C Explanatory memorandum
by Mr Fabien Gouttefarde, rapporteur
1 Introduction
1. Displacement is a wide concept
and covers individuals and families forced to move because of conflicts, wars,
natural disasters and other reasons. However, within this group
of persons, there are those whose displacement is not just a question
of the circumstances in which they find themselves, but it is also
the goal of a State or non-State actor, in other words the deliberate
intention of a third party. This affects the nature of the displacement,
the seriousness of it and the likelihood of return. At its most
heinous, it might be ethnic cleansing, but it might also have other
substantive objectives, such as the elimination of political opposition, the
conquest of land and the obtaining of possessions including natural
resources.
2. As the consequences are highly serious, it is important that
national laws and policies as well as international law are able
to tackle these situations and prohibit, prevent and prosecute such
deliberate displacement and provide protection to the victims and
survivors. While there is a myriad of provisions in national laws
and practices and also in international law, it would be necessary
to bring these together in order to have a clear framework for dealing
with what has been referred to under international law as “arbitrary displacement
of persons”.
3. In this context and in this report, I therefore propose looking
at cases of arbitrary displacement in the world, including in Europe,
by armed conflicts, terrorism and generalised violence. Different
legal frameworks at national and international levels should be
examined and recommendations be provided regarding gaps that exist
on these frameworks. Such gaps should be filled through a comprehensive
and comprehensible framework to prohibit, prevent and prosecute
such displacement and provide protection and compensation to the
victims and their families.
4. In the framework of the preparation of this report, I had
hoped to visit Turkey, which hosts the largest number of persons
displaced from Syria, as well as Greece where most Syrian refugees
pass through on their way to the European Union. The Covid-19 pandemic
and very reduced possibilities for travel made these visits impossible.
However, I am grateful to the national delegations of both countries
for having responded in writing to questions.
2 Arbitrary displacement of persons
5. In order to understand the
context and scope of arbitrary displacement it is first necessary
to understand the context and scope of displacement in general and
also asylum. Armed conflicts, extreme violence and massive violations
of human rights force many people to leave their homes every year.
In its latest Global Trends Report, the United Nations High Commissioner
for Refugees estimates that 79.5 million people were forcibly displaced
in 2019 globally, which constitutes an increase of more than 10
million people compared to 2018.
Note For Europe, the Internal Displacement
Monitoring Centre estimates nearly 2.8 million internally displaced
persons.
Note Out of the 612 700 first-time asylum
applicants in the European Union in 2019,
Note nearly 300 000 were granted protection
by European Union member States.
Note There have been some 150 000 new asylum
applications in the European Union in the first quarter of 2020.
Note Non-European Union member States also
host many displaced persons, in particular Turkey which registered
3 604 910 displaced persons from Syria.
Note Displacement has become much more
widespread and a persistent phenomenon where persons are displaced
for many years or even decades.
Note
6. Many displaced persons become international refugees, but
the majority remain displaced within their own country. The present
report uses the term “victims of arbitrary displacement”, including
both internally displaced persons as well as international refugees.
In fact, this term shall be understood as defined in the African
Union Convention for the Protection and Assistance of Internally
Displaced Persons in Africa of 2009 (Kampala Convention).
NoteNoteNoteNoteNoteNoteNoteNoteNoteNoteNoteNote The decisive factor is that persons
have intentionally and arbitrarily been forced to leave their home
against their will and their interest, in particular as an objective
of an armed conflict.
7. In order to combat arbitrary displacement effectively, it
is necessary to protect the victims and prohibit such displacement,
prosecute its perpetrators and prevent perpetrators benefitting
from their actions. The effective implementation of international
law should therefore also be used for the seizure of any proceeds
or material gains from arbitrary displacement of persons.
8. People can also be compelled to leave their home due to disasters,
be they human-made or natural disasters. Such cases are not the
focus of this report, as they lack an element of intention and arbitrariness. Such
displacement might also be an indirect consequence of conflicts,
as in Yemen where the ongoing armed conflict puts more than 10 million
people at risk of starving.
Note
9. The fate and suffering of displaced persons often go unnoticed
in Europe, unless they try to enter our member States. There are
many countries and regions around Europe where large-scale arbitrary displacement
is ongoing. Within Europe, people were arbitrarily displaced in
the wake of the dissolutions of the USSR as well as former Yugoslavia,
but also in Armenia, Azerbaijan, Bosnia and Herzegovina, Cyprus, Georgia
and Ukraine, which are the countries that have seen the largest
numbers of displaced persons.
