Blog post written by Professor James C. Simeon (York University, Canada). A more detailed paper and argument was recently presented on the subject of persistent protracted armed conflict and the criminalization of ‘mass forced displacement’, as a serious international crime and an atrocity crime, at the Refugee Law Initiative’s Third Annual Conference held in London on 18-19 July 2018.
There is an overriding and pressing need for the criminalization of all forms of ‘mass forced displacement’ through international criminal law and the United Nations’ Responsibility to Protect (R2P) doctrine. The development and application of such legal provisions under the jurisdiction of the International Criminal Court (ICC), as a core serious international crime, and as an ‘atrocity crime’ under the UN’s R2P doctrine, could help to address the root causes of the ‘mass production of forced displacement’ as an instrument of modern warfare, that utilizes ‘mass forced displacement’ as a weapon of war.
The latest issue of UNHCR’s Global Trends: Forced Displacement in 2017 clearly reinforces the fundamental and glaring point that at least more than two-thirds, 68 percent, of the world’s forcibly displaced persons were fleeing protracted armed conflict and other forms of extreme violence. And, remarkably, these people came from just five countries: Syrian Arab Republic (6.3 million); Afghanistan (2.6 million); South Sudan (2.4 million); Myanmar (2.1 million); and Somalia (986,400). All of these countries are well-known for being engaged in protracted armed conflict for years, and, in some instances, for decades.
Take, for instance, the Syrian civil war that has been ongoing since 2011 and has resulted in some 400,000 people killed or missing. More than half of the population of Syria (53 percent) has been displaced, with 5.6 million refugees and 6.1 million internally displaced. The Syrian civil war has been described as the ‘world’s deadliest conflict’. What is totally grotesque about the Syrian civil war, in terms of its size, scope, and severity, is that this protracted armed conflict has produced three times more forcibly displaced persons than each of the next four countries that produce the largest numbers of forcibly displaced persons in the world.
Similarly, the present conflict in Afghanistan has been ongoing since shortly after September 11, 2001 and has gone through various phases. The International Institute for Strategic Studies’ Armed Conflict Survey 2018 reported that there were 15,000 causalities in Afghanistan in 2017. This places Afghanistan as the world’s fourth deadliest conflict. While similar causality statistics can be provided for the other three countries on the list of the five highest source countries (South Sudan, Myanmar, and Somalia) that account for more than two-thirds of the world’s forcibly displaced, the fundamental and significant point here is that the principal root cause of forced displacement in the world today is protracted armed conflict.
It is also crucial and relevant to point out that there are a record high number of 68.5 million people who have been forcibly displaced in the world as of the end of 2017. This number has been rising steadily for years. For example, four years ago in 2014, Antonio Guterres, the current Secretary General of the United Nations, but, the UN High Commissioner for Refugees then, stated,
We are witnessing a paradigm change, an unchecked slide into an era which the scale of global forced displacement as well as the response required is now dwarfing anything seen before.
The total number of people who were forcibly displaced at the end of 2013 was 59.5 million people and this was, in fact, an 8.3 million jump in the number of forcibly displaced from the previous year, the highest annual increase on record. Pointedly, the Global Trends: Forced Displacement in 2014 report was also titled, World at War.
It is patently evident that mass forced displacement needs to be addressed at its root cause, protracted armed conflict. There is, of course, no simple and straightforward solution to addressing this principal cause for refugeehood. Realistically, the multiple, interrelated and complex causes of protracted armed conflict will require many different complementary, reinforcing and magnifying initiatives and efforts over a sustained and long period of time. What is offered here is only one small piece of an enormously difficult and complex undertaking of winning a ‘just peace for all’. The United Nations is, of course, the leader tasked with ending the ‘scourge of war’, but, by no means the only international organization with this responsibility. In fact, we all have a role to play in this at both the individual and collective level, because, it directly impacts on all of us.
The predominant form of armed conflict in the world today is non-international armed conflict or civil war that is driving the vast bulk of all mass forced displacement. Moreover, there is a close correlation between non-international armed conflict and terrorism. In fact, terrorism can serve as an accelerant for mass forced displacement in situations of protracted armed conflict. What propels people to flee protracted armed conflict situations, in ever greater numbers, is the intense fear of terrorism — random political violence that deliberately targets civilian non-combatants — within the context of protracted armed conflict. Indeed, it has been argued that forced displacement is an integral part of the military tactics of modern warfare.
The international community has already recognized that forced displacement is a serious international crime under certain circumstances and conditions. Indeed, it has identified ‘ethnic cleansing’ as one of the four ‘atrocity crimes’ under the R2P doctrine, along with war crimes, crimes against humanity, and genocide.
However, it is pertinent and significant to note that there is no commonly accepted definition of what constitutes ethnic cleansing or the exact acts that would fall under this term. Moreover, ethnic cleansing has never been criminalized and it is assumed that it can be subsumed under one or more of the other three atrocity crimes.
The term ethnic cleansing emerged during the Balkan Wars, 1991-1999.[1] It was also employed by the International Criminal Tribunal of the Former Yugoslavia (ICTY) in a number of landmark cases. The ICTY acknowledged that ethnic cleansing was not a legal term, but, did make the observation that the policy of ethnic cleansing has obvious similarities to the policy of genocide.
