B Explanatory memorandum
by Mr Vareikis, rapporteur
1 Introduction
1. On 7 July 2009, the Parliamentary Assembly decided
to refer to the Committee on Legal Affairs and Human Rights, for
report, the motion for a resolution “Population transfer as a human
rights violation” (
Doc. 11982) of 30 June 2009. At its meeting on 16 November 2009,
the committee appointed Mr Renato Farina (Italy, EPP/CD) as its
rapporteur. Following Mr Farina’s departure from the Assembly, the
Committee appointed me as its rapporteur on 25 January 2011.
2. Population transfer is a complex phenomenon, the policy and
practice of which has been largely absent from the human rights
debate.
3. Enforced population transfers have not only occurred throughout
history, they are also a contemporary phenomenon, and the consequences
of recent acts of this kind are still felt very acutely in such
regions as the Western Balkans, the Caucasus and Cyprus.
4. I share the deep concern of the signatories of the motion
for a resolution about the past and still continuing practice of
such human rights violations conducted both by states with which
European countries have close economic and other relations and,
even more regrettably, population transfers that have been conducted
in Europe. A number of cases of population transfers which have
occurred in Europe and elsewhere make it necessary for the Assembly
to take a clear stand on this human rights issue and to unequivocally condemn
such practices.
5. The Assembly has so far only rarely dealt with the issue of
population transfer as such, and has never as yet dealt with the
legal and human rights aspects of this practice.
6. On 5 October 2006, the Assembly adopted
Resolution 1522 (2006) on the establishment of a European remembrance centre
for victims of forced population movements and ethnic cleansing.
It called for the establishment of a centre to commemorate victims
of deportations, mass expulsions and population transfers to be
created under the auspices of the Council of Europe to raise public
awareness and promote research on mass deportations past, present
and future in the Council of Europe’s member states. In the explanatory memorandum,
the rapporteur, Mr Mats Einarsson, cited the expulsion of 16 million
Germans in the aftermath of the Second World War, 2 million of whom
died during the process, as well as forced transfers of Jews, Roma, Poles,
Finns, Hungarians, Italians, Slovaks, Lithuanians, Latvians, Ukrainians,
Byelorussians, Serbs, Croats and Estonians.
7. The Centre called for in the resolution never saw the light
of day, as the Assembly’s idea was not pursued.
8. The United Nations have in the past dealt with the issue of
population transfer. The former Commission on Human Rights and then
the Economic and Social Council (ECOSOC), in 1998, adopted a draft
declaration on population transfer
NoteNote (hereafter
“population transfer declaration”). The declaration had been preceded
by a report, issued in 1997 by special rapporteur Mr Al-Khasawneh
on “Human rights and population transfer”.
NoteNote This report
was broad in scope and dealt with the phenomenon of population transfer
in general, human rights, economic, social and cultural rights,
territorial changes, state succession and nationality, military
necessity and remedies, all on a worldwide level.
9. I will attempt to take stock of the current legal situation
concerning population transfers, by first clarifying the terminology
and secondly pointing to a number of examples of population transfers
before, thirdly, turning to legal and human rights aspects of this
practice.
2 Terminology and forms
of population transfer
10. There is no international legally binding definition
of the term “population transfer”, yet there is an abundant terminology
surrounding this term.
11. Population transfer involves population movement. All population
transfers have the common feature of large-scale movement of groups
of people. They entail the permanent movement of a large group of
people, often defined by their ethnicity or religion, from one region
to another. Sometimes two groups are transferred in opposite directions
at the same time, in which case the process is termed “population
exchange”. In order to distinguish population transfer from other
migratory processes, the involuntary or forced character of the practice
of population transfer should be included in the term used, even
for purposes of the title of this report. This distinction cannot
be made with total clarity, as sometimes even “voluntary” migratory
processes are triggered by the action or inaction of states making
living conditions so difficult for certain population groups that
they prefer to migrate “voluntarily”.
