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Element:

5. The perpetrator deported or forcibly transferred, without grounds permitted under international law, one or more persons to another State or location, by expulsion or other coercive acts.

ICC

According to the Ruto, Kosgey and Sang Pre-Trial Chamber:

"[I]n order to establish that the crime of deportation or forcible transfer of population is consummated, the Prosecutor has to prove that one or more acts that the perpetrator has performed produced the effect to deport or forcibly transfer the victim. Absent such a link between the conduct and the resulting effect of forcing the victim to leave the area to another State or location, the Chamber may not establish that deportation or forcible transfer of population pursuant to article 7(2) (d) of the Statute has been committed."[1]

ICTY

As noted by ICTY Trial Chamber in The Prosecutor v. Radovan Karadžić:

"489. To establish deportation and forcible transfer, there must be a forced displacement of persons carried out by expulsion or other forms of coercion. The term "forced" may include physical force, as well as the threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression, or abuse of power, or the act of taking advantage of a coercive environment. The forced character of the displacement is determined by the absence of genuine choice by the victim in his or her displacement. As such, while persons may consent to, or even request, their removal, any consent or request to be displaced must be given voluntarily and as a result of the individual’s free will, assessed in light of the surrounding circumstances of the particular case.

490. Furthermore, the involvement of a non-governmental organisation in facilitating displacements does not in and of itself render lawful an otherwise unlawful transfer. An agreement among military commanders, political leaders, or other representatives of the parties in a conflict cannot make a displacement lawful either; it is the consent of the individual that determines whether a displacement is voluntary.

491. As stated above, an element of deportation and forcible transfer is that the victim must be "lawfully present" in the area from which the forced displacement takes place. In analysing this element of deportation and forcible transfer, the terms "lawfully present" should be given their common meaning and should not be equated to the legal concept of lawful residence." [2]

As stated in the Gotovina et al. Trial Chamber:

"Deportation and forcible transfer both entail the forcible displacement of persons from the area in which they are lawfully present, without grounds permitted under international law. The crime of deportation requires that the victims be displaced across a de jure state border, or, in certain circumstances, a de facto border. Forcible transfer involves displacement of persons within national boundaries."[3]

Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 992-993: 

"992. Deportation and forcible transfer both entail the forcible displacement of persons from the area in which they are lawfully present, without grounds permitted under international law. The crime of deportation requires that the victims be displaced across a de jure state border, or, in certain circumstances, a de facto border. Forcible transfer involves displacement of persons within national boundaries."

"993. Forcible displacement means that people are moved against their will or without a genuine choice. Fear of violence, duress, detention, psychological oppression, and other such circumstances may create an environment where there is no choice but to leave, thus amounting to the forcible displacement of people. Displacement of persons carried out pursuant to an agreement among political or military leaders, or under the auspices of the ICRC or another neutral organization, does not necessarily make it voluntary."

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, paras. 488-490:

"488. The elements of deportation and forcible transfer are substantially similar. Deportation and forcible transfer are defined as: (i) the forced displacement of one or more persons by expulsion or other forms of coercion, (ii) from an area in which they are lawfully present, (iii) without grounds permitted under international law. There is an important distinction between the two crimes; for deportation, the displacement of persons must be across a de jure border between two states or, in certain circumstances, a de facto border, and for forcible transfer, the removal may take place within national boundaries."

"489. To establish deportation and forcible transfer, there must be a forced displacement of persons carried out by expulsion or other forms of coercion. The term “forced” may include physical force, as well as the threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression, or abuse of power, or the act of taking advantage of a coercive environment. The forced character of the displacement is determined by the absence of genuine choice by the victim in his or her displacement. As such, while persons may consent to, or even request, their removal, any consent or request to be displaced must be given voluntarily and as a result of the individual’s free will, assessed in light of the surrounding circumstances of the particular case."

"490. Furthermore, the involvement of a non-governmental organisation in facilitating displacements does not in and of itself render lawful an otherwise unlawful transfer. An agreement among military commanders, political leaders, or other representatives of the parties in a conflict cannot make a displacement lawful either; it is the consent of the individual that determines whether a displacement is voluntary."

5.1. Deportation or forcible transfer.

In Krstić, the Trial Chamber held that:

"Deportation presumes transfer beyond State borders, whereas forcible transfer relates to displacements within a State."[4]

The Krnojelac Trial Chamber noted:

"Deportation requires the displacement of persons across a national border, to be distinguished from forcible transfer which may take place within national boundaries."[5]

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 48-49, 55-56: 

"48. The Chamber considers that the removal must result from an act or omission by the accused or by a person for whom he has criminal responsibility. The Prosecution must establish the nexus between this act or omission and the removal of the victims."

