Connect with us

International Law

Forced Population Transfers, Mass Expulsions, and Migration: The Law and its Claw

Published

on

Human inception with autochthonic affinities coated in political proclivities harbingered and vouched for exclusivity of ethnicity, race,and religion in every part of the world. But civilizations have been interacting, intermingling andintermixingever since the people have accomplished the art of movements from one place to another by utilizing and developing the transport technologies of all kinds. However, in the contemporary circumstances, humanity is at war per se that pandered to a catena of causes of population movements across the human spectrum. Population transfers, expulsions, and forced migrations that take place in inconsistent conditions and a wide diversity of circumstances at the moment are coordinatedby a convoluted hodge-podge of legal labyrinth comprising the IHRL—International Human Rights Law, IRL— International Refugee Law, IHL—International Humanitarian Law, and IDL—International Development Law.The population transfer is allowed only in rare and restricted circumstances, with the standards of lawful transfer determined by explicit or implicit prohibitions contemplated predominantly in IHRL and IHL.

The Draft Population Transfer Declaration (PTD) defines illegal Population Transfer and the Implantation of Settlers, 1997 annexed to the Final Report of Special Rapporteur Al-Khasawneh, which was acceptedby the UNCHR (UN Commission on Human Rights) and ECOSOC in 1998. The PTDwas drafted by the UNCHR’s Sub-Commission on Prevention of Discrimination and Protection of Minorities, which was renamed as Sub-Commission on the Promotion and Protection of Human Rights in 1999 until its functions and responsibilities were assumed in 2006 by the United Nations Human Rights Council (UNHRC). The Article 3 of the PTD defines “unlawful population transfer” as “a policy or practice having the goal or result of transferring the people into or out of a territory either within or across an international boundary or within into or out of an occupied territorywithout the informed and free consent of such transferred population and any obtaining population.”The focus of this entry is, first, in those circumstances in which expulsions and transfers may be lawful; and, second, upon the preconditions, limitations, and other requirements, including most notably the right to compensation which needs to be satisfied to render such transfers lawful. However, the forced population transfers have been ruminated upon separately.

The Genesis of the Legal Norms

History is replete with instances of population transfer and its devastating effects on communities and individuals. There is no shortage of examples: population transfer and slavery; dispossession of indigenous peoples; population transfers as a result of treaties. Forthree centuries, before the slave trade was legally prohibited in Britain in 1807,  and afterwards, at the international level,by the General Act of the Brussels Conference Relating to the African Slave Trade-1890, the Slavery Convention-1926 and the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practice Similar to Slavery-1956, was banned. The transatlantic slave traders enslaved and transported at least 12 million Africans to the Americas. The American Colonization Society, established in 1816, organized the transportation of free black Americans and manumittedand emancipated the slaves to Liberia, a policy which generated significant debate and which had been disputedat the time by many African-Americans. While deportation for slave labourwas rightly condemned as a war crime at Nuremberg, the failure of the Tokyo Tribunal to condemn the transfer of “Comfort Women” into sexual slavery during World War-II has been justly castigated.It has been highlighted in the Gender-Based Crimes judgment handed down by the non-governmental organization calledWomen’s International War Crimes Tribunal that conducted the Trial of Japan’s Military establishment’s Sexual Slavery in 2001.

Indigenous people have been subject to widespread population transfers. Colonialism and Colonization led to the large-scale dispossession of indigenous peoples. Beginning with the Indian Removal Act, 1830[28 May 1830] whereunder an Exchange of Lands instead of the Indians Residing in any of the States, or Territories, and for Their Removal from the West of the Mississippi Riverwas provided.Consequently, series of statutes in the United States of America provided for the forcible removal of an estimated 100,000 Native Americans to reservations to make way for the settlers. Segregationist practices and policies in South Africa saw the creation of reserves for Africans and eventually led a system of apartheid based on Racial and Religious Discrimination popularly also known as South African Bantustan Policy to the establishment of the much-criticized homelands. Article-II (d) of the International Convention on the Suppression and Punishment of the Crime of Apartheid, 1973 prohibits, among other things, the creation of separate reserves on racial grounds. However, indigenous people continue to suffer population transfers often as a result of development projects reported by the Royal Commission on Aboriginal People, 1996 of administrative and development relocations of Canadian aboriginal people.

The population transfers have also been provided for by treaty. Greece and Bulgaria agreed to the consensual exchange of minorities in the 1919 Convention Respecting Reciprocal Emigration. The Convention relating to the Exchange of Greek and Turkish Populations-1923whereunder compulsory transfer of 1.5 million ethnic Greek population of Turkish nationality, and 400,000 ethnic Turks of Greek citizenshipwas provided. The treaty provided for a commission of representatives from Greece, Turkey, and the Council of the League of Nations to supervise transfers and the payment of compensation. However, controversy ascended over its scope ratione personae.  When the treaty’s compensation provisions proved unworkable, they were replaced by lump sum agreements.