10. The humanitarian needs and rights of internally displaced
persons in Europe have been addressed in Assembly
Resolution
2214 (2018) and the report by our colleague Mr Killion Munyama (Poland,
EPP/CD). Therefore, the present report does not intend to duplicate
this work but focuses on the protection of victims of arbitrary
displacement under international law. Humanitarian action for refugees
and migrants in countries in North Africa and the Middle East is
being addressed in the report by our colleague Lord Alexander Dundee (United
Kingdom, EC/DA), and thus adds a complementary and related aspect.
11. As an organisation upholding human rights and the rule of
law, the Council of Europe and its member States must join international
action to protect victims of arbitrary displacement under international
law. At the same time, international law must guide member States
which are active in protecting the population of another country
against violence and displacement, such as under the mandate of
the United Nations. The objective of my report is to clarify the
legal requirements and possibilities for protecting the millions
of people against their arbitrary displacement and prosecute perpetrators.
3 International
standards
3.1 Arbitrary
displacement by armed conflicts
12. Since the establishment of
the International Military Tribunal in Nuremberg at the end of the
Second World War, the act of deportation of civilians in the wake
of war is recognised as either a war crime if it is directed against
the population of an occupied territory, or a crime against humanity
if deportation is perpetrated otherwise.
Note
13. Article 147 of the Fourth Geneva Convention of 1949 relative
to the Protection of Civilian Persons in Time of War and Article
85 (4.a) of the Additional Protocol No. I to the Geneva Conventions
have transferred this rule from customary international law into
universally recognised treaty law. Under Article 49 (1) of the Fourth
Geneva Convention, “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.” Article
17 of the Additional Protocol No. II to the Geneva Conventions relating
to the Protection of Victims of Non-International Armed Conflicts
prohibits the forced movement of civilians.
14. Article 7 of the Statute of the International Criminal Court
stipulates that it is a crime against humanity to displace persons
by expulsion or other coercive acts from the area in which they
are lawfully present. Article 8 of this Statute stipulates that
the deportation, transfer or displacement of civilian population
is a war crime. Before the creation of the International Criminal
Court, Article 5 (d) of the Statute of the International Criminal Tribunal
for the former Yugoslavia and Article 3 (d) of the Statute of the
International Criminal Tribunal for Rwanda declared the deportation
or transfer of civilian population a crime against humanity.
15. Through resolutions, the UN Security Council has condemned
instances of arbitrarily displacement of civilian populations in
Council of Europe member States, for example in Azerbaijan,
Note Bosnia
and Herzegovina,
Note Cyprus
Note and
Georgia,
Note as
well as outside Europe in Burundi
Note and Sudan.
Note However, procedures
in the UN Security Council have sometimes been paralysed by a veto
of States directly or indirectly involved in an armed conflict leading
to population displacements.
Note
16. In 1998, the representative of the United Nations Secretary-General
on internally displaced persons, Mr Francis Deng, presented to the
United Nations Commission on Human Rights the Guiding Principles
on Internal Displacement, which specifically address arbitrary displacement.
I am grateful for the co-operation of Ms Cecilia Jimenez-Damary,
United Nations Special Rapporteur on the Human Rights of Internally
Displaced Persons, who addressed our committee on 16 October 2020.
17. In addition to prohibiting the displacement of civilian populations
and establishing that all persons have a right to be protected against
arbitrary displacement, Article 7(5)(a) the African Union Convention
for the Protection and Assistance of Internally Displaced Persons
in Africa (Kampala Convention)
Note prohibits also displacement carried
out by members of armed groups, defined as “dissident armed forces
or other organized armed groups that are distinct from the armed
forces of the State”.
18. While acts of war have been declared officially by belligerent
parties in the past, modern warfare seems to avoid such declarations
of war. Instead, public-private military contractors, mercenaries
and local war lords play an increasing role. One example is that
of Daesh mercenaries
NoteNoteNote. From a legal point of view, such outsourcing
or sub-contracting cannot prevent a State’s liability through para-military
action of armed groups.
Note
19. Forcible displacement of persons is a violation of the European
Convention of Human Rights.