"49. Given that the prohibition on forcible removals seeks to protect the right of individuals to live in their communities and in their homes and not be deprived of their property, the Chamber holds that there is a “removal from an area” within the meaning of Article 5 of the Statute when the location to which the victims are sent is so remote that they are no longer able to effectively enjoy these rights."

"55. Deportation as a crime against humanity proscribed under Article 5(d) of the Statute assumes that a border has been crossed. Deportation occurs when a person is moved across a national border separating two States. In addition to this, the jurisprudence of the Tribunal also characterises as deportation the crossing of any “de facto” border. By “de facto border”, the Appeals Chamber had in mind forcible removal beyond occupied territory. Knowing whether this involves a “de facto border” within the meaning of customary international law, that is, a border whose crossing constitutes the crime of deportation, must be evaluated on a case-by-case basis."

"56. By contrast, the Appeals Chamber has found that “constantly changing front lines” are not included in the definition of a de facto border and that forcible transfer requiring persons to cross such constantly changing front lines cannot lead to a conviction for deportation."

Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 999, 1012: 

"999. The persons who were forcibly displaced mainly fled to non-Serb controlled parts of Croatia and, to a lesser extent, to other countries. Based on this, the Trial Chamber finds that they crossed a de facto or de jure border."


"1012. The persons who were forcibly displaced mainly fled to the non-Serb controlled parts of Croatia and, to a lesser extent, to other countries. Based on this, the Trial Chamber finds that they crossed a de facto or de jure border."

5.1.1. Evidence of deportation.

5.1.2. Evidence of forcible transfer.

The Stakić Trial Chamber stated that:

"The protected interests behind the prohibition of deportation are the right and expectation of individuals to be able to remain in their homes and communities without interference by an aggressor, whether from the same or another State. The Trial Chamber is therefore of the view that it is the actus reus of forcibly removing, essentially uprooting, individuals from the territory and the environment in which they have been lawfully present, in many cases for decades and generations, which is the rationale for imposing criminal responsibility and not the destination resulting from such a removal. The Trial Chamber believes that, should a definite destination requirement be specified, it would often be difficult to determine whether and when the crime occurred because the victims may have been transferred in several stages and therefore through several territories and across borders that may have changed every day. A fixed destination requirement might consequently strip the prohibition against deportation of its force.

The Trial Chamber emphasises that a judicial term must be understood and defined in the context it is used. Bearing in mind both the protected interests underlying the prohibition against deportation and the mandate of this Tribunal, it would make little or no sense to prohibit acts of deportation, in the words of the Security Council, "regardless of whether they are committed in an armed conflict, international or internal in character" and at the same time to limit the possibility of punishment to cases involving transfers across internationally recognised borders only.

"For the purposes of the present case, the Trial Chamber finds that Article 5(d) of the Statute must be read to encompass forced population displacements both across internationally recognised borders and de facto boundaries, such as constantly changing frontlines, which are not internationally recognised. The crime of deportation in this context is therefore to be defined as the forced displacement of persons by expulsion or other coercive acts for reasons not permitted under international law from an area in which they are lawfully present to an area under the control of another party."[6]

The Krstić Trial Judgement held that:

"The Bosnian Muslim women, children and elderly assembled at Potočari were forcibly transferred to Kladanj, an area in the territory of Bosnia-Herzegovina controlled by the ABiH, in order to eradicate all trace of Bosnian Muslims in the territory in which the Bosnian Serbs were looking to establish their own State. However, Bosnia-Herzegovina was the only State formally recognised by the international community at the time of the events. Since the Srebrenica civilians were displaced within the borders of Bosnia-Herzegovina, the forcible displacement may not be characterised as deportation in customary international law."[7]

The Krnojelac Trial Chamber stated that:

"Deportation requires the displacement of persons across a national border, to be distinguished from forcible transfer which may take place within national boundaries."[8]

As stated by the Trial Chamber in Stakić

"While such simultaneous use of both terms (deportation and forcible transfer) might create terminological confusion in the law, it is clear that the Statute of the International Criminal Court does not require proof of crossing an international border but only that the civilian population was displaced. [...] [C]ustomary international law has long penalised forced population displacements and the fact that the Statute of the International Criminal Court has accepted the two terms 'deportation' and 'forcible transfer' in one and the same category only strengthens the view that what has in the jurisprudence been considered two separate crimes is in reality one and the same crime."[9]

According to the Krnojelac Appeals Chamber:

"[A]cts of forcible displacement underlying the crime of persecution punishable under Article 5(h) of the Statute are not limited to displacements across a national border. [...] The forced character of displacement and the forced uprooting of the inhabitants of a territory entail the criminal responsibility of the perpetrator, not the destination to which these inhabitants are sent."[10]

The Stakić Trial Chamber stated that:

"[I]n the context of the Statute the question of whether a border was internationally recognised or merely de facto is immaterial."[11]

According to the Brđanin Trial Chamber:

"The Trial Chamber [...] maintains the cross-border element as a criterion in order to distinguish between 'deportation' and 'forcible transfer'."[12]

"The Trial Chamber [...] is satisfied that the actus reus of 'deportation' under Article 5(d) of the Statute consists of the forcible displacement of individuals across a State border from the area in which they are lawfully present without grounds permitted under international law, whereas such displacement within the boundaries of a State constitutes 'forcible transfer', punishable as 'other inhumane acts' pursuant to Article 5(i) of the Statute."[13]

 

Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, paras. 193, 195: 


"193. […] In the opinion of the majority, the Prosecutor failed to fulfil this obligation, simply limiting himself to general assertions which do not account for the specific evidence received by the judges. Under these circumstances, the majority is unable to dismiss the argument of the Defence - echoed by many of the witness testimonies 148 - which explains that the civilians fled the combat zones to find shelter in the localities occupied by members of the same ethnic or religious group; that the buses that were provided in this context were not part of operations to forcibly transfer the population, but rather acts of humanitarian assistance to non-combatants fleeing the zones where they no longer felt safe."

 

"148. VS-1022, T(E) 9524 to 9525, 9528 to 9530 (closed session); P696 under seal, para. 16."

 "195. The Chamber, in its majority, Judge Lattanzi dissenting, also notes other deficiencies in the Prosecution’s approach. It notes the specific weakness of the expert report of Ewa Tabeau. The report does not focus on the departures of Croats caused by the speech of the Accused on 6 May 1992 or, even more generally, by the abuses suffered. The expert simply presents a general overview of departures over the whole of 1992 without specifying clearly what had triggered them. The testimony of VS-061 on which the Prosecution relies to make its case has also revealed significant weaknesses. Witness VS-061 admitted more than once on cross examination the omissions he made and his biased version of the facts. Even when he was telling the truth, his testimony was not more useful to the Prosecution case. He recognises the discrepancies between the Croats who registered to obtain baptism or marriage certificates and the proven departures of those same individuals.151 He acknowledges that certain departures of Croats were the result of perfectly regular arrangements made with Serbian refugees who wanted to exchange their homes in Croatia for a house in Hrtkovci.152 […]"

 

"151. VS-061, T(E) 10081-10083 (private session).

 

152. VS-061, T(E) 10027."

 

 

 

5.1.3. Evidence of displacement applicable in both deportation and forcible transfer.

In the Dorđević Appeals Judgement, the Appeals Chamber held that:

"The Trial Chamber correctly observed that the crime of deportation can be established, in certain circumstances, by the displacement of individuals across a de facto state border. The Appeals Chamber in Stakić determined that "whether a particular de facto border is sufficient for the purposes of the crime of deportation should be examined on a case by case basis in light of customary international law"." […]

"The Appeals Chamber has found no support in customary international law for the proposition that a de facto border can be found within the confines of a sovereign state even where a certain degree of autonomy is exercised by portions of that state." [14]

5.2. Without grounds permitted under international law for deportation or forcible transfer.

As noted by ICTY Trial Chamber in The Prosecutor v. Radovan Karadžić:

"492. International law recognises certain grounds permitting forced removals, such as the evacuation of: (i) a civilian population for its security or for imperative military reasons; and (ii) prisoners of war out of combat zones and into internment facilities, subject to the conditions set out therein. If an act of forced removal is carried out on such bases, that act cannot constitute the actus reus of deportation or forcible transfer. Evacuation is an exceptional measure which is permitted to protect the civilian population. However, it is unlawful to use evacuation measures based on imperative military reasons as a pretext to remove the civilian population and seize control over a desired territory. Although forced removal for humanitarian reasons is justifiable in certain situations, it is not justified where the humanitarian crisis that caused the displacement is itself the result of the perpetrator’s own unlawful activity." [15]

In the The Prosecutor v. Jovica Stanišić and Franko Simatović Judgement, the Trial Chamber held that:

"994. International humanitarian law recognizes limited circumstances under which the displacement of civilians during armed conflict is allowed, namely if it is carried out for the security of the persons involved, or for imperative military reasons. In such cases the displacement is temporary and must be carried out in such a manner as to ensure that displaced persons are returned to their homes as soon as the situation allows. Whether a forcible displacement of people is lawful is, however, more appropriately dealt with when considering the general elements of crimes against humanity." [31]