12. In most cases, population transfers are initiated by government
policy. Generally speaking, the practice is based on grounds of
ethnic composition of the people being moved or the people into
whose territory settlers are being moved. Enforced population transfers,
whether in the form of settlement or of removal, are often part of
a wider policy directed at a specific racial, ethnic or religious
group. They are usually politically motivated and often rooted in
racism. There are two broad categories affected by enforced population
transfers: the people being transferred (the settlers or removed
people) and those into whose area the others are being moved (the
original inhabitants; some or all of these may be removed against
their will as well).
13. Population transfer within the meaning of this report therefore
entails a deliberate policy decision of a military-strategic or
political nature. In other words, there is always an underlying
“reason” for governments engaging in population transfers. This
means that not all large-scale movements of people constitute population
transfer, which is distinct from refugee situations, as indicated
above. Justifications such as “voluntariness”, “national security”
and “temporariness” are often offered, but should be treated sceptically
as they often merely conceal a government's wish to create demographic
changes in order to consolidate, control and, in some instances,
even destroy in whole or in part a particular community.
14. For the purposes of this report, I shall resort to Article
3 of the (non-binding) United Nations Population Transfer Declaration
which defines unlawful population transfer as
A practice or policy having the purpose or effect of moving
persons into or out of an area, either within or across an international
border, or within, into or out of an occupied territory without
the free and informed consent of the transferred population and
any receiving population.
15. From this definition it can be inferred that freely consented
population transfers may be lawful.
NoteNote In this report, I will deal with
what is commonly termed compulsory or involuntary population transfer.
16. Population transfer can take several forms, as also pointed
out by our former colleague Mats Einarsson in his explanatory memorandum
on the establishment of a European remembrance centre for victims
of forced population movements and ethnic cleansing.
Note It can take the form
of mass deportation, expulsion or other forms of ethnic cleansing.
All these forms of population transfers have one thing in common:
to render one or several states more homogeneous, in ethnic, religious
or linguistic terms.
17. Historically, forced population transfers have served two
purposes: the acquisition of territory without the indigenous population
and deportation for the purposes of slavery.
Note
18. As will be seen below, in the 20th century, two forms of population
transfer can be detected: conventional and non-conventional population
transfer.
3 Examples of population transfer
19. There are plenty of examples throughout history of
population transfers.
Note The
explanatory memorandum of our former colleague Mats Einarsson gives
a sound overview of a number of population transfers that have occurred
in and since the 20th century.
Note
20. Major population transfers occurred in biblical times, e.g.
in the 9th to the 7th centuries BC when the Neo-Assyrian Empire
forcibly resettled some 4.5 million persons, including 10 of the
12 tribes of Israel. In the 6th century BC, Nebuchadnezzar deported
the remaining tribes of Judah to a 70-year captivity in Babylon. Roman
times saw many transfers, while others followed in the wake of the
invasions of Attila and Genghis Khan. In the Americas the indigenous
populations were displaced and confined in reservations, while the French
Acadians were uprooted by the British Governor of Nova Scotia and
scattered through the other British colonies. Africans were transferred
to slave labour in America.
21. In the 20th century, Armenians, Assyrians and Greeks were
displaced and massacred within the Ottoman Empire; compulsory population
exchanges took place pursuant to the Lausanne Treaty of Peace with Turkey;
Note and
the entire German population from East Prussia, Pomerania and Silesia
was expelled between 1945 and 1948.
Note
22. Moreover, the partial removal of potentially trouble-making
ethnic groups was a technique used consistently by Joseph Stalin:
Poles (1939-1941 and 1944-1945), Romanians (1941 and 1944-1953), Lithuanians,
Latvians, Estonians (1941 and 1945-1949), Volga Germans (1941-1945),
Ingrian Finns (1929-1931 and 1935-1939), Finnish people in Karelia
(1940-1941, 1944), Crimean Tatars, Crimean Greeks, Kalmyks, Balkars,
Karachays, Meskhetian Turks, Karapapak/Terekeme Turks, Far East
Koreans (1937), Chechens and Ingushs (1944). Shortly before, during
and immediately after the Second World War, Stalin conducted a series
of deportations on a huge scale which profoundly affected the ethnic
map of the Soviet Union. It is estimated that, between 1941 and
1949, nearly 3.3 million people were deported to Siberia and the Central
Asian republics.
