world, but rather an instrument created by the victorious powers of the Second World War in an attempt to create a legal and judicial framework in which the criminals of the war could be judged. It was obviously for the entire world, not only for the victors in 1945, that Nazi Germany could list an impressive, albeit unfortunate, list of crimes against humanity and one would need only determine the right framework and its characteristics in order to be able to judge those responsible for the acts.

The Rome Conference and the International Criminal Court Statute eliminated this perceived singularity: 160 countries participated in the creation of the final statute. In addition to this, the new document had some new and relevant specifications aimed at defined the outreach for crimes against humanity more clearly. The contribution of such a large number of countries in the process of elaborating the final statute of the ICC gave the final provisions much more legitimacy and authority.

One of these was the relationship between a state of armed conflict and crimes against humanity. In the previous interpretation, the two were related, mainly because the latter had occurred during the Second World War and because there was no intervention in internal conflicts between the central authority and the civilian population that might have justified dissociating the two categories of crimes.

During World War II, there was distinctive public assertions and protests against German deportations of civilians, the act being included both as a war crime and as a crime against humanity (Bassiouni, 1999). These acts of deportation were taking place both in the context of the war (as was the case with the deportation of numerous populations during the invasion of the Soviet Union), but also inside Germany with the deportation of the Jewish population. The acts were still, however, associated with the conflict that the countries were part of at the time.

However, the majority of delegations in Rome showed that "such a limitation would have rendered crimes against humanity largely redundant, as they would have been subsumed in most cases with the definition of war crimes" (Robinson, 1999). Such a clause allowed for a significant redefinition of the crimes against humanity concept outside the strict war framework and an inclusion of examples such as crimes of the government against its own population etc.

Another convention that came out of the Rome Conference was that a crime does not require a discriminatory motive to be considered a crime against humanity (Robinson, 1999). There are several things worth referring to here. First of all, as mentioned by Robinson in his paper, such an additional requirement would have made the job of the prosecutor significantly more difficult, mainly because it would have meant an additional issue that would have been required to be proven. The problem would not have necessarily been the extra volume of work, but the fact that the prosecutor might have found it unreasonably more difficult to arrive to a positive conclusion with his case, without the discriminatory clause bringing in an additional element for the case itself.

Secondly and somewhat deriving from what was previous said, including such an additional requirement would have probably dramatically increased the chances that some notorious acts would have been excluded from the category of crimes against humanity simply because they were not politically, ethnically or religiously motivated. The decision was correct: the list of possible motives, to which one could add national and racial, is not sufficiently comprehensive to ensure that no crimes would avoid the label of crimes against humanity exactly because of this additional requirement.

The act also needs to be directed against any civilian population, involving multiple acts and a policy element, and be widespread or systematic (Robinson, 1999). This paper will not aim at discussing the entire debate on this particular point, notably whether the act needs to be both systematic and widespread, but will only show that this generous enumeration, while adding to the difficulty of the prosecutor's case, also includes three very important elements for a crime to be considered a crime against humanity: the victims are civilians, there is a policy and this is either widespread or systematic. 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.

Deportation

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 force out of Srebrenica and into territory controlled by the Bosnian Muslims, in Bosnia Herzegovina. They were moved from the "Srebrenica enclave through Potocari, including the women, children and elderly, who were transported to Kladanj, and the Bosnian Muslim men who were bussed out of Potocari to temporary detention facilities in Bratunac" (Trahan 2006). As these citizens were transferred within the same state, this is not a deportation, but a forcible transfer, however, one needs to argue following the presentation above, why this was a crime against humanity. This crime needs thus to fit the four main criteria previously mentioned.

The most important issue from these criteria is the fact that this crime was directed against any civilian population, involving multiple acts and a policy element, and was widespread or systematic (Robinson, 1999). As mentioned, it was directed against the Muslim civilian population and it was part of a larger ethnic cleansing policy that was used during the wars in Bosnia. At the same time, following the previous quote, it is important to add that the target was not a particular segment of the civilian population, but rather its entirety to include women, children, elderly, as well as the Bosnian Muslim men (the enumeration comes from the Blagojevic and Jokic decision).