In the Dorđević Appeals Judgement, the Appeals Chamber held that:

"The Appeals Chamber notes that the Prosecution is required to prove the elements of the crime beyond reasonable doubt, which includes proving that the displacement was carried out on grounds not permitted under IHL. However, it is not a legal requirement to prove that the attack causing the displacement was unlawful or that the KLA was not present in the area. Although involuntary displacements may be justified under IHL, such circumstances are limited."[16]

As noted by the Trial Chamber in Blaškić

"The deportation or forcible transfer of civilians means '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'."[17]

The Gotovina et al. Trial Chamber recalled that:

"International humanitarian law recognizes limited circumstances under which the displacement of civilians during armed conflict is allowed, namely if it is carried out for the security of the persons involved, or for imperative military reasons. In such cases the displacement is temporary and must be carried out in such a manner as to ensure that displaced persons are returned to their homes as soon as the situation allows."[18]

In the Krstić case, the Trial Chamber elaborated:

"Article 49 of the Fourth Geneva Convention and Article 17 of Protocol II allow total or partial evacuation of the population 'if the security of the population or imperative military reasons so demand'. Article 49 however specifies that 'persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased'.

As a preliminary matter, this condition is not satisfied in the present case. The Srebrenica citizens who had gathered in Poto-ari were not returned to their homes as soon as hostilities in the area in question had ceased. In fact, active hostilities in Srebrenica town itself and to the south of the enclave had already ceased by the time people were bussed out of Poto~ari. Security of the civilian population can thus not be presented as the reason justifying the transfer.

In addition to the security of the population, the Geneva Convention also allows for evacuations based on 'imperative military reasons'. [...]

"In this case no military threat was present following the taking of Srebrenica. The atmosphere of terror in which the evacuation was conducted proves, conversely, that the transfer was carried out in furtherance of a well organised policy whose purpose was to expel the Bosnian Muslim population from the enclave. The evacuation was itself the goal and neither the protection of the civilians nor imperative military necessity justified the action."[19]

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 52-54: 

"52. Subject to very strict requirements, however, international law does provide an exception for the forcible removal of a person. Thus neither total nor partial evacuation is prohibited “if the security of the population or imperative military reasons so demand.” Article 49 of the Fourth Geneva Convention specifies, however, that “[p]ersons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased”. Moreover, all possible measures must be taken in order that the evacuated population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition."

"53. In addition, the Appeals Chamber accepts forcible removal of the population for humanitarian reasons, in certain situations. However, this exception does not apply if the humanitarian crisis that gave rise to the removal of the population is the result of the accused’s unlawful activity."

"54. The fact that international organizations such as the ICRC or UNPROFOR participated in organising the forced removals of the population does not alter the unlawful nature of the said removal. Furthermore, it is not because the displacement of an individual is carried out pursuant to an agreement reached between political or military leaders, or under the auspices of the ICRC or any other organization, that it becomes permissible. Put differently, signing such an agreement does not make forced removal lawful."

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, para. 492:

"492. International law recognises certain grounds permitting forced removals, such as the evacuation of: (i) a civilian population for its security or for imperative military reasons; and (ii) prisoners of war out of combat zones and into internment facilities, subject to the conditions set out therein. If an act of forced removal is carried out on such bases, that act cannot constitute the actus reus of deportation or forcible transfer. Evacuation is an exceptional measure which is permitted to protect the civilian population. However, it is unlawful to use evacuation measures based on imperative military reasons as a pretext to remove the civilian population and seize control over a desired territory. Although forced removal for humanitarian reasons is justifiable in certain situations, it is not justified where the humanitarian crisis that caused the displacement is itself the result of the perpetrator’s own unlawful activity."

5.2.1. Lack of reasons justifying displacement under international law.

The Muthauara, Kenyatta and Ali Pre-Trial Chamber stated:

"[T]he lawful presence of the persons displaced as a result of the Mungiki attack in Nakuru and Naivasha is [...] not brought into question by any item of evidence available to the Chamber. Likewise, the Chamber finds that the established facts do not reveal any grounds permitting the displacement under international law."[20]

5.2.2. Character of actual displacement events unacceptable under international law.

5.3. Deportation or forcible transfer by expulsion or other coercive acts.

In the Dorđević Appeals Judgement, the Appeals Chamber held that:

"The Appeals Chamber recalls that forced displacement requires, inter alia, that the victims had no genuine choice, which is not "limited to physical force but includes the threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment". While fear of violence or use of force and other such circumstances may create an environment where there is no choice but to leave, thus leading to forced displacement the determination as to whether a transferred person had a genuine choice is one to be made within the context of the particular case being considered."[21]