Note In its Grand Chamber judgment in
the case of
Chiragov and Others v. Armenia (Application
No. 13216/05), the European Court of Human Rights confirmed that
a violation of the Convention continued as long as displaced persons
were not able to exercise their rights under the Convention, irrespective
of whether the original act of displacement had occurred before
a member State acceded to the Convention.
20. In addition, Articles 3 and 4 of the Protocol No. 4 to the
European Convention on Human Rights (ETS No. 46) prohibit the individual
or collective expulsion of nationals or the collective expulsion
of aliens, respectively.
Note Article 13 of the International
Covenant on Civil and Political Rights prohibits the unlawful expulsion
of an alien who is lawfully in the territory of a State Party.
3.2 Arbitrary
displacement by terrorism and violence
21. Terrorists often receive material,
logistical or financial support from abroad, including from foreign governments.
In such circumstances, it is therefore difficult to separate terrorist
action from foreign para-military or mercenary activities. Where
States support terrorism in another country, those States must be
held liable for illegal consequences including population displacements.
22. In 1977, the Council of Europe opened for signature its European
Convention on the Suppression of Terrorism (ETS No. 90), which has
been up-dated by its Additional Protocol (ETS No. 190) and subsequently complemented
by the Convention on the Prevention of Terrorism (CETS No. 196)
and its Additional Protocol (CETS No. 217). Besides other legal
standards developed by the Council of Europe for combating terrorism,
Note the Convention on Laundering, Search,
Seizure and Confiscation of the Proceeds from Crime and on the Financing
of Terrorism (CETS No. 198) can be a strong tool, because it helps
to cut financial support for terrorists.
23. Within its Common Foreign and Security Policy, the European
Union established under its Common Position 2001/931/CFSP a list
of persons, groups and entities involved in terrorist acts, with
a view to the freezing of their financial assets and enhanced measures
related to police and judicial co-operation.
Note
24. Generalised violence can occur also at a genuinely internal
level inside a country. History has seen a great number of ruthless
dictators who arbitrarily displaced parts of their own population,
often on ethnic grounds or for political reasons.
25. Ethnic cleansing has become a sad term used in international
humanitarian law and politics to describe the targeted change of
the demographic composition of a territory on ethnic grounds.
Note Besides armed aggression, targeted
violence has been used in blatant cases of ethnic cleansing, including
sexual violence. The United Nations published a report showing that
sexual violence has frequently been used as a means of warfare,
despite international action against such atrocity.
Note
26. We will remember the fate of Nadia Murad who, like thousands
of Yazidi women in Iraq, had been captured and subjected to extreme
sexual violence and death threats by the terrorist organisation
Daesh.
Note Through its Václav Havel Human Rights
Prize of 2016, the Assembly honoured the brave struggle of Nadia Murad
who had escaped to Germany. She subsequently received the Nobel
Peace Prize in 2018.
Note
27. Similar atrocities have been and are committed by Boko Haram
terrorists in the Lake Chad region,
Note where hundreds of thousands of people
have been displaced.
Note
4 National
courts
28. National courts have become
more active in protecting victims of arbitrary displacement by prosecuting perpetrators
of crimes against humanity or other crimes committed in armed conflicts
or terrorism.
29. As far as own nationals are concerned, national courts have
obvious jurisdiction. For example, national courts in Belgium,
Note the Netherlands
Note and Norway
Note prosecute own nationals involved
in terrorist fighting abroad. In addition, national courts have
prosecuted foreigners who were found on their territory, for example in
Germany
Note and Spain.
Note
30. Universal jurisdiction over war crimes or crimes against humanity
is recognised in several countries in Europe, for instance in Finland,
France, Germany, the Netherlands, Spain and Sweden. While the concept
of universal jurisdiction will help avoid impunity for crimes leading
to arbitrary displacement of persons, such trials face a number
of practical difficulties. Witnesses have to be heard by national
courts, but those witnesses might fear retribution against their
families who are still within the reach of the perpetrators. The
accused perpetrators might not appear or be represented before a
national court.
31. The European Union and the African Union initiated work on
universal jurisdiction in 2008, which led to a joint expert report
in 2009.
Note In 2018, the European Parliament
held an expert work shop on “Universal jurisdiction and international
crimes: constraints and best practices”, the proceedings of which
are published in a report of the European Parliament.