The Legality of Forced Population Transfers

The legality of forced or compulsory population transfer was robustly contested at the time both at and beyond the conference table. Extensive population transfers took place before, during, and after World War-II, including those resulting from some bilateral population transfer treaties between the Reich and, for example, Italy, the Baltics, and the Soviet Union. Typically these deals included an “option clause” although it has been disputedwhether, in practice, consent was freely given. It is more accurate to categorize these events as a forced population transfer, as millions of individuals were in fact forcibly expelled (whether from the German-occupied territory, or within the Soviet Union) in blatant and unprecedented violations of international law.

At the conclusion of World War II, compulsory population transfers continued on a massive scale in Europe by inter-State agreement. A few weeks after the Allies adopted the UN Charter, the Soviet Union, the United Kingdom, and the US agreed at the Potsdam Conference-1945 that transfer to Germany of the German population in Czechoslovakia, Hungary, and Poland “will have to be undertaken” as per the Article XIII of the Potsdam Protocol and should “be effected in an orderly and humane manner” although in practice it was neither. The legality of the Potsdam Protocol under international law, as well as the subsequent forced population transfer, was stronglycontested at that time.Particularly, Article 7 of the PTD provides that international agreement can not legalize population transfers which violate fundamental human rights norms. Post-World War-II population transfers were not limited to German minorities: the agreement between Hungary and Czechoslovakia to exchange 200,000 Magyars and 200,000 Slovaks in February 1946 represents just one of some bilateral population exchange agreements of the impugned period.

The Potsdam Protocol has been regardedas an attempt to validate expulsions already in progress, as much as an endeavour to regulate future population transfers. Similarly, the Agreement between India and Pakistan on Minorities designated as “New Delhi Accord”-1950 served more like a “formal recognition of a fait accompli of the population transfer of about ten million population of Hindus and Muslims between India and Pakistanin the wake of the partition of the Indian Sub-continent in 1947. As the Preliminary Report observes, while such transfers were in some degree consensual and aimed at avoiding inter-ethnic conflict, they involved “a tragic human rights trade-off.” During the armed conflict in the former Yugoslavia, numerous resolutions by the UN Security Council (UNSC), including UNSC Resolution 826 (1993) and 859 (1993) called for the reversal of the effects of ethnic cleansing in Yugoslavia in its post-dissolution stage. However, some commentators criticized the General Framework Agreement for Peace in Bosnia, and Herzegovina popularly designated as Dayton Peace Agreement that ended the war in 1995, for affirming territorial changes brought about by ethnic cleansing.

With the entrenchment of IHRL in the second half of the 20th century, it is increasingly accepted that population transfers violate a series of human rights guarantees as identified in the judgments of Cyprus v. Turkey delivered by the European Court of Human Rights (ECtHR) on May 10, 2001. The Cyprus v. Turkeywas decided by the European Commission of Human Rights on October 04, 1992.The Sub-Commission constituted forthe Prevention of Discrimination and Protection of Minorities,and its Special Rapporteur studied the population transfer from the early 1990s, and his Final Report was published in 1997. The Final Report had recommended the adoption of a Comprehensive International Instrument on Population Transfer and appended the Model Declaration on Population Transfer to apply in all situations, and to all persons, groups, and authorities under Articles 1 and 2wherein a number of its terms reflect the current customary international law.Moreover, the jurisprudence developed by the International Criminal Tribunal for the Former Yugoslavia (ICTY) has also significantly influenced the development of the law on forced population transfer.

The Current Legal Phantasmagoria

If the international legal policy has changed over time to restrict the legality of population transfer, history offers valuable lessons. Firstly, it regrettably demonstrates the recurrent use of population transfers in State and nation-building. Secondly, it shows the international community’s all-too-frequent de facto acceptance of population transfer or its effects in pursuit of its perception of how the interests of peace are best served. Thirdly, as instances of population transfer demonstrate, the enforcement of law poses considerable challenges. But it is also worth emphasizing the existence of significant new problems, including the question of climatic displacement identified in the UNHCR “Forced Displacement in the Context of Climate Change: Challenges for States under International Law.” Therefore, the Forced population transfers are, as the Preliminary Report concluded, prima facie unlawful because they violate core norms of IHRL and IHL. A vast pool of human rights instruments prohibit the mass expulsion of nationals and aliens, and the rights of Internally Displaced Persons (IDPs) not to be arbitrarily displaced is recognized in the authoritative soft law developed by the UN Secretary-General’s Representative on Internal Displacement adopted as UN ECOSOC “Guiding Principles on Internal Displacement” in 1998.

As Article 3 of the PTD makes clear, the concept of population transfer encompasses settler infusion such as the implantation of Moroccan, Indonesian, and Chinese settlers into Western Sahara, East Timor, and Tibet respectively. By altering the demographic composition of host populations, settler infusions can jeopardize the exercise of the right to self-determination. In practice settler infusion and expulsion are often related, as is illustrated by the illegal expulsion under the government of late Saddam Hussein of ethnic minorities from oil-rich regions of northern Iraq, accompanied by the resettlement of Arabs in furtherance of a policy of “Arabization.” However, in certain assiduouslydefined circumstances, population transfers may be lawful. Article 3 of the PTD makes the legality of population transfer dependent on the informed consent of host and transferred populations. In areview of Special Rapporteur Al-Khasawneh’s “Progress Report” under Para 25 along with international jurisprudence and international conventions, concludes that this principle of consent has reached the status of a general principle of international law. The transfer is non-consensual where it is forcible, coerced, or induced.  As obtaining informed consent often presents considerable difficulty, the Progress Report rightly emphasizes the need for monitoring mechanisms to ensure officialapproval.

