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2019 AJICJ 56 (2019)
Delimiting Deportation, Unlawful Transfer, Forcible Transfer and Forcible Displacement in International Criminal Law: A Jurisprudential History

handle is hein.journals/ajicj2019 and id is 56 raw text is: Delimiting Deportation, Unlawful Transfer, Forcible Transfer and Forcible Displacement in International Criminal Law A Jurisprudential History* Ken Roberts & James G. Stewart** Abstract The forced displacement of civilian populations is an issue of significant global con- cern and a subject of extensive legal debate. In international criminal law, forced displacement is criminalized by a complex network of distinct but overlapping offences. These include the Crimes Against Humanity of deportation, forcible transfer, persecution and other inhumane acts, and the grave breach of the Geneva Conventions of 'unlawful deportation or transfer'. International courts and tribu- nals have been inconsistent in the adoption of these crimes in their statues and in their subsequent interpretation, making it all the more difficult to distinguish between them. The jurisprudential history of these crimes is lengthy and not with- out controversy, highlighted by inconsistent judicial approaches. In this article, we offer a critical jurisprudential history of these displacement crimes in international criminal law. In particular, we focus on the case law emanating from the International Criminal Tribunal for the former Yugoslavia, a court that comprehensively addressed crimes associated with ethnic cleansing, a characteristic feature of that conflict, with the result that displacement was a central focus of that court. We set out our jurisprudential history in chronological order, beginning with the earliest inceptions of displacement crimes at the ICTY and then tracing their development toward the establishment of a consensus. Our hope is that the article sheds light on the development of these offences, informs future debate, and acts as a useful tem- plate for those seeking to understand how these crimes may have a role to play in future international jurisprudence. Keywords: International criminal law, theory of international law, crimes against humanity, deportation, unlawful or forcible transfer. * The views expressed herein are those of the authors and do not necessarily reflect the views of the United Nations. Our kind thanks to Saif Ansari, who provided extensive and invaluable research assistance on this project. Thanks also to Lindsey Israel for all her very considerable help. ** Ken Roberts is Senior Legal Officer, International, Impartial and Independent Mechanism (Syria). James G. Stewart is Associate Professor, Allard School of Law, University of British Columbia. 56 African Journal of International Criminal Justice 2019 (5) 1 doi: 10.5553/AJ/2352068X2019005001003

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