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In situations of conflict, the fact that it is prohibited to attack civilians is not sufficient to ensure their safety. Population movements are a natural consequence of military operations, either spontaneously or as the result of a decision by armed forces.
In times of peace, the principle of freedom of movement applies to the entire population of a country. This liberty of movement can become a right to flee, which enables individuals to escape from danger.
The Status of Displaced Persons
Population movements sometimes lead individuals outside their own country. In such cases, they are protected by international refugee law.
On the other hand, if they find refuge within their own country or are prevented from crossing borders because neighboring States have closed them, they are defined as “internally displaced persons” (IDPs) and remain under the authority of their own national authorities. If the country is at war, they are protected under humanitarian law as civilians. If the country is at peace, they are protected by international human rights norms. They may enjoy international assistance according to the thirty “Guiding Principles on Internal Displacement,” adopted in February 1998 by the Commission on Human rights and approved by the UN General Assembly at the 2005 World Summit.
As of today, there is no international organization with a specific mandate of protection for these populations. The mandate of the High Commissioner for Refugees was extended several times to allow the agency to be in charge of the assistance in IDP camps, but it was never given a mandate of legal protection. Besides, since 1997, the Office for the Coordination of Humanitarian Affairs of the UN (OCHA) is in charge of coordinating the assistance provided to these populations.
In times of conflict, humanitarian law sets forth various provisions to limit or control the displacement of civilian populations. In particular, it prohibits forced population displacement (transfers or deportations). This provision is at the heart of the system of protection for civilians.
At all times and under all circumstances, it is forbidden to force individuals to go back to a territory where they are in danger.
In Times of Peace or of Tension
International human rights conventions set forth various provisions relating to individuals’ freedom of movement. Authorities are allowed to suspend or restrict certain of these rights for different reasons ranging from issues of public order to measures of urban planning. However, it is important to note that, if the motives invoked concern public order, the authorities must justify these measures and offer guarantees to the individuals concerned (Art. 12 of ICCPR).
Furthermore, even when defending the public order, or at other times of unrest, certain provisions remain applicable: the peremptory human rights norms (those that may never be infringed on, no matter what the circumstance may be) must always be respected. If the violence reaches a certain level of intensity, even if it cannot be described as a conflict, the fundamental guarantees enforced by humanitarian law can also be invoked. There are also certain political practices that may result in, or make use of, population displacement. These include acts such as apartheid or ethnic cleansing, which are strictly forbidden under international law.
Finally, as mentioned earlier, liberty of movement includes freedom to flee one’s country and seek asylum in another. However, this right is limited by the fact that there is no reciprocal obligation on the part of States to offer asylum, beyond the principle of non-refoulement, which clarifies that, even if individuals enter or find themselves in a territory illegally, the State where they find themselves may not force them to return to a country where they fear for their safety.
Freedom of Movement and the Right to Flee
The Universal Declaration of Human Rights
- Everyone has the right to freedom of movement and residence within the borders of each State.
- Everyone has the right to leave any country, including his own, and to return to his country.
- Everyone has the right to seek and to enjoy in other countries asylum from persecution.
- This right may not be invoked in the case of prosecutions genuinely arising from nonpolitical crimes or from acts contrary to the purposes and principles of the United Nations.
The International Covenant on Civil and Political Rights
- Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
- Everyone shall be free to leave any country, including his own.
- The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order ( ordre public ), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
- No one shall be arbitrarily deprived of the right to enter his own country.
In Times of Conflict
Humanitarian law distinguishes between spontaneous and forced population movements. Thus, it refers to:
- “population movements” when describing spontaneous population movements that take place within or outside their country of origin;
- “displacement,” “transfer,” or “evacuation” when describing forced displacement of populations within a State in conflict;
- “deportation” when describing forced displacement of populations across a border.
Spontaneous Population Movements
A population may flee certain areas suddenly—for instance, because fighting is approaching. In such cases, the movement resembles an exodus, exile, or refugee flow, which may eventually involve crossing an international border.
To limit such displacement or to prevent the effects from being too harmful to the population, international humanitarian law establishes procedures of assistance and protection for the civilian population. It also forbids certain military practices that cause civilians to panic and flee:
- It is forbidden to make the civilian population the target of attacks (API Art. 51.2, APII Art. 13.2).
- Attacks or other “acts or threats of violence the primary purpose of which is to spread terror among the civilian population” are prohibited (API Art. 51.2, APII Art. 13.2).
- It is prohibited to deprive civilians of goods indispensable to their survival to “cause them to move away, or for any other motive” (API Art. 54.2, APII Art. 14).
- Civilians may not be used to shield military objectives from adverse attacks (GCIV Art. 28, API Art. 51.7, and APII Art. 13).
- It is forbidden to use population movements or to direct them toward specific destinations to attempt to protect or shield military objectives or military operations in general (GCIV Art. 28, API Art. 51.7).
- Individuals must not be expelled or returned ( refoulés ) to a territory where their life or freedom would be threatened (Art. 33 of 1951 Refugee Convention and many other international conventions).