International Human Rights Law

Additionally, population transfers may be lawful in certain situations such as national emergency, public disorder, or environmental crises, but in each case only subject to the fulfillment of conditions for lawful derogation from non-derogable human rights in thestate of emergency. For example, while it follows from the protection of freedom of movement under Article 12 of International Covenant on Civil and Political Rights-1966 (ICCPR), Article 13 of Universal Declaration of Human Rights (1948) (UDHR), and Article 5 of International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) that population transfer within a State or across an international border is prohibited, derogations from the right to freedom of movement, to the choice of residence, to leave, and to return are permitted. Such derogations are tightly circumscribed and limited to the public interest and compensation must be awarded as expounded by the “Inter-American Commission on Human Rights Report of November 29, 1983,ona section of the Nicaraguan population of Miskito origin and their Human Rights conditions. Similarly, Article 4 of the PTD permits displacement only where either the safety of the transferred population or imperative military reasons demand. In such circumstances, displaced persons should be allowed to return immediately when the conditions rendering their displacement imperatively cease. Transfers must not interfere with minority and indigenous rights of the host population.  Where the purpose or means of population transfer violate norms of jus cogens (peremptorynorms of international law), it is, indeed, prohibited.

Forced Population Transfer & Indigenous Peoples

The Preliminary Report states that population transfer is the primary cause of land loss of the indigenous people as it constitutes a principal factor in the process of ethnocide as discussed at Para 101 of the Report. However, while Article16 (1) of International Labour Organization (ILO) Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries (1989) states that indigenous peoples should not be removed from the lands they inhabit. This fundamental principle is subject to the exception and prerequisites detailed in Article16 (2) of ILO Convention No 169 as follows:Where the relocation of these peoples is considered to be necessary as an exceptional measure, therefore, such kind of relocation shall take place only with their free and informed consent. Where their consent cannot be obtained or ascertained, such relocation shall take place just following appropriate procedures or due process established by the national laws and regulationsincluding public inquiries where necessary, which provide the opportunity for valid representation of the peoples concerned.

If relocation occurs, indigenous peoples are entitled to be compensated for loss or injury as provided under Article 16 (5) of ILO Convention No 169 and they enjoy a right to return “wherever possible” once the reasons for relocation cease to apply [(Art. 16 (3) ILO Convention No 169)]. Where areturn is impossible, indigenous peoples should be provided with comparable alternative lands or, should they prefer, compensation (Art. 16 (4) ILO Convention No 169). These provisions concerning consent and compensation represent international custom (Progress Report Para. 27). Many indigenous groups have disassociated themselves from the convention, in part because of the overly permissive tenor of Article 16 of ILO Convention No 169 favours the State. The convention has also been criticized for failing to acknowledge the importance of the relationship of indigenous peoples to a particular place (Preliminary Report Para. 257). The non-binding Declaration on the Rights of Indigenous Peoples, adopted by the UN General Assembly (UNGA) on 13 September 2007, addresses some of these criticisms. Having noted in its Preamble the concern for the historical injustices indigenous people have suffered, among other things through colonization and the dispossession of lands, Article 10 of the Declaration on the Rights of Indigenous Peoples subjects relocation of indigenous people to their “free, prior and informed consent” in unqualified terms after “agreement on just and fair compensation” with an option to return where possible.“The Declaration on the Indigenous Peoples’ Rights” further provides that indigenous peoples have a right to redress and reparation for lands that have been taken or used in the past without their consent under Article 28. The Declarationobliges States to provide effective mechanisms to prevent and contain redress for forced population transfer under Article 8 (c) of the Declaration on the Rights of Indigenous Peoples regarding Environment and Indigenous Peoples also.

Population Transfer and Development

Beyond the context of indigenous people’s rights, the legality of population transfers carried out to make way for development projects is not currently subject to specific regulation by international treaties on the progressive development of International Law. However, referring to sources such as the principle of self-determination enshrined in Article 1 of the ICCPR-1966.UN resolutions on the development and human rights and development and the environment, the Preliminary Report authoritatively argues that customary international law already governs these incidences of population transfer (at Paras 300–311). The Final Report concludes that the legality of such population transfers depends on them being non-discriminatory, in the public interest, that they do not deprive people of their means of subsistence, and are subject to the consent of the people to be transferred. Their consent must be procured after dialogue and negotiation with the population’s elected representatives on “terms of equality, fairness,and transparency” (Article 68, Final Report). The transferred people should be provided with monetary compensation as well as equivalent land, housing, occupation, and employment.

Since 1980 the World Bank has responded to international pressure by developing a policy on involuntary resettlement documented by the World Bank Group. Operational Directive 4.30 (1990) was replaced in 2001 by Operational Policy 4.12 on-Involuntary Resettlement, as revised in February 2011. Reports have documented great enforcement difficulties, however, and resettlement has faced popular resistance as recorded on pages 211–212. The transnational coalition against the Narmada river dams contributed to the World Bank withdrawing its funding in 1993. A cross-border campaign, together with a negative World Bank Inspection Panel Report, led the Bank to withdraw its support for the China Western Poverty Reduction Project, which would have involved the settler infusion of around 58,000 Chinese into Tibet.