It has long been accepted that mass forced displacement is employed by opposing forces in war, whether intrastate or interstate, as a deliberate strategy and method either to obtain or to remove people from a geographic territory. Kelly M. Greenhill has coined the phrase, ‘weapon of mass migration’ that she has defined as “coercion engineered migrations (or coercion-driven migrations)” … as “those cross-border population movements that are deliberately created or manipulated in order to induce political, military and/or economic concessions from a target state or states”.[2] And, Adam Lichtenheld has noted that, “Population displacement has long been employed as a tool of statecraft and a weapon of war”. Indeed, population displacement during times of war has been recognized as a violation of both international humanitarian law, the laws of war, and international criminal law.
Article 49 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Times of War prohibits, “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not … regardless of their motive”. The International Committee of the Red Cross has also found that the deportation or forcible transfers of civilians from occupied territories is contrary to customary international humanitarian law.
Likewise, under international criminal law, deportation, forcible transfer or the expulsion of people has been criminalized under the 1998 Rome Statute, that established the International Criminal Court (ICC).[3] Hence, ‘unlawful deportation’, Article 8(2)(a)(vii), is a war crime under the 1998 Rome Statute. And, ‘deportation and forcible transfers of a population’, Article 7(1)(d) of the 1998 Rome Statute, “if committed as part of a widespread or systematic attack directed against the civilian population, with knowledge of the attack”, is a crime against humanity.
Hence, ‘arbitrary displacement’ is criminalized under international humanitarian law and international criminal law. Nevertheless, ‘non-arbitrary displacement’ is not criminalized. For instance, when persons are forced to flee a war or battle zone because the living conditions there are unbearable due to the lack of water, food, medical supplies, or the probability of being killed by cross-fire or being a victim of collateral damage. So, even when civilians are not being deliberately targeted in an armed conflict situation they are inevitably forced to flee to some other location within their country or outside their country. But, under international humanitarian law civilians are not to be harmed and, indeed, ought to be protected during an armed conflict. However, in reality this is rarely, if ever the case, as the combatants are typically engaged in a full-pitched battle to win the war, and, as amply demonstrated through recent history, at any cost, irrespective of number of civilian causalities. Accordingly, there appears to be a gap in the protection of civilians in international law who are often caught in a predicament, where they have to leave a combat or war zone in order to protect their lives and security, even when they are not being deliberately targeted as a ‘weapon of war’, in an armed conflict.
Accordingly, given that fact that ethnic cleansing has been identified as an ‘atrocity crime’, but has yet to be defined precisely or to be independently criminalized, and, given the fact that there appear to be glaring gaps in the protection of civilians who are forced to flee combat or war zones in order to protect their lives and security, and, given that ‘deportation, forcible transfer, and expulsion’ are prohibited under international humanitarian and criminal law, it seems evident that the next logical step in the evolution of international law is to criminalize ‘mass forced displacement’. In short, it should be made a serious international crime and incorporated within the jurisdiction of the ICC as a separate crime, like: war crimes, crimes against humanity, genocide, and aggression. Mass forced displacement should also be included as an atrocity crime in the R2P doctrine, along with ethnic cleansing. Mass forced displacement could, then, encompass ethnic cleansing, with a precise legal definition.
The time, in fact, has long passed to criminalize ‘mass forced displacement’ and to hold all those persons who are responsible for the mass production of refugees and other forced migrants to account for their atrocity crime. This could come about through an amendment to the 1998 Rome Statute and the R2P doctrine in the same manner that the crime of aggression was incorporated in the Rome Statute and the R2P doctrine was adopted by the UN General Assembly.
The criminalization of ‘mass forced displacement’, in its broadest sense and not simply in the present terms and understanding of either international humanitarian law and/or international criminal law or the R2P doctrine, would help to address, at least in small part, the perilous situation of those who have to flee a war zone in order to protect their life and limb by virtue of the volatile situation and circumstances of terrorism, combined with protracted armed conflict, as the principal drivers of mass forced displacement in the world today.
Footnotes:
[1] BBC News, Balkan war: a brief guide, 18 March 2016, https://www.bbc.co.uk/news/world-europe-17632399. (accessed July 8, 2018) Where it notes that, “Yugoslav army units, withdrawn from Croatia and renamed the Bosnian Serb Army, carved out a huge swathe of Serb-dominated territory. Over a million Bosnian Muslims and Croats were driven from their homes in ethnic cleansing. Serbs suffered too. The capital Sarajevo was besieged and shelled. UN peacekeepers, brought in to quell the fighting, were seen as ineffective.”
[2] Kelly M. Greenhill, “Weapons of Mass Migration: Forced Displacement as an Instrument of Coercion,” Strategic Insights, (2010) 9, pp. 116-59.
[3] Rome Statute of the International Criminal Court, [as corrected by the procés-verbaux of 10 November 1998 and 12 July 1999], http://legal.un.org/icc/statute/romefra.htm. (accessed June 24, 2018) See Article 7(d), crimes against humanity, and Article 8 (2)(e)(viii), war crimes.
Acknowledgements:
Photograph: ©Wikimedia Commons
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