23. More recently, in the 1990s, the policy of ethnic cleansing
in the former Yugoslavia brought about major population displacements
and in the 21st century tribal and religious conflict in Sudan has
led to mass flight and displacement, particularly in the Darfur
area.
24. Finally, the recent or ongoing conflicts in the Caucasus region
Note have led to population displacements.
4 Legal and human rights aspects
25. At present, there is no clear single code specifically
outlawing enforced population transfer or regulating its outcome;
a distinct right of individuals and groups not to be subjected to
enforced population transfer has yet to be recognised. There is
no single legal principle applicable to all types of enforced population
transfers, given the variety of this phenomenon.
26. Nevertheless, many cases of enforced population transfers
are in breach of international human rights law, international humanitarian
law and international criminal law.
27. In the paragraphs that follow, I shall deal with compulsory
population transfer. Given the effects on each individual concerned,
no difference should be made from a legal standpoint between a population
transfer (one-way) and a population exchange (two-way).
4.1 International human rights
law
4.1.1 The European Convention on
Human Rights and its Protocols
28. The European Convention on Human Rights (ETS No.
5, “the Convention”) and its Protocols contain a number of rights
that can be invoked in the context of population transfer. Article
2 guarantees the right to life, Article 3 prohibits inhuman and
degrading treatment, Article 5 provides for the right to liberty
and security and Article 8 ensures respect for private and family
life and the home. Article 1 of the Protocol No. 1 to the Convention
provides for the protection of property. Article 1 of Protocol No.
7 to the Convention contains procedural safeguards relating to the
expulsion of aliens, by granting to a legal alien a number of judicial
rights. Paragraph 2 of this article, however, allows for the expulsion
of an alien when it is necessary in the interests of public order
or is grounded on reasons of national security. It thereby contains
a procedural safeguard for an alien threatened with expulsion comparable
to Article 13 of the International Covenant on Civil and Political Rights.
29. Article 3 of Protocol No. 4 to the Convention is very clear.
It is entitled “Prohibition of expulsion of nationals” and it reads
as follows:
(1) No one shall
be expelled, by means either of an individual or of a collective
measure, from the territory of a State of which he is a national.
(2) No one shall be deprived of the right to enter the
territory of the state of which he is a national.
30. This article therefore contains an express prohibition of
mass expulsions. Article 4 of Protocol No. 4 in turn prohibits the
collective expulsion of aliens. Restriction clauses are not provided
for in these two articles.
31. Article 2 of Protocol No. 4 recognises that “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”,
although subject to the broadly formulated exception and limitation
clauses contained in paragraphs 3 and 4. Under these provisions
some forms of population transfer could arguably be justifiable
on grounds of security or ordre public.
32. Concerning the expulsion of 180 000 Greek Cypriots from northern
Cyprus by Turkey in the course of the invasion of northern Cyprus
in 1974, the European Commission of Human Rights and the European
Court of Human Rights held in several reports and judgments that
provisions of the Convention (right to family life, the right to
return to one’s home and possessions, and the right to property)
had been violated by Turkey.
Note
33. The question of restitution was addressed in the leading case
of
Loizidou v. Turkey,
Note where
the Court found a breach of Article 1 of Protocol No. 1.
Note
4.1.2 The International Covenant
on Civil and Political Rights
34. Compulsory population transfer is very likely to
violate numerous provisions of the International Covenant on Civil
and Political Rights (ICCPR),
Note notably
the right not to be subjected to torture or inhuman treatment (Article
7), the prohibition of forced labour (Article 8), the right to liberty
and security of person (Article 9), the right to freedom of movement
and right to return to one’s homeland (Article 12), the right of
aliens to individual judicial and administrative proceedings in
case of expulsion (Article 13), the right to a fair hearing (Article
14), the right to privacy (Article 17), the right to family (Article
23), the right to special protection of children (Article 24), the
right to political participation (Article 25), the right to equality
(Article 26), minority rights (Article 27), and the prohibition
of incitement to violence and racial hatred (Article 20).