Population Transfer in Armed Conflict

Apart from voluntary transfers during international armed conflicts, under Article 49 of the 4thGeneva Convention Relating to the Protection of Civilian Persons in Time of War-1949 provides that during hostilities, temporary evacuation is permissible only where it is necessary for the “security of the population” or where “imperative military reasons do demand.”  Similar arguments are also advanced in situations of International Armed Conflicts and Military Necessity etc. Even then, temporary evacuation is subject to some conditions. Firstly, displacement is not permitted outside the territorial boundaries of the occupied State unless impossible to avoid “for material reasons” (Article 49, Geneva Convention-IV). Secondly, on the cessation of hostilities evacuees should be returned home. Thirdly, occupying powers are obliged to provide “to the greatest practicable extent” proper accommodation for those evacuated, and evacuations should be carried out “in satisfactory conditions of hygiene, health, safety,and nutrition.” Fourthly, family members should not be separated, and finally, protecting powers should be informed of all kinds of population transfers.

The transfer of acivilian population by an occupying power of its civilian population into occupied territory is also prohibited. However, there arefew disputes as to whether it constitutes a grave breach of the customary international law?In 2004, the ICJ held in the case of the Construction of a Wall in the Occupied Territory of Palestine and its Legal Consequences [2004] ICJ Rep. 136 Para 134 popularly called “Israeli Wall Advisory Opinion Case” that the construction of the wall and “its associated régime” violated the rights of the people of the Occupied Territory to freedom of movement, work, an adequate standard of living, education, and healthas well as the Jus Cogens right of self-determination.

In non-international armed conflicts, displacement is permitted only where it is required for the security of the transferees or imperative military necessity. In this case, Article 17 of the Additional Protocol-II, 1977 to Geneva Conventions-1949 requires that “all possible measures” must be taken to ensure the transferred population is “received under satisfactory conditions of shelter, safety, health, hygiene,and nutrition.” Otherwise, population transfers “for reasons relatingto the conflict” are forbidden. The Final Report calls for the parameters of the concept of “military necessity” to be further developed to prevent abuse advocated at Para. 39. However, the belligerents have “broad powers” to expel enemy nationals during an armed conflict as documented and titled under Civilians Claims: Eritrea’s Claims 15, 16, 23, 27–32 Para. 81 and further Paras 82 and 99; Civilians Claims: Ethiopia’s Claim 5 Para. 121. These powers are not, however, unlimited. Belligerents must ensure the application of humanitarian law,and humanitarian standards, including those contained in Articles 35 and 36 Geneva Convention IV enshrined in the Civilians Claims: Ethiopia’s Claim 5 Para. 122) but “Indiscriminate rounds-ups and expulsions based on ethnicity” are unlawful.

Remedies and Enforcement

Unlawful population transfer gives rise to State responsibility and individual criminal responsibility under Article 9 of the PTD where population transfers occur within the territorial boundaries of a single State, it may be difficult if not impossible to identify a State that is injured and, therefore, entitled to bring a claim under the traditional principles of State responsibility. However, third States may incur duties of non-recognition and non-assistance (the Construction of a Wall and itsLegal Consequences in the Occupied Palestinian Territory Case [Advisory Opinion, Para. 136]. From Britain’s naval interdiction of slave traders in the first part of the 19thcentury through to the use of force by the North Atlantic Treaty Organization (NATO) against Yugoslavia wherein the right of humanitarian intervention to prevent population transfer has been contested in the case popularly known as Legality of the Use of Force Case (Yugoslavia v Spain, Provisional Measures Order).

The right to return is central to restitution in inter-regnum under Article 8 of the PTD. Evidence for its customary international law status can be drawn from some international instruments such as provisions in human rights instruments, e.g. Article 13 (2) of the UDHR, Article 5 of the ICERD, Article 12 (4) of the ICCPR, Article 22 (5) of the American Convention on Human Rights, 1969, and Article 12 (2) of the African Charter on Human and Peoples’ Rights, 1981as well as UN Resolutions, Peace Agreements and Soft Law relating to IDPs (UN Guiding Principles on Internal Displacement, 1998). The Final Report considers that the State of origin is obliged to facilitate return (at Para. 60). The Dayton Peace Agreement made the return of refugees and displaced persons an “important objective of the settlement and resolution of the conflict in Bosnia and Herzegovina”as enunciated in Annexure 7, Article 1 (1) of Dayton Peace Agreement. It provides for refugees and displaced people to return to their “homelands of origin,” leaving the choice of destination to the returnees, and for the return of their property and compensation.