This made the act both a policy elements and a systematic act, because it was not a singular event taken out of context, but rather a continued string of similar events that was targeting a particular category of the population (Bosnian Muslims -- although, as it has been shown previously, this was not necessarily a condition for a crime to be labeled as a crime against humanity: there was no necessity for the presence of political, ethnical, religious or economical elements for a crime to be perceived as a crime against humanity). The policy elements and the issues that make this a systematic act come both from the testimonies, but also from the fact that historically, this could be seen in Bosnia during the respective period of time.

The Bosnian Muslims were forcibly transferred, which means that there was an intent to perform such an act, something that is also supported by the fact that this was part of a policy. The Bosnian Muslims were, in fact, evacuated, which is the term used by the Army of the Republika Srpska and all testimonies showed that there was alternative choice.

The repetitiveness also emphasizes the continuity of the act and the presence of the objective element, also necessary for a proper classification of a crime as a crime against humanity. The intent was obviously there and there are several elements to argue for that, most importantly the coercive element, which is also mentioned in the definition of deportation, as presented in the ICC Status. It is also part of the Brdjanin decision, stipulating that "it is essential for both deportation and forcible transfer that the displacement takes place under coercion." As he continues, the main element that defines a coercive action is the fact that the persons involved had no choice, the act itself being involuntary on their part (Trahan 2006,-page 350). Again, this also ties into what was previously mentioned in the last paragraph, referring to the fact that the Muslims were forcibly transferred.

The removal was also intended to be permanent, something that the jurisprudence covers in the Brdjanin decision. This obviously ties into what was previously mentioned, especially since this was a systematic policy rather than an isolated act, that meant that the removal had to be permanent, as the state was conducting a transfer policy for the Bosnian Muslims.

Finally, as pointed out in Blagojevic and Jokic (Trial Chamber), paragraphs 631 and 707 (Trahan 2006,-page 352) there was a "component of persecution." This is probably also related to the fact that this was a systematic approach and policy rather than an isolated act and that it was simply one of the events or component of a larger wave of persecution occurring in Bosnia Herzegovina during that period of time.

The element that made the two concepts distinctive at that certain point was the fact that crimes against humanity needed to be either widespread or systematic, something that the definition of the conditions for a crime to be considered a crime against humanity already include in the ICC Statute. This type of mention could also mean that the presence of the widespread or systematic criterion could more or less involve any individual act in a larger framework of crimes against humanity, if the act came on a background of systematic persecution.

The Tadic decision also had some of the essential elements of the crimes against humanity concept, notably bringing forth the need of a background policy of persecution although, and this is significant in the context, it does not necessarily need to be a direct or an explicitly formulated one.

The Tadic decision also brings interesting developments of the objective element, based here on two essential elements: intent and knowledge. The intent has been mentioned in the discussion and will be mentioned in the next paragraphs as well, however, it is the knowledge that is interesting here in its purpose of extending the framework in which an individual can be accused of crimes against humanity. The fact itself that someone had knowledge of the act means that he or she could be accused of crimes against humanity, also because the intent could thus be argued out of the knowledge element (someone who has knowledge of an issue has at least tacitly accepted that issue as being valid. Intent would only need to additionally prove the will to implement that act rather than just acknowledging it as valid).

Deportation in Darfur

Darfur has become one of the contemporary examples of crimes against humanity, including abominable acts such as organized murders, crimes and forcible transfers. The forcible transfer cases are, unfortunately, plentiful as well, as the case against President Bashir clearly states. In this, the crime of forcible transfer, defined as "a crime against humanity, within the meaning of article 7(1 )(d) of the Statute;" is stipulated in point V of his indictment (ICC, 2009).

One of the acts that has been reported by the Human Rights Watch involves the forcible transfer of groups of Masalit, including women and children, to other parts of the country and the resettlement of Janjaweed family in the same areas formerly used by the Masalit population (Human Rights Watch, 2004). There are distinct reasons why this type of act is considered a deportation and a crime against humanity.

First of all, it is part of a systematic line used by the central government in Sudan and an organized policy. This latter part is more difficult to prove, but the key is probable in the fact that this is not only an act of deportation, but also an associated resettlement, which shows that the central government is following a policy of repopulation in these areas, which means that this is something systematic and coordinated and that there is knowledge about it with the people involved, most likely up to the President himself.