According to the Trial Chamber in Stakić

"The definition of deportation requires 'forced' or 'forcible' displacement. Thus, transfers based on an individual's free will to leave are lawful. In the jurisprudence, the requirement of 'forced displacement' has been interpreted to refer not only to acts of physical violence but also to other forms of coercion."[22]

For the Furundžija Trial Chamber:

"[R]ape is a forcible act: this means that the act is 'accomplished by force or threats of force against the victim or a third person, such threats being express or implied and must place the victim in reasonable fear that he, she or a third person will be subjected to violence, detention, duress or psychological oppression'."[23]

The Naletilić and Martinović Trial Chamber also noted that:

"The determination as to whether a transferred person had a 'real choice' has to be made in the context of all relevant circumstances on a case by case basis. Forcible transfer is the movement of individuals under duress from where they reside to a place that is not of their choosing."[24]

According to the Trial Chamber in Krnojelac:

"Deportation is illegal only where it is forced. 'Forced' is not to be interpreted in a restrictive manner, such as being limited to physical force. It may include the 'threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment'. The essential element is that the displacement be involuntary in nature, where the relevant persons had no real choice. Forced displacement is only illegal when it occurs without grounds permitted by international law."[25]

As to the Appeals Chamber in Krnojelac:

"[I]t is the absence of genuine choice that makes displacement unlawful. Similarly, it is impossible to infer genuine choice from the fact that consent was expressed, given that the circumstances may deprive the consent of any value. Consequently, when analyzing the evidence concerning these general expressions of consent, it is necessary to put it into context and to take into account the situation and atmosphere that prevailed in the KP Dom, the illegal detention, the threats, the use of force and other forms of coercion, the fear of violence and the detainees' vulnerability."[26]

The Krstić Judgement found that:

"[D]espite the attempts by the VRS to make it look like a voluntary movement, the Bosnian Muslims of Srebrenica were not exercising a genuine choice to go, but reacted reflexively to a certainty that their survival depended on their flight."[27]

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 50-51:

"50. The Tribunal’s case-law does not go so far as to require that forcible removal occur “by force” in the strict sense of the word. Indeed, the mere threat of resorting to force or physical or mental coercion may be enough, if the targeted population facing this coercive climate or these threats, has no other choice but to leave its territory. It is the absence of genuine choice that renders removal unlawful. To determine whether the victims of a forcible removal faced a genuine choice, the circumstances surrounding their removal must be assessed."

"51. Accordingly, consent by the victim does not necessarily render forcible removal lawful, inasmuch as the circumstances surrounding that consent may deprive it of any potential value. The consent of the victim must be assessed in context. Generally speaking, detaining a person in a climate of terror and violence obviates any and all value arising from the consent."

 

Prosecutor v. Vlastimir Dordevic, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, para. 727:

 

"727. The Appeals Chamber recalls that forced displacement requires, inter alia, that the victims had no genuine choice,2190 which is not “limited to physical force but includes the threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment”.2191 While fear of violence or use of force and other such circumstances may create an environment where there is no choice but to leave, thus leading to forced displacement, the determination as to whether a transferred person had a genuine choice is one to be made within the context of the particular case being considered. 2192"

5.3.1. Deportation or forcible transfer using physical force.

5.3.2. Deportation or forcible transfer by use of coercion.

5.3.3. Deportation or forcible transfer using threat of force.

The Muthaura, Kenyatta and Ali ICC Pre-Trial Chamber stated that:

"[T]he evidence establishes that the destruction of homes in residential areas, the brutality of the killings and injuries, the rape of perceived ODM supporters, and the public announcements to the effect that "all Luos must leave", amounted to coercion, which caused the attacked residents of Nakuru and Naivasha to leave their homes and seek shelter in IDP camps."[28]

Footnotes:

[4] ICTY, Prosecutor v. Krstić, ''Judgement'', IT-98-33-T, 2 August 2001, para. 521.

[7] ICTY, Prosecutor v. Krstić, ''Judgement'', IT-98-33-T, 2 August 2001, para. 531.

[19] ICTY, Prosecutor v. Krstić, ''Judgement'', IT-98-33-T, 2 August 2001, para. 524-527.

[23] ICTY, Prosecutor v. Furundžija, "Judgement", IT-95-17/1-T, 10 December 1998, para. 174.

[27] ICTY, Prosecutor v. Krstić, ''Judgement'', IT-98-33-T, 2 August 2001, para. 530.

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