The practice of return has proved problematic with multi-dimensional ramifications as the right has been insufficiently enforced is illustrated by repeated failures to implement UNGA Resolution 194 (III) (1948) concerning the return of Palestinian refugees, and to secure the return of refugees in Cyprus. Likewise, security concerns and delay in resolving property claims have proved formidable obstacles to implementing return provisions in the Dayton Peace Agreement. Moreover, the scope of the right to return, particularly the effect of the passage of time, is unclear. As the Final Report states, “peace is ultimately an act of compromise” as noted at Para 63.Thus, the ECtHR has observed that:

“It cannot be within this Court’s purview in interpreting and applying the provisions of the Convention to execute an unconditional obligation on a Government to get on on the forcible ejection and rehousing of possibly large numbers of people (men, women, and children) even with the aim of justifying the rights of victims of violations of the Convention” (Demopoulos v. Turkey, Para. 116).

Of significant legal contestation is the effect of the Oslo Accords, which do not refer to UNGA Resolution 194 (III) on the right to return of Palestinian refugees. In 2003, the Danish Supreme Court refused to grant a right of return to the Thule tribe who were relocated in 1953 to facilitate the establishment of a US airbase, although it did order the payment of compensation (Hingitaq 53 v Prime Minister’s Office, Danish Supreme Court [28 November 2003] (2004) 98 AJIL 572).Similarly, on a number of occasions the whilst English courts have ruled that Britain’s removal of the Chagos Islanders between 1965 and 1973 to make way for an American Military Base, and the Orders in Council (2004) preventing their return, are illegal (R. [Bancoult] v. Secretary of State for Foreign and Commonwealth Affairs [No 2] [2007] EWCA Civ 498). The British government has opposed long-term resettlement, and the House of Lords has subsequently, on appeal, upheld the legality of prerogative orders preventing the unrestricted return of the Chagos Islanders (R [Bancoult] v. Secretary of State, Foreign and Commonwealth Affairs [No 2] [2008] UKHL 61).

Entitlement to compensation for unlawful population transfer forms part of duty on the part of the responsible State to compensate victims of human rights abuses, which is increasingly gaining recognition in modern international law (Report of the International Commission of Inquiry on Darfur Paras 590–603). Such a right is also recognized in specific international instruments, sometimes as a prerequisite to the lawfulness of transfer, but also for loss and injury arising from the transfer (Article 16, ILO Convention No 169; Article 8 of the PTD; Principle 29of UN Guiding Principles, 1998). The Progress Report suggests that in the case of lawful transfer damage should be compensated “as a matter of equity” as per Para137 that analyses the Equity in International Law. There is also judicial recognition of a victim’s right to receive compensation for loss arising out of population transfer as stipulated in the Loizidou Case. This right may require general measures to be taken at the national level according to the Broniowski Case, Xenides-Arestis v. Turkey [ECtHR]). Further, in Demopoulos v. Turkey, the ECtHR dismissed the claims of Greek Cypriots based on the EuropeanConvention on Human Rights(ECHR) under its Article 8 and Article 1 of the Additional Protocol to the ECHR on grounds of non-exhaustion of domestic remedies, holding that the Turkish Republic of Northern Cyprus Immovable Property Commission provided “an accessible and practical framework of redressal in regarding complaints about interference with the property owned by Greek Cypriots adumbrated at Para 127. Amongst the recommendations of the Final Report at Para 74 is the establishment of an International Trust Fund (ITF) for rehabilitation of population transfer survivors. The issue of reparations for the slave trade remains contested which has been shown by discussions taking place during the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in Durban in 2001.

Conclusion

It may aptly be understood that presently many regions in the world mainly Balkans and the Caucasus in Europe, South Asia (Statelessness) and South East Asia  (displaced persons—Rohingya refugees) have been devastated by ethnic and racial conflicts. The global conflicts in Gulf region, Syria, Yemen, Congo, Rwanda, South Sudan, Lebanon, etc. have triggered massive human displacements, refugee migration and asylum seekers that have been forcing people to flee within their homelands or abroad owing to fear of persecution.The absence of a single global instrument on population transfer leads to overlap, inaccessibility, and disparity in the level of protection available to victims of different forms of population transfer. Some of these problems would be overcome if States were to adopt the Population Transfer Declaration. Given the deleterious consequences of population transfer and the difficulties of enforcing the law on consent, return, and compensation, it might be questioned whether legal provisions still weigh too heavily in favor of States and entities seeking to transfer.

Ph. D., LL.M, Faculty of Legal Studies, South Asian University (SAARC)-New Delhi, Nafees Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights. Author teaches and writes on International Forced Migrations, Climate Change Refugees & Human Displacement Refugee, Policy, Asylum, Durable Solutions and Extradition Issus. He conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law & Forced Migration Studies. He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA nafeestarana[at]gmail.com,drnafeesahmad[at]sau.ac.in

Continue Reading
Comments

International Law

International Criminal Court and thousands of ignored complaints

Published

on

©ICC-CPI

The civil war in Donbass has been going on for more than seven years now. It broke out in 2014, following Kiev’s decision to launch a military operation against the local militia in Donbass, who did not accept the Maidan coup that had happened in February of that same year. More than 10,000 civilians were killed in the conflict.

Correspondents of the French newspaper L’Humanité Vadim Kamenka and Jean-Baptiste Malet, French historian Vincent Boulet, as well as a MEP and a member of the Spanish Communist Party Willie Meyer took part in the international conference “Topical Issues of Human Rights Violations in Donbass.”

