Guerrilla wars frequently involve the involuntary transfer of the local population, either by guerrilla forces themselves, or as a counter-insurgency tactic. Examples include the Algerian war of independence of the 1950s, the Vietnam war and, more recently, the conflicts in Burundi, the former Yugoslavia and Sierra Leone. International humanitarian law, the laws of war and, to a lesser extent, human-rights law all prohibit forced population transfers as a means of warfare. But the pertinent legal norms are far from perfect due to the blurred distinction between deportation and evacuation. There is no source of international law clearly distinguishing between the two, notwithstanding the fact that deportation is a crime, whereas evacuation is a legitimate form of humanitarian action.
This leads to two, related problems. First, a deporting authority can be tempted to disguise the criminal aspects of its policy by presenting a deportation as an evacuation. Once such a policy is implemented, it is difficult to disprove its legality, given the vague and even contradictory legal standards involved. Second, a humanitarian organisation or peacekeeping force can be confronted with forced population transfers, as in ethnic cleansing, for example. If the humanitarian organisation or peacekeeping force assists the population in travelling to safety, it may be accused of complicity in deportation. As outgoing High Commissioner for Refugees Sadako Ogata puts it: ‘In the context of a conflict which has as its very objective the displacement of people we find ourselves confronted with a major dilemma. To what extent do we persuade people to remain where they are, when that could well jeopardise their lives and liberties? On the other hand, if we help them to move, do we not become an accomplice to ethnic cleansing?’.
The origins of the confusion concerning evacuation and deportation lie in several international documents. The first two paragraphs of Article 49 of the Fourth Geneva Convention (1949) read as follows:
‘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, are prohibited, 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 so 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. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased’.
At first glance, the conclusion to be drawn from Article 49 is straightforward: in order to be legal, a population transfer either has to be carried out with the voluntary cooperation of the evacuees; or, if it is carried out without such cooperation, there must be compelling reasons of safety, or imperative military reasons. The first of these criteria is not a problem. Evacuation is a major instrument of humanitarian protection. Central to the practice of humanitarian action is the well-being of the victims of conflict, and there appears to be no doubt that evacuation is, provided certain standards are met, a legitimate course of action.
The second criterion the military imperative or military necessity is more problematic. Military necessity refers to the necessity of the warring parties to acquire victory. Given this, Article 49, on this point at least, codifies a circular reasoning: a forced transfer of the population is prohibited regardless of its motive, unless that motive is the necessity of subduing the enemy. While paragraph 1 attempts to unequivocally prohibit involuntary population transfers for reasons related to the conflict, paragraph 2 allows such transfers for imperative military reasons.
The confusion is not limited to this provision alone. Article 17 of the second Additional Protocol to the Geneva Conventions (1977), which prohibits the forced movement of civilians, reads:
‘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’.
This provision is even more confused than the previous one and for more than one reason. While the first half of the sentence is derived from paragraph 1 of Article 49, the second half is derived from paragraph 2, thus implicitly collapsing the fundamental distinction between evacuation and deportation. In addition, Article 17 avoids using the words evacuation and deportation terms which could have alerted the reader to the fact that two different concepts are used in the same sentence.
Although deportation was prohibited by the Charter of the International Military Tribunal at Nuremberg, international tribunals including Nuremberg have used the words evacuation and deportation interchangeably, as if they are synonymous. One of the most recent instances of this is in the indictments against Ratko Mladic and Radovan Karadzic before the International Criminal Tribunal for the former Yugoslavia in July 1995. The indictment reads: These deportations were not conducted as evacuations for safety, military necessity or for any other lawful purpose. The following November, in the indictment against the same suspects concerning their actions against the population of Srebrenica, the Prosecutor wrote of the evacuation process of Bosnian Muslim refugees. The indictment against Radislav Krstic of October 1998 uses the concepts of evacuation and deportation interchangeably.
To make matters worse, Article 147 of the Fourth Geneva Convention defines as a grave breach of the Convention the unlawful deportation or transfer of the population. Using the adjective unlawful as a basis, it has been argued that the prohibition on deportation effectively differentiates between lawful and unlawful deportations outlawing the kind seen during the Holocaust, but permitting and even authorising deportations carried out by the occupying military authorities in the course of maintaining public order. This argument has been made specifically in defence of the practice of the military authorities in the West Bank and Gaza Strip.
As far as humanitarian organisations are concerned, the dilemma described by Ogata remains emotive and largely unresolved. However, the case of Banja Luka in 199394 offers an interesting way out. Before the Yugoslav civil war, Banja Luka was Bosnia-Herzegovinas second city, with a majority non-Serb population. When the war broke out, the non-Serb population was, by means of low-intensity violence and in the context of ethnic cleansing, compelled to leave the city, or remain at their peril. Faced with the question of whether to help non-Serbs to leave the city, UNHCR and ICRC were at first reluctant to offer transport for fear of being accused of complicity. However, as the violence intensified, both organisations moderated their policies and drafted the following criteria:
For evacuation outside of Bosnia:
- persons whose lives were in danger;
- civilian prisoners;
- the wounded;
- family reunification cases;
- persons who had fled the fighting and were in enemy territory.
For evacuation within Bosnia:
- civilian prisoners;
- persons subjected to forced labour;
- family reunification cases;
- civilians who have fled the fighting.
A fundamental criterion is informed consent. This criterion first defined by a military tribunal in the aftermath of the Second World War is well-known in the context of medical ethics and suggests that the evacuating humanitarian organisation discusses the advantages, disadvantages and risks of the proposed evacuation with representatives of the would-be evacuees. By respecting this principle, the right to self-determination of the individuals concerned is, however limited, restored, thus helping them to maintain at least a minimum of dignity. The final decision on whether or not to be transferred thus rests with the individual concerned not with the warlord pursuing a policy of ethnic cleansing. To sum up, there is a loophole in the law, and one which is a cause of concern for war victims, aid agencies and peacekeepers. A limited number of criteria and benchmarks have been drafted in order to grant humanitarian organisations a measure of moral and legal certainty which, although useful, need further elaboration.
Ted A. van Baarda is director of the Humanitarian Law Consultancy, The Hague, and a lecturer on humanitarian law and military ethics. He can be reached at email@example.com. A longer version of this article will be published in the Dutch law journal Militair Rechtelijk Tijdschrift; an English translation is being prepared.
The International Committee of the Red Cross website provides a full listing of the 1949 Geneva Conventions and 1977 Protocols, including the article outlines, full-text versions and commentaries; see <www.icrc.org/eng/party_gc>
The International Journal of Refugee Law, The Journal of Refugee Studies and Refugee Studies Quarterly, all published by OUP <www3.oup. co.uk>
Forced Migration Review, University of Oxford Refugee Studies Centre <www.fmreview.org>
The University of Michigan Law School Refugee Caselaw Site <www.refugeecaselaw.org>
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status <www.unhcr.ch/refworld/legal/handbook/handeng/hbtoc.htm>
The EC Dublin Convention on asylum policy within the European Union <europa.eu.int/scadplus/leg/en/lvb/l33048.htm>