Deportation as a Crime Against Humanity: Law and Cases

The judicial concept of crimes against humanity has always been historically difficult to define, for several reasons. Both main terms in the concept are hard to place in a context and within a framework that can command general acceptance of the elements that, taken together, could support an indictment on charges of crimes against humanity. Starting at 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 — came to shape the general perspective on what could later be termed crimes against humanity, and the conditions that a crime would need to meet in order to be labeled and indicted as such.

As the name itself suggests, the concept is actually formed by an enumeration of acts labeled as crimes against humanity. The problem is that this enumeration may not be exhaustive, yet it must still provide a comprehensive list of crimes that share the common characteristics of crimes against humanity. Equally important, it must provide a set of defining characteristics that a given crime would need to possess in order to be classified as a crime against humanity. These characteristics will be discussed below, but essentially they include a systematic or widespread act and the targeting of the civilian population.

Second, the concept may have been designed by victors dealing with the losing side and may therefore carry some of the subjectivism inherent in that scenario. There has always been debate about the Nuremberg Tribunal, and especially about its legitimacy. The most important issue was whether the Allies — most notably the Soviets — had not, on different occasions and under certain circumstances, also been involved in this type of crime. If that had indeed occurred, what moral stance could they have used to judge the Germans? The absence of a mutually established platform for judgment created this problem.

Third, the concept of crimes against humanity can sometimes overlap with other similar concepts, such as war crimes or genocide, making it important to properly define its particular scope. All three categories are understood primarily through the harm they bring to the civilian population. However, a closer examination reveals that some are wartime acts only, while others aim at the complete extermination of a civilian population along ethnic, religious, or national lines. Crimes against humanity encompass a large number of crimes against the civilian population without necessarily bearing these specific characteristics of the other two categories.

Deportation is simply one distinctive form of crime against humanity. Starting with the events in the Ottoman Empire in 1915 directed against the Armenian population, deportation — or its related form of forcible transfer or displacement — has been used as a means to intimidate the civilian population, cause them harm, and tacitly worsen their economic condition, thereby weakening them.

This paper analyzes the judicial concept of crimes against humanity and demonstrates, through historical examples and case studies, that deportation can be classified as such a crime. At the same time, it differentiates deportation from acts that cannot be included in the category of crimes against humanity, while associating it with similar acts, such as forcible transfers in which the displacement occurs within a state's borders. This purpose is pursued by discussing the definition of crimes against humanity as provided by the Rome Conference, comparing it with war crimes and genocide, examining specific acts of deportation, and placing those acts within the general framework defined at Rome.

Until the Rome Conference, the most practically applied definition of crimes against humanity had emerged from the Nuremberg and Tokyo War Tribunals, which enumerated crimes such as murder, extermination, enslavement, and deportation. Until then, the concept was understood through the vague interpretation of humane or inhumane acts, including earlier instances of deportation or forcible transfer, such as those in the Ottoman Empire in 1915 and during the First World War.

The version of the concept used at Nuremberg was not created through the contribution of most world governments, but rather was an instrument fashioned by the victorious powers of the Second World War in order to establish a legal and judicial framework for prosecuting war criminals. It was obvious to the entire world — not only to the victors in 1945 — that Nazi Germany could list an extensive, if unfortunate, catalog of crimes against humanity. What remained was to determine the right framework and its characteristics in order to judge those responsible.

The Rome Conference and the International Criminal Court Statute eliminated this perceived singularity: 160 countries participated in drafting the final statute. The new document also included relevant specifications aimed at more clearly defining the scope of crimes against humanity. The contribution of so many countries lent the final provisions considerably greater legitimacy and authority.

One significant specification concerned the relationship between a state of armed conflict and crimes against humanity. In the previous interpretation, the two were linked, largely because the latter had occurred during the Second World War and because there had been no basis for intervening in internal conflicts between central authorities and civilian populations that might have justified separating the two categories of crimes.

During World War II, there were distinct public protests and condemnations against German deportations of civilians, with those acts included both as war crimes and as crimes against humanity (Bassiouni, 1999). These deportations took place in the context of the war — as in 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 nonetheless still associated with the conflict in which the countries were engaged at the time.

However, the majority of delegations at Rome argued 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). This approach allowed for a significant redefinition of crimes against humanity outside the strict war framework, making it possible to include crimes by governments against their own populations, among other examples.

Another principle that emerged from 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 points worth noting here. First, as Robinson explains, such an additional requirement would have made the prosecutor's task significantly more difficult, not merely because of the extra workload, but because proving discriminatory motivation might have proven unreasonably difficult, undermining the viability of a prosecution. Second, including such a requirement would likely have excluded certain notorious acts 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 motivations — is not sufficiently comprehensive to guarantee that no crimes would escape the label of crimes against humanity because of this additional requirement.

The act must also be directed against any civilian population, involve multiple acts and a policy element, and be widespread or systematic (Robinson, 1999). This generous enumeration, while adding to the complexity of the prosecutor's case, highlights three essential elements for classifying a crime as a crime against humanity: the victims are civilians, there is a policy, and the acts are either widespread or systematic. The policy element and the systematic or widespread characteristic are essential in proving that there was knowledge of the acts and that they were coordinated by a central or other recognized authority.

Finally, the last key element is the objective element. The objective element connects the individual act to a widespread or systematic pattern, with the will of the individual directed toward a repetitive act. It also introduces the essential element of intent — the intent to commit the respective acts constituting crimes against humanity.