Moderating the conference, organized by the Society of Friends of L’Humanité in Russia (the French leftist newspaper’s Russian office), was the head of the interregional public organization “For Democracy and Human Rights” Maxim Vilkov.

The conference was also attended by the deputy foreign minister of the Lugansk People’s Republic Anna Soroka, human rights activist Yelena Shishkina, director of the Society of Friends of L’Humanité Olesya Orlenko, and head of Donetsk National University’s department of political science Artyom Bobrovsky.

The participants discussed numerous cases of human rights violations by the Ukrainian security forces and paramilitary units in the course of the civil war in Donbass. The left-minded European participants paid special attention to the fact that none of the 6,000 complaints about the actions of Ukrainian security officials and nationalists had actually been taken up by the European Court of Human Rights (ECHR).

Small wonder too, since the atrocities committed in Donbass immediately bring to mind the Spanish Civil War of the 1930s when leftwing antifascists from across the world fought supporters of fascists and Nazis. Let’s not forget that even DW (foreign agent) admits that the share of neo-fascists in Kiev’s Azov regiment is very significant.

The participants called upon the ECHR to pay attention to the non-investigation of crimes committed in Donbass.

Human rights activists and public figures from Russia, France and the unrecognized republics of Donbass called on European international human rights organizations to pay attention to the failure to investigate crimes committed during the armed conflict in Ukraine. This is stated in the statement, which was sent to European international organizations after the conference.

The statement also calls attention to obstacles created to prevent citizens from filing applications to investigate crimes, as well as to attempts to ignore pertinent complaints from international bodies.

The latter, according to the authors of the statement, is especially important since “10,650 applications have so far been submitted to the ECHR concerning violations of citizens’ rights during the civil armed conflict in Ukraine. Of these, 8,000 come from Crimea and Donbass, including 7,000 from Donbass alone. Moreover, 6,000 are complaints made against Ukraine proper. However, during the past seven years, not a single complaint pertaining to the conflict in Donbass has been considered.”

Human rights activists called on the ECHR and the International Criminal Court (ICC) “to ensure that the crimes committed in Donbass are investigated in full compliance with the ECHR and ICC charter, as well as to bring pressure to bear on the political leadership of Ukraine to fulfill its obligations to protect the rights of its citizens.”

Continue Reading

International Law

Crime of Ecocide: Greening the International Criminal Law

Published

on

In June 2021, an Independent Expert Panel under the aegis of Stop Ecocide Foundation presented a newly-drafted definition for the crime of ‘ecocide.’ The Panel consisting of 12 international lawyers proposed that the Rome Statute of the International Criminal Court (ICC) should be amended to include ecocide as the fifth international crime along with the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The inclusion of the crime of ecocide in the Statute will entitle ICC to investigate, prosecute, and try individuals accused of causing grave harm to the environment.

The term ecocide comprises the Greek word ‘oikos,’ meaning house or environment, and ‘cide,’ meaning an act of killing. Premised upon the term ‘genocide,’ ecocide means the significant destruction of the natural environment by human actions. In 1970, it was first used by Arthur Galston, an American biologist, at the Conference on War and National Responsibility in Washington DC. The term was further quoted by the Swedish Prime Minister Olof Palme in his opening speech at the 1972 United Nations Conference on the Human Environment (UNCHE) in Stockholm. Since then, multiple efforts were made to include ecocide within international law. Interestingly, it was adopted as an additional crime in the early drafts of the Rome Statute; however, later, it was dropped due to the lack of an adequate definition. If succeeded this time, it will be a significant victory for the environment since none of the existing international criminal laws secures it as an end-in-itself.

Definition of the crime of ecocide

The Panel has defined the crime of ecocide as, “For the purpose of this Statute, “ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.

The definition comprises two thresholds that should be fulfilled to constitute a crime of ecocide. Firstly, there should exist a substantial likelihood that the ‘acts’ (including omissions) will cause severe and either widespread or long-term damage to the environment. In other words, along with the damages causing severe harm to the elements of the environment, such damages must have an impact on a wider geographical location or for an unreasonably longer duration.

It is appreciable that the Panel has widened the scope of the definition by incorporating spatial and temporal dimensions to its meaning. However, they have changed their position adopted in the previous legal instruments to employ a mix of conjunctive and disjunctive formulations in the definition. In addition to its severe nature, such harm could be either widespread or long-term to constitute a crime of ecocide. Thus, any severe and widespread activity, such as chopping down huge rainforests, could be attributed to ecocide. Similarly, any severe activity whose consequences prevail for a longer duration, for example, causing the extinction of a plant or animal species, could also amount to the crime of ecocide.

Instant reading of the first threshold indicates that the ecocide definition might include day-to-day human activities that contribute to greenhouse gas emissions and other environmental damages. It raises a question – Whether humans are environmental criminals? Though, it might be true that most human actions, directly or indirectly, are continuously degrading the ecosystem around us. However, the definition of ecocide is primarily concerned with the large polluters whose irresponsible activities at a massive level are a threat to the environment. Thus, to narrow down the ambit of the definition and identify criminal activities precisely, the Panel added a second threshold, that is, the ‘acts’ causing damage to the environment must be unlawful or wanton.

