A Critique of the ICRC's Customary Rules Concerning Displaced Persons: General Accuracy, Conflation, and a Missed Opportunity

• Author: Lieutenant Jamieson L. Greer
• Pages: 06

116 MILITARY LAW REVIEW [Vol. 192

A CRITIQUE OF THE ICRC'S CUSTOMARY RULES CONCERNING DISPLACED PERSONS: GENERAL ACCURACY, CONFLATION, AND A MISSED OPPORTUNITY†

LIEUTENANT JAMIESON L. GREER°

1. Introduction

   The International Committee of the Red Cross (ICRC), in its recent compilation of customary international humanitarian law, distills five customary Rules governing the treatment of displaced persons. These Rules indicate that customary law (1) prohibits parties to a conflict from forcibly transferring civilian populations (allowing an exception for military necessity), (2) prohibits states from transferring portions of their own population to a territory they occupy, (3) insists that displaced persons must receive basic access to the necessities of life and enjoy family unification, (4) asserts a right of voluntary return for displaced persons upon the cessation of the causes of displacement, and (5) insists that the property rights of displaced persons must be respected.1

   Generally, these rules are representative of customary international law; however, there are a few flaws that strip these rules of some of their value. In addition, two broad problems with the ICRC's analysis are (1) the conflation of separate legal groups-refugees, internally displaced persons, and other migrants-into one, affecting the scope of duties to these groups under the law of war, and (2) the curious absence of a rule addressing nonrefoulement obligations during armed conflict. This brief critique will review the general accuracy and possible flaws in the Rules, the conflation of separate legal classifications, and the surprising omission of a nonrefoulement rule. While the rules on displaced persons have normative or aspirational value, they do not reflect the state of customary law and thus have limited practicality in current law of war issues.

2. The Rules in Particular

   In general, the Rules are accurate restatements of customary international law. Some portions of the Rules are, however, aspirational. For example, Rule 129(B) asserts that parties to a non-international armed conflict may not displace the civilian population for reasons related to the conflict unless for the security of the citizens or out of military necessity.2 This Rule implies that parties to a conflict feel bound by customary international law during wartime in their decisions concerning the placement of their civilian population, an idea challenged by competing notions of sovereignty. The rule is saved, temporarily, by the "military necessity" loophole, which would conceivably allow almost any displacement of civilians during wartime. The military necessity exception would allow forced displacement measures such as moving a group of civilians to work in armaments factories, using their homes for quartering troops, or evacuating an area in the slight chance that it may become a battlefield. The military necessity exception, coupled with the national security exception, is more accurate than an absolute prohibition, but it renders Rule 129(B) largely unhelpful. It is difficult to conceive of a situation that would prevent a party to a non-international conflict from displacing a domestic civilian population.

   The ICRC, however, makes a good case for promulgating the Rule. The ICRC cites significant treaty law as evidence, including Additional Protocol II (AP II) to the Geneva Conventions and provisions from the International Criminal Court (ICC), International Criminal Tribunal for the Former Yugoslavia (ICTY), and International Criminal Tribunal for Rwanda (ICTR) Statutes criminalizing civilian displacement.3

   Furthermore, the ICRC looks to bilateral agreements between parties in internal armed conflicts in Bosnia and Herzegovina and the Philippines which have similar provisions.4 Additional Protocol II is less widely accepted than other international humanitarian law treaties,5 and is not

   generally considered customary law,6 but it is evidence of state intent. The ICC has similar customary weight.7 The ICRC cites Article 5(d) of the ICTY statute, which broadly grants the Tribunal power to prosecute those responsible for deporting any civilian population during internal or international armed conflict.8 Of course, the Statute is limited in its geographic and temporal jurisdiction to the territory of the former Yugoslavia since 19919 and was designed to address the unique circumstances of that conflict. Furthermore, conflicts in the former Yugoslavia were not only internal in nature but also international at times. The later ICTR Statute has a similar provision prohibiting deportation, but rejects the broad scope of the ICTY provision and limits the prohibition on deportation only to those carried out "as part of a widespread and systematic attack against any civilian population on national, political, ethnic, racial or religious grounds."10 This narrow prohibition is probably more representative than the ICTY provision or the AP II provision, and is more indicative of the exact purpose of the Rule.

   A more accurate rule pertaining to non-international armed conflict would read: "Parties to a non-international armed conflict may not order the displacement of the civilian population, in whole or in part, as part of a widespread and systematic attack against any civilian population on national, political, ethnic, racial, or religious grounds." The ICRC references to state practice in the former Yugoslavia and Rwanda both occurred in contexts of discriminatory treatment of civilians. Discrimination was also the central problem in Germany's deportations during World War II, which prompted criminal deportation laws in international conflicts.11 The state practice cited by the ICRC occurs purely in the context of ethnic or social "cleansing," and the rule should reflect that narrow application. The ICRC construction tends to hide this

   main purpose of the Rule by simply restating human rights law applicable domestically and then cutting most of