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Deportation is a phenomenon that affects the population of a territory under occupation or conquest. Deportation refers to the forced transfer of civilians (or other persons protected by the Geneva Conventions) from the territory where they reside to the territory of the occupying power or to any other territory, whether occupied or not. It is different from “population transfer,” which describes a forced movement of population that takes place within the national territory. ▸ Population displacement
Individual or mass deportations are prohibited, regardless of their motive, by the Fourth Geneva Convention (Art. 49). The occupying power is also prohibited from deporting or transferring part of its own civilian population into the territory it occupies (GCIV Art. 49). Such acts can be prosecuted according to the universal jurisdiction principle (GCIV Art. 147). They can also be constitutive elements of crimes such as ethnic cleansing and genocide.
The Statute of the International Criminal Court, adopted in July 1998, defines deportation and transfer both as war crimes and crimes against humanity (Arts. 8.2.a.vii, 8.2.b.viii, and 7.1.d of ICC Statute). The transfer by the occupying power of its own civilian population into occupied territory is also a war crime (Art. 8.2.b.viii). The ICC may judge authors of such crimes under certain conditions.
Article 49 of the Fourth Geneva Convention tolerates the total or partial evacuation of the civilian population from a given area, under very specific and restrictive conditions, such as cases in which the security of the population or imperative military reasons require it. Such an evacuation can only be temporary, and the population must be allowed to return as soon as possible. ▸ Evacuation
In such cases:
- the occupying power may only evacuate individuals to another area within the bounds of the occupied territory;
- it must inform the protecting power that is responsible for this population of any transfer and evacuation as soon as it has taken place;
- the transfer may not take place toward an area exposed to the dangers of war; and
- the occupying power undertaking such transfer or evacuation must ensure that proper accommodation is provided to receive the protected persons; that the transportation meets satisfactory conditions of hygiene, health, safety, and nutrition; and that family members are not separated from each other.
Deportation may also occur in the broader context of population displacement.
In the Stakić Case (22 March 2006, para. 278), the ICTY Appeals Chamber held “that the actus reus (material element) of deportation is the forced displacement of persons by expulsion or other forms of coercion from the area in which they are lawfully present, across a de jure state border or, in certain circumstances, a de facto border, without grounds permitted under international law” and that the mens rea (moral element) of that crime does not require an intention to displace the persons across the border on a permanent basis. This was confirmed by the ICTY Trial Chamber in the Krajišnik Case (27 September 2006, para. 723). In the latter case, the Trial Chamber further found that international humanitarian law recognizes only 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 (para. 725). Furthermore, the Chamber held that deportation does not require “that a minimum number of individuals must have been forcibly transferred for the perpetrator to incur criminal responsibility” (para. 309).
In the Stakić Case (22 March 2006, para. 317), the ICTY Appeals Chamber held that “acts of forcible transfer may be sufficiently serious as to amount to ‘other inhumane acts,’” that is to say, a crime against humanity. In the Krajišnik Case (17 March 2009, paras. 330, 331), the ICTY Appeals Chamber held that in order to prove that a forcible transfer amounts to “other inhumane acts” under Article 5.i of the Statute, it must be shown that the forcible transfer in question is of a similar seriousness to other enumerated crimes against humanity.