It means, only when the actions are either prohibited under national or international laws or indicate a reckless disregard for excessive destruction of the environment in achieving social and economic benefits will they amount to the crime of ecocide. The second threshold hints towards an anthropocentric approach of the definition and protects a range of human activities deemed necessary, desirable, and legitimate for human welfare. To determine the lawfulness of the acts, the actions should be seen with their potential social and economic values. The ecocide definition relies upon the principle of sustainable development to balance environmental destruction with human development and prohibits all destructive activities that outweigh their social and economic benefits. It also means that the definition places a ‘limited’ environmental harm outside the scope of the definition, which cannot be avoided for achieving social welfare that includes housing developments or establishing transport links.

The proposed definition is more concerned with the massive instances of environmental damages. It does not consider small ‘necessary’ ecological harms caused by day-to-day human activities. However, it is equally essential these negligible-looking destructive contributions of humans, made in their individual capacity, should not go unnoticed. These small contributions combined with each other also significantly impact the environment in the form of climate change, biodiversity loss, and other hazards. Thus, the reckless human lifestyle is a significant issue and needs to be regulated through some international code of conduct, if not as ecocide.

Undoubtedly, the proposed ecocide definition is a remarkable effort that should be appreciated for multiple reasons. First of all, the release of this definition indicates that the time has come to start penalizing environmental offenders and create deterrence so that such destructive activities can be minimized. It establishes the responsibility and accountability of big corporate houses and political leaders whose regular investments are causing substantial harm to the environment. Moreover, this definition founds its bases upon many core principles and concepts of public international law, international environmental law, international humanitarian law, and international criminal law. For instance, the principle of no transboundary harm, sustainable development, proportionality, and necessity are aptly referred to in the ecocide definition. Moreover, it also provides a sufficiently broad definition of the term ‘environment’ to primarily include any damage committed towards the earth, its biosphere, cryosphere, lithosphere, hydrosphere, atmosphere, and outer space.

Way Forward

Though the ecocide definition is a significant development, it still has to go a long way to be included in the list of international crimes. For this purpose, any of the 123 member states to the Rome Statute can officially submit the definition to the UN Secretary-General. The proposal has to be accepted for further consideration by the majority of the members through voting. Further, the text will be subjected to debates and deliberations and must be passed by a two-thirds majority of the members. Moreover, the member states need to ratify or accept the proposed text. Only after one year of such ratification or acceptance ICC may exercise its jurisdiction over the crimes of ecocide committed afterward. This entire process can take many years or even decades to get completed. It is also possible that the structure of the current definition might change in due course of its acceptance.

Today, it is unclear that whether this definition will succeed in amending the Rome Statute or not, but what can be said with certainty is that this definition will play a crucial role in building awareness and discourse around ecocide among the governments, corporate houses, professionals, and masses across the globe. With the pressing needs of humans and prevailing threats to the environment, it is the right time that the actions of the offenders should be regulated through the prism of international criminal law.

Continue Reading

International Law

Syrian Refugee Crisis: A Critical Analysis Concerning International Law

Published

on

Women and children at the the Turkey-Greece border at Pazarkule. © IOM/Uygar Emrah Özesen

The contemporary refugee law is primarily a product of the 20th century following the Second World War and the subsequent post-war refugee crises. The 1951 Refugee Convention on the Status of Refugees and its 1967 Additional Protocol are the noteworthy legal regimes. Although the definition of Convention 1951 continues to be the dominant definition, the regional treaties on human rights have continuously amended the definition in retort to changing circumstances and crises. The gap in the convention of 1951 is that it does not extensively define how the state parties must decide if a person shall compile with the definition of the refugee. The main objective of the modern refugee regime is that; at national and regional level, the individuals that flee their country due to threat of persecution must be protected under all circumstances.

The Civil War in Syria has lead many Syrians flee their own homeland where millions have fled and many have been internally displaced. Many of these existing refugee groups, if not most, live in desperation implying that refugees’ assistance and protection needs be addressed in host countries. States bear moral and ethical obligation towards ensuring the safety and protection of the individuals fleeing Syria. Western countries have also undermined and jeopardized their international commitment of protecting refugees’ human rights. The Regional Response Plan 2014 of United Nations High Commissioner for Refugees (UNHCR) is a $4.2 billion aid program for Syria. The plan mainly focuses on the financial assistance of the countries hosting Syrian refugees; where this assistance is certainly important; it does not seem to be an approach more equitable to share responsibility for refugees. The refugee convention and legal framework under International Law may be helpful in dealing with swift management of ongoing Syrian crisis. The study recommends for a larger responsibility to preserve refugees’ human rights and provide long term solutions through international law regimes with proper implementation mechanism.

REFUGEES

Under the International refugee law, Article 1(A)(2) of the 1951 Convention states that

“The term ‘refugee’ applies to any person who is outside the country of his nationality, owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, and is consequently unable or unwilling to avail himself of the protection of that country.”

As it was in the context of European Refugees escaping persecution prior to January 1, 1951, the concept had geographical and chronological constraints. Article (1)2 of the 1967 Protocol on Refugee Status abolished those temporal and geographical constraints.

