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.

In 1950, the principles of the Nuremberg Tribunal were published as a general set of rules to guide indictments on charges of crimes against humanity. Three categories of crimes were described as punishable under international law, with deportation appearing under two of them. The three categories were crimes against peace, war crimes, and crimes against humanity.

As a war crime, deportation is described as a "violation of the laws or customs of war" that includes "deportation to slave labor or for any other purpose of civilian population" (International Law Commission of the United Nations, 1950). Several observations are warranted. First, deportation is defined in relation to the laws or customs of war and is thus strictly connected to the existence of a conflict (the nexus requirement). Second, the definition is encompassing, specifying that the purpose may be slave labor or any other potential purpose. Third, it retains the element also found in the ICC definition: the crime is directed against the civilian population.

The inclusion of deportation in the crimes against humanity category falls 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 these are tied to the other categories, referring to acts carried out "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 must be present here as well for deportation to be classified as a crime against humanity.

From this perspective, the ICC Statute's elimination of any required connection to war crimes or crimes against peace — and thus the implicit existence of a conflict for a crime against humanity to exist — is highly significant. It places deportation in an entirely new framework, one in which even peacetime acts can be included in the crimes against humanity category, as long as the elements of the ICC Statute are satisfied. This means that any dictator who illegally moves civilian populations in a systematic manner can be accused of deportation or forcible transfer.

The absence of a connection to war or conflict also matters from another perspective. War crimes are placed within the framework of international agreements and conventions relating to the customs of war, while crimes against humanity are taken out of that war framework and placed into a much broader one — encompassing not only crimes committed outside of war but also a wider range of criminal acts.

It is sometimes difficult to draw distinctions between war crimes and crimes against humanity, particularly when crimes against civilian populations occur in conflict areas. The ICC Statute therefore complements the ICTY and ICTR Statutes. The ICTY Statute differs from the ICC Statute in three main respects: (1) there must be a direct connection between the armed conflict and the crime; (2) the victims must be any civilian population; and (3) the crime is not necessarily systematic or widespread. With the ICTR, the main difference is that the crime must have a national, ethnic, racial, or religious motivation, a requirement not present in the ICC Statute.

It was arguably in the Tadic decision that crimes against humanity became clearly distinct from war crimes committed against individuals. The most important distinction is that war crimes committed against individuals are distinctively tied to war acts and conflicts, while no such connection is required for crimes against humanity. The elimination of this nexus is important, as it allows crimes committed outside of armed conflict — but still bearing all the significant characteristics of crimes against humanity, including a policy background and systematic or widespread scope — to be prosecuted accordingly. The Tadic decision also established that crimes against humanity may be considered more grave than war crimes.

The differences between genocide and crimes against humanity are best explained by Patricia Wald. 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 consists of "acts committed against a racial, religious, national or ethnic group" done "with the specific intent of destroying the group in whole or in part 'as such.'"

Several important differences follow from this definition. First, as noted above, the ICC Statute does not require that crimes against humanity — including deportation — have a political, national, ethnic, or religious motivation, as the definition of genocide does. A crime against humanity can be placed entirely outside any such framework, while genocide requires such an underlying motive.

Second, crimes against humanity must be part of a systematic campaign or widespread policy; isolated acts falling outside such a framework do not qualify. Genocide, by contrast, does not require this systematic characteristic. Finally, genocide demands a clear intent: the extermination of the targeted population. Crimes against humanity do not necessarily require this intent. With deportation, for example, as in the Srebrenica case discussed below, the intent was to displace a group of individuals, not to exterminate them physically.

This comparison reveals that the definition and conditions for crimes against humanity are considerably more flexible, as reflected in the enumeration of specific acts that can qualify as such. Genocide is a crime with a specific intent and a determined objective, while the concept of crimes against humanity is designed to encompass a larger number of potential crimes. From this perspective, genocide could arguably be subsumed under crimes against humanity if it also exhibited a systematic or widespread characteristic. The definition of genocide is decidedly 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." Similar to deportation is forcible transfer, with the key distinction that deportation involves displacement outside the state's borders, while forcible transfer involves displacement within them (as established in the Krstic and Brdjanin decisions).

Beyond the general elements that characterize a crime as a crime against humanity, the important issue with forcible transfer is the lawfulness of the presence of the individuals in a given region. The authority carrying out the deportation may always argue that the displaced population was not lawfully present in that particular territory. Such issues can be difficult to prove, as they typically rest on precise historical facts that are often hard to establish.

The jurisprudence specifically includes both deportation and forcible transfer without drawing a further distinction between the two. Decisions such as that in Blagojevic and Jokic (Trahan, 2006, p. 350) specifically state 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."

To illustrate deportation as a crime against humanity, this paper draws on cases from the ICC's jurisprudence and examines how the events satisfy the defining characteristics of crimes against humanity outlined above. One of the most instructive examples is the Srebrenica case, in which Bosnian Muslim civilians were forced out of Srebrenica into territory controlled by 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). Because these citizens were transferred within the same state, this constitutes forcible transfer rather than deportation in the strict sense. Nevertheless, it is necessary to show why this act qualifies as a crime against humanity and how it meets the four main criteria outlined above.

The most critical criterion is that the crime must be directed against a civilian population, involve multiple acts and a policy element, and be widespread or systematic (Robinson, 1999). As noted, the Srebrenica transfer was directed against the Muslim civilian population and formed part of a larger ethnic cleansing policy pursued during the wars in Bosnia. Importantly, following the quote above, the target was not a particular segment of the civilian population but its entirety — women, children, elderly, and Bosnian Muslim men alike (as specified in the Blagojevic and Jokic decision).

This makes the act both a policy element and a systematic act, because it was not an isolated event but rather a continued series of similar acts targeting a particular category of the population. Although the victims were Bosnian Muslims, it bears emphasis that an ethnic or religious dimension is not a necessary condition for a crime to be classified as a crime against humanity under the ICC Statute. The policy element and the systematic nature of the act are supported by testimonies as well as by the broader historical record of events in Bosnia during that period.

The Bosnian Muslims were forcibly transferred, which implies an intent to perform such an act — an inference further supported by the fact that this was part of a coordinated policy. The Army of the Republika Srpska described the operation as an "evacuation," but all testimonies confirmed that the displaced population had no alternative choice.