Note It becomes apparent from such work,
that universal jurisdiction can be a powerful legal tool for avoiding
impunity.
32. The Assembly addressed this subject in its
Resolution
1785 (2011) and
Recommendation
1953 (2011) on the obligation of member and observer States of the
Council of Europe to co-operate in the prosecution of war crimes.
The Council of Europe can indeed be a suitable forum to advance
universal jurisdiction among its member States.
33. In addition, national courts should become more involved in
seizing the material gains made by persons responsible for the displacement
of persons. Seizing illegal money and attaching possessions can
be an effective manner to avoid that war lords and mercenaries exploit
the displacement of persons.
5 Asylum
proceedings of arbitrarily displaced persons
34. Arbitrary displacements of
persons generally occur in widely known situations with high media
attention. Therefore, victims of arbitrary displacement could typically
be identified in simplified asylum procedures. Member States should
be able to classify countries where arbitrary displacements occur.
In 2009, the Council of Europe published guidelines on human rights
protection in the context of accelerated asylum procedures.
Note
35. Victims of arbitrary displacement should receive specific
attention and care which takes account of their particular situation.
In addition, law enforcement authorities should take evidence and
prosecute perpetrators of such displacements.
6 Co-operation
6.1 Political
action and awareness
36. Besides legislative action
for the protection of arbitrarily displaced persons, political action
can be taken in various guises, whether through the work of Foreign
Ministries, or awareness raising in and outside of parliaments.
37. Based on such facts, political action should be mobilised
in national parliaments and by governments. International co-operation
should be sought to halt and counter arbitrary displacements and
their consequences.
6.2 Security
co-operation
38. Some member States are actively
present in areas where people are displaced by an armed conflict
or terrorism. For example, European Union member States participate
in joint peacekeeping missions, such as in co-operation with the
United Nations.
Note
39. Besides their primary military function, personnel of peacekeeping
missions can also be witnesses in trials of crimes against humanity
or war crimes. Such additional potential functions require awareness-raising and
training of personnel as well as close co-operation between the
various national missions deployed in a given area.
6.3 Law
enforcement co-operation
40. National law enforcement authorities
and courts should co-operate closely in cases regarding displacement
where there are possible crimes against humanity or war crimes involved.
The International Criminal Court can only deal with a small fraction
of cases. Therefore, much of the judicial work must be done at national
level.
41. This includes also effective co-operation and mutual legal
assistance in restricting foreign funding of militia, mercenaries
or terrorists, in accordance with the Convention on Laundering,
Search, Seizure and Confiscation of the Proceeds from Crime and
on the Financing of Terrorism of the Council of Europe.
6.4 Financial
assistance
42. The European Union is a major
donor for humanitarian aid to displaced persons globally.
Note In addition, many member States
provide technical and other assistance individually as well as financial
aid. The report by our colleague Lord Dundee on humanitarian action
for refugees and migrants in countries in North Africa and the Middle
East will focus on this subject.
43. In accordance with article 79 of the Statute of the International
Criminal Court, States parties established in 2004 a Trust Fund
for Victims, which has programmes aimed at combating the harm resulting
from genocide, crimes against humanity, war crimes and aggression.
Council of Europe member States should support this fund.
44. In addition, member States can protect against arbitrary displacement
if they require relevant action from countries receiving financial
assistance, in particular co-operation in the fight against arbitrary
displacement, national prosecutions and effective co-operation with
the law enforcement authorities of donor countries.
6.5 Co-operation
with non-governmental organisations
45. Governments and parliaments
depend on relevant information from experts on the ground. Humanitarian
assistance to displaced persons is often provided by NGOs in the
field. Therefore, it is essential co-operate closely with humanitarian
NGOs and civil society experts in areas where arbitrary displacement
in being perpetrated.
Note
7 Conclusions
46. The Assembly can have a key
role firstly in making the issue of arbitrary displacement better
known and more widely accepted in international law, and in mobilising
political action and ensuring that national law and practice is
effective in preventing arbitrary displacement of persons, tackling
the damages suffered by survivors, and enabling prosecution of the
perpetrators.
47. National legislation should effectively implement Council
of Europe standards and public international law. International
law, norms and standards need to be brought together to create greater
clarity on this issue.
48. The processing of asylum applications of arbitrarily displaced
persons should take account the particular circumstances and severity
of such displacements.
