The Crime of Displacement: Holding Leaders Accountable

The trial of Charles Taylor reflects a notable pattern in the prosecution of war-time atrocities linked to large-scale displacement, which has been explored in a recent study on displacement and transitional justice undertaken by the Brookings-LSE Project on Internal Displacement in cooperation with the International Center for Transitional Justice. The pattern is this: international law has long prohibited arbitrary displacement as a war crime and a crime against humanity, and the 1998 Rome Statute of the International Criminal Court (ICC) has served as something of a watershed for the development of an increasingly detailed international legal framework for trying displacement as a serious crime in its own right. Yet many international courts and domestic legal systems have concentrated only on the violations such as murder and rape that prompt displacement, instead of also addressing the abuse of forced migration itself. Of course, prosecuting the crimes that push families from their homes is an essential element of accountability for forced migration; in this sense the Taylor verdict is a dramatic step forward in the push for responsibility for displacement at the highest ranks. However, particularly when displacement is integral to the conduct of a conflict, it should not be treated simply as an unfortunate side-effect of other violations. Rather, where possible, displacement merits being concertedly investigated and prosecuted as a crime.[2]

Looking beyond the Taylor trial, it becomes clear that this pattern of treating displacement as a "'natural' consequence of other crimes" that are properly at the heart of international criminal justice efforts is gradually being challenged through cases prosecuted by Cambodia's war crimes tribunal and under domestic laws in Colombia. Some of the most important challenges have come in the form of other high-level cases involving current and former heads of state. For example, the International Criminal Tribunal for the Former Yugoslavia (ICTY), which released several precedent-setting decisions related to displacement, charged former Serbian President Slobodan Milosevic with the deportation and forcible transfer of civilian populations.[3] Were it not for Milosevic's death in 2006 before the end of his trial, he could well have become the first head of state convicted of displacement as a war crime and a crime against humanity under international law.

This ignominious distinction may eventually fall to Sudanese President Omar al-Bashir, who has been indicted by the International Criminal Court for genocide, war crimes and five counts of crimes against humanity, including the widespread forcible transfer of civilians in Darfur. According to the Rome Statute of the International Criminal Court, "deportation or forcible transfer of population" constitutes a crime against humanity when it is "committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack," and entails "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."[4] Displacement has of course been a central feature of the conflict in Darfur, with some two million people uprooted since 2003, and ongoing human rights violations undercutting the security of refugees and IDPs, preventing them from accessing safe shelter or durable solutions to their displacement.[5] It is therefore appropriate for the ICC to challenge the tradition of impunity for arbitrary displacement as a serious crime under international law. However, Bashir's indictment illustrates the risks that accompany efforts to hold heads of state criminally responsible for displacement and other serious crimes—arguably, the indictment has compromised humanitarian access and attempts to broker peace in Darfur, and has had no demonstrable deterrent effect on abuses against South Sudanese civilians. These risks would be present whether or not the indictment included charges of deportation and forcible transfer, but adding charges of displacement can complicate cases as methodologies for investigating displacement are still in the early stages of development.

In addition to its efforts in Sudan, the ICC has charged four Kenyan political and media leaders with crimes against humanity including the deportation or forcible transfer of populations in connection with the post-election violence that forced some 600,000 people to flee their homes in 2007-2008. Two of these defendants, Uhuru Kenyatta and William Ruto, are expected to stand for election in the country's 2013 presidential elections. As these trials unfold, the election nears and tensions mount, advocates—and critics—of international criminal trials will be watching closely to see what effect the ICC process may have on the vote and any tensions that may accompany it. After all, beyond holding leaders responsible for past violations, the goal in combating impunity for displacement as a violation of international law must be to prevent more uprooting in the future. Making the most of this potential will require concerted and sustained efforts to bring leaders to account for displacement as a serious crime.

[1] See para. 98, Judgment Summary, Prosecutor v. Charles Ghankay Taylor, SCSL-03-1-T, 26 April 2012. Under its Statute, the Special Court for Sierra Leone has the "power to prosecute…deportation" and "other inhumane acts," provisions that can be used to uphold criminal responsibility for the creation of displacement crises. See the Statute of the Special Court for Sierra Leone, Article 2(d).

[2] Federico Andreu-Guzmán (2012) "Criminal Justice and Forced Displacement," in Roger Duthie (ed.) Transitional Justice and Displacement. New York: SSRC.

[3] See Joanna Korner, "Criminal Justice and Forced Displacement in the Former Yugoslavia," paper prepared for Brookings-ICTJ project on displacement and transitional justice.

[4] See Article 7(2)(d). The Rome Statute also allows for the prosecution of displacement as a war crime. See Articles 8(2)(vii) and (viii).

[5] See http://www.ohchr.org/EN/NewsEvents/Pages/HRviolationsentrenchdisplacementinDarfur.aspx.