PRINCIPLE OF NON-REFOULMENT AND FREEDOM OF MOVEMENT UNDER THE 1951 CONVENTION

Non-Refoulement on the whole mean non-return: it is not doable for individuals or foreign nationals to be returned by the host State to the country or place where they could be tormented, tortured or treated inhumanly and degradingly, in addition; where their life, liberty and freedom is threatened. The non-refoulement principle is the fundamental pillar of international law on refugees. It is an inherent component of 1951 Convention as regarded as a Customary International Law applied on every State irrespective of their ratification of the convention.

Article 26 of the Convention of 1951 states that the host States shall allow refugees to choose and move freely where they have taken refuge. Article 28 states that they must be provided with legal documents that would permit them to move freely anywhere wound their country of residence. The Freedom of movement is very important particularly in countries that host huge influx of refugees and have confined them in a particular area or refugee camps and have posed restrictions on their basic rights. The 1951 Convention also protects much other refugee rights for example educational rights, right of employment, justice and property rights.

The rights however are protected under the 1951 Convention and other International Treaties on the rights of refugees and more broadly the Human Rights but the refuges in their host countries are denied of their these basic rights and are often regarded as a national security risks to the state.

BACKGROUND OF THE SYRIAN REFUGEE CRISIS

Syria’s civil war has its origins in colonialism and the Iraqi War. The ethnic tensions and ongoing civil crisis date back to 2000 elections when Bashar Al Assad came in to power and the rising of Islamic State of Iraq and Syria (ISIS). Pro-democracy uprisings erupted in 2011 in response to persecution that were occurring in the Assad’s regime; the uprisings turned into a civil war. Syria by 2012 was entirely engulfed in that civil war and many had died by the end of 2015 by their own government. ISIS was part of the rebel forces, which created an atmosphere of terror. Civilians were subjected to transgressions; public executions and amputations became rampant. Religious minorities were also under great threat. In August 2013, a chemical warfare inflicted on its own people; as a result millions of Syrians were forced to flee their homeland and take hostage in the neighboring countries. Majority of them around 90% fled to Turkey, Jordan and Lebanon (neighboring countries) and around 10% made their way to Europe. While million fled the country, many thousands other are internally displaced and are still under great sufferings. According to a report of UN, approximately 70% of the Syrian population lacks basic necessities i.e., access to safe drinking water, extreme poverty and many children do not even go to school.

RECEIVING COUNTRIES AND THEIR COURSE OF ACTION

Despite their dire situation, Europe is hostile to Syrian refugees. They have put restrictions on their freedom of movement curtailing their rights granted by the international legal regimes and conventions. In Turkey, the refugees are often detained by the authorities and are forced to leave the country.  The Turkish authorities had flagrantly violated international laws; refugees are regarded as a security risk.  The ongoing conflict and instability in Syria have exacerbated the situation, forcing people to flee their homes and seek refuge in neighboring countries.

The existing literature includes number of records of International laws and the rights and obligations on refugees as well the host states but focus has been laid upon the crisis rather than the management of the crisis. In case of Syrian refugees, the existing literature highlights the historical context and ongoing situation of the crisis but has been unable to come to its solution with the help of International laws.

CONCLUSION

The 1951 Refugee Convention states that states should facilitate refugees’ naturalisation and assimilation to the greatest extent possible. States are obliged to provide legal documents to the refugees for the purpose of seeking asylum and obtaining the official status of refugees. The Refugee Convention seeks to require that the refugees must receive same public assistance as that of the nationals of the country and must be provided with financial assistance, property rights, and right of education and employment.  Both the 1951 Refugee Convention and the 1967 Additional Protocol are international treaties that mean they are binding on the signatories however the treatment of refugees and asylum seekers are considered to be a part of customary international law that is that the states that have not signed or ratified the conventions must also protect these rights of refugees. In the Syrian refugee crisis, many states have avoided their responsibilities and violated international laws relating to refugees by barring refugees from entering their respective territories and by claiming that the state has no jurisdiction over them by choosing the non-entrée approach keeping them apart of refugee law technically. However, in practice they do not meet the duties of the treaty.

To conclude, the essence of the research is that Burden Sharing is an as an intrinsic component of the refugee protection legal system framework and is critical and important in resolving the Syrian refugee crisis. Burden sharing is basically the distribution of responsibilities. In simple words it refers that specific arrangements must be made for the purpose of physical distribution of refugees. It is one of the main principles of International Refugee Regime. The documented origin of burden-sharing can be found in the preamble of the 1951 Convention. When addressing the Syrian refugee crisis in terms of international laws relating to refugees, it is pertinent to know that the existing legal frameworks in the countries hosting huge influx of the refugee crises do not incorporate many of the basic obligations of international law in relation to the rights and obligations of refugees, because none of these countries i.e., Turkey, Lebanon, or Jordan have ratified the 1951 Refugee Convention and the 1967 Additional Protocol. Syrian refugees have many rights that have been granted to them by the international conventions however, they are denied of their rights. This has made them vulnerable and entirely dependent on the financial aids and has increased illegal means of employment. The refugees are marginalized minorities who are facing troubles in integrating in the receiving countries.

Continue Reading

Publications

Latest

Trending