4.1.3 Other Council of Europe and
United Nations conventions
35. Enforced population transfers may also be in breach
of other Council of Europe (in particular the European Convention
for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment (ETS No. 126) and the Framework Convention for the
Protection of National Minorities (ETS No. 157)) and United Nations
conventions, which space precludes from treatment at this point.
NoteNote
4.2 The right to self-determination
36. Compulsory population transfer can furthermore be
in breach of the right to self-determination of the population groups
concerned, as enshrined in Articles 1, 55, 73 and 76 of the Charter
of the United Nations, since no person or community can exercise
this right if subjected to expulsion.
Note
4.3 International criminal law
37. The earliest explicit mention of population transfer
in an international legal document was the recognition of mass expulsions
as a war crime in the Allied Resolution on German War Crimes, adopted
by representatives of the nine occupied countries, exiled in London,
in 1942.
Note
38. The 1945 Agreement for the Prosecution and Punishment of the
Major War Criminals of the European Axis, and Charter of the International
Military Tribunal
Note (Nuremberg
Tribunal), includes, in Article 6(c), deportation as a crime against
humanity.
39. The Rome Statute of the International Criminal Court
Note designates the deportation or forcible
transfer of population, that is the 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, as a crime against humanity
Note and, referring to the Geneva Conventions,
also designates unlawful deportation as a war crime.
Note Furthermore,
when committed with the intent to destroy, in whole or in part,
a national, ethnical, racial or religious group, the forced transfer
of children is explicitly mentioned as a form of genocide.
Note
40. Likewise, the Statute of the International Criminal Tribunal
for the former Yugoslavia (ICTY)
Note includes deportation as a crime
against humanity
Note and also expressly mentions the
forced transfer of children in the context of genocide.
Note
41. The crime of forced population transfers as a component of
the policy of ethnic cleansing in the former Yugoslavia in the 1990s
has thus been the subject of numerous indictments by the ICTY, including
those of Slobodan Milošević,
NoteNote Radovan Karadžić and Ratko Mladić.
Note
42. In some cases, the ICTY has ruled that aspects of ethnic cleansing,
such as the massacre of Srebrenica in 1995, constitute genocide.
NoteNote
43. The above-mentioned cases illustrate the fact that forced
population transfers constitute not only illegal acts, but also
international crimes subject to penal sanctions.
4.4 International humanitarian
law
44. International humanitarian law is the set of rules
which seeks, for humanitarian reasons, to limit the effects of armed
conflict. It protects persons who are not or no longer participating
in the hostilities and restricts the means and methods of warfare.
Note This body of law is of particular
relevance to population transfers when they take place in or around
an armed conflict.
4.4.1 The Fourth Hague Convention
(1899, revised in 1907)
45. The fourth Hague Convention respecting the Laws and
Customs of War on Land,
Note adopted in 1899 and revised in 1907,
codifies in detailed form conduct in times of war. It does not explicitly
deal with population transfer. However, its Articles 42 to 56, dealing
with military authority over the territory of the hostile state,
offer an implicit protection against population transfer. According
to Article 43, the occupant is under an obligation to take all the
measures in its power to restore, and ensure, as far as possible,
public order and safety, while respecting, unless absolutely prevented,
the laws in force in the country. Article 46 stipulates that family
honour and rights, the lives of persons, and private property, as
well as religious convictions and practice, must be respected and
that private property cannot be confiscated.
4.4.2 The Fourth Geneva Convention
(1949) and its Additional Protocols I and II (1977)
46. Pursuant to Article 49 of Geneva Convention (IV)
relative to the Protection of Civilian Persons in Time of War (1949),
Note 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.