Forced Population Displacement, Transfer, or Deportation
Sometimes, population movements are caused by force or other forms of constraints being used against civilians. In such cases, humanitarian law uses the terms forced displacement , forced transfer , evacuation , or deportation .
Deportation, Evacuation, and Forced Transfer
- 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.
- Population transfer describes a forced movement of population that takes place within the national territory.
- Evacuation describes the temporary transfer of populations or individuals, due to imperative military reasons or if the safety of the population requires it.
Humanitarian law prohibits any forced population displacement. There are legal exceptions to this principle, but they are strictly limited, and any violation of these provisions is a war crime.
The Statute of the International Criminal Court (ICC) was adopted in July 1998 and entered into force on 1 July 2002. Arts. 8.2.b.vii and 8.2.e.viii of the Rome Statute reaffirm that forced displacement is a war crime in international and non-international armed conflicts. When committed as part of a widespread or systematic attack directed against any civilian population, deportation or forcible transfer of population are grave breaches of the Geneva Conventions. They can also be qualified as crimes against humanity (Art. 7.1.d of the Rome Statute). The ICC has jurisdiction to prosecute individuals accused of such crimes, under certain conditions regulating the exercise of its jurisdiction.
International Armed Conflicts
In territories under military occupation, in the context of an international armed conflict, humanitarian law 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.
Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons do demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. . . .
The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand.
The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies. (GCIV Art. 49)
Any violation of these provisions is a war crime (GCIV Art. 147, API Art. 85.4.a).
Noninternational Armed Conflicts
Humanitarian law establishes that the following acts are prohibited in the context of internal conflicts:
- “The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand.
“Should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition” (APII Art. 17).
- In addition to the general “prohibition of forced movement of civilians” (APII Art. 17), humanitarian law establishes additional prohibitions to protect civilians from the effects of conflict: “the civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited” (APII Art. 13.2).
The Prohibition of Population Displacement under Customary IHL
The study on the rules of customary international humanitarian law published by the ICRC in 2005 (customary IHL study) prescribes that:
- Parties to an international armed conflict may not deport or forcibly transfer the civilian population of an occupied territory, in whole or in part, unless the security of the civilians involved or imperative military reasons so demand.
- Parties to a non-international armed conflict may not order the displacement of the civilian population, in whole or in part, for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand.
Rule 130 provides that in connection with an international armed conflict, States may not deport or transfer parts of their own civilian population into a territory they occupy.
Rule 131 prescribes that in case of displacement in the context of an international or a non-international armed conflict, all possible measures must be taken in order that the civilians concerned are received under satisfactory conditions of shelter, hygiene, health, safety, and nutrition and that members of the same family are not separated.
Rule 132 states that in international and non-international armed conflicts, displaced persons have a right to voluntary return in safety to their homes or places of habitual residence as soon as the reasons for their displacement cease to exist.
Rule 133 finally prescribes that the property rights of displaced persons must be respected at all times and all places. Population movements sometimes lead individuals outside their own country. In such cases, they are protected by international refugee law.
▸ Apartheid ▸ Asylum ▸ Civilians ▸ Deportation ▸ Internally displaced persons ▸ Ethnic cleansing ▸ Evacuation ▸ Internment ▸ Protected areas and zones ▸ Refoulement (forced return) and expulsion ▸ Refugees ▸ War
For Additional Information :Brauman, Rony. “Refugee Camps, Population Transfers, and NGOs.” In Hard Choices: Moral Dilemmas in Humanitarian Intervention , edited by Jonathan Moore, 177–94. Lanham, MD: Rowman & Littlefield, 1998.
“Displacement.” International Review of the Red Cross 875 (September 2009): 463–655.
Henckaerts, Jean-Marie, and Louise Doswald-Beck, eds. Customary International Law . Vol. 1, The Rules . Cambridge: Cambridge University Press, 2005, part 5, chap. 38.
Kalin, Walter. “Protection in International Human Rights Law.” In Internally Displaced Persons Symposium, 23–25 October 1995 , edited by Jean-Philippe Lavoyer, 15–25. Geneva: ICRC, 1996.
Lavoyer, Jean-Philippe. “Protection under International Humanitarian Law.” In Internally Displaced Persons Symposium, 23–25 October 1995 , edited by Jean-Philippe Lavoyer, 26–36. Geneva: ICRC, 1996.
OCHA. Guiding Principles on Internal Displacement . E/CN.4/1998/53/Add.2, 11 February 1998.
Terry, Fiona. Condemned to Repeat? The Paradox of Humanitarian Action . London: Cornell University Press, 2002.
UNHCR. The State of World’s Refugees: Fifty Years of Humanitarian Action . New York: Oxford University Press, 2000. Available at http://www.unhcr.ch/pubs/sowr2000//sowr2000toc.htm .
Willms, Jan. “Without Order, Anything Goes? The Prohibition of Forced Displacement in Non-international Armed Conflict.” International Review of the Red Cross 875 (September 2009): 547–65.