This prohibition is almost absolute, the only exception in paragraph
2 being that 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. Furthermore, Article 49 stipulates
that the occupying power shall not deport or transfer parts of its
own civilian population into the territory it occupies. It must
be stressed, once more, that Article 49 only applies in case of
armed international conflict.
47. As for a non-international armed conflict, one can submit
that the prohibition of population transfer can be inferred from
Article 3,
NoteNoteNoteNoteNoteNoteNoteNoteNoteNoteNoteNote common to all Geneva Conventions,
as it is given that this article, though not explicitly mentioning
population transfer, sets a minimum standard concerning the treatment
of persons protected by the Geneva Conventions.
48. Article 147, relating to grave breaches, includes unlawful
deportation or transfer or unlawful confinement of a protected person.
49. According to Article 85, paragraph 4, of Protocol I, the wilful
transfer by the occupying power of parts of its own civilian population
into the territory it occupies, or the deportation or transfer of
all or parts of the population of the occupied territory within
or outside this territory, in violation of Article 49 of the Fourth Convention
constitutes a grave breach of the Protocol. Furthermore, Article
85 of Protocol I specifies that “without prejudice to the application
of the Conventions and of this Protocol, grave breaches of these instruments
shall be regarded as war crimes”.
50. Article 17 of the Protocol Additional to the Geneva Conventions
of 12 August 1949, and relating to the Protection of Victims of
Non-International Armed Conflicts (Protocol II) stipulates that
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
need 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 and that civilians
shall not be compelled to leave their own territory for reasons
connected with the conflict.
4.4.3 The Convention on the Non-Applicability
of Statutory Limitations to War Crimes and Crimes Against Humanity
51. The Convention on the Non-Applicability of Statutory
Limitations to War Crimes and Crimes Against Humanity
Note extends
the concept of war crimes and crimes against humanity as defined
by the Charter of the Nuremberg Tribunal. It also embodies the principle
that no statutory limitations shall apply to the crimes referred
to in the Convention, “irrespective of the date of their commission”.
Furthermore, Article I(b) specifies that crimes against humanity
may be committed “in time of war or in time of peace”. Article II
stresses that inaction, as distinct from active involvement, on
the part of the state authorities in not preventing the commission
of international crimes is sufficient to bring those persons within
the ambit of the convention.
5 Conclusion
52. Population transfers occur under varying circumstances
ranging from wars and post-war situations to internal conflicts
and even in peacetime. They may include the removal as well as the
settlement of persons, within or across the boundaries of a state.
In the past, population transfers used to be accepted as a means
to settle political, ethnic and religious conflict. Nowadays they
are rightly considered as serious violations of international law.
53. No single legal principle can be applied to all population
transfers. Depending on the individual circumstances of each population
transfer and the various groups it affects, different legal standards
and principles apply.
54. The absence of a single international instrument on population
transfer leads to overlap, inaccessibility and disparity in the
level of protection available to victims of different forms of enforced
population transfer.
Note
55. Forced population transfer is not compatible with public international
law. As has been seen, it runs counter to principles of ius cogens, including the right
to self-determination. In times of peace, such transfers violate
civil, political, economic, social and cultural rights. In times
of war, they also violate principles of international humanitarian
law. In this context, public international law forbids the annexation
of occupied territory, demographic manipulations and recruitment
of forced labour.
56. Enforced population transfer can trigger state responsibility,
including an obligation to make reparations. As a violation of international
criminal law, it triggers the rules of individual criminal responsibility.
57. I would like to conclude with a quote to which I fully subscribe
from Alfred de Zayas when he states in the Max Planck Encyclopedia
of Public International Law: “‘Transfer’ is a euphemism to hide
the trauma of forced separation from one’s homeland and the consequent
dislocation of one’s identity and traditions, entailing the destruction
of historical and emotional links to the native earth, ancestral
landscapes, cultural heritage, churches and cemeteries. Political
pundits sometimes try to disguise mass expulsions in the name of contributing
to lasting peace. Such has never been the real motivation of population
transfer. Peace is secured only by respecting the human rights of
the populations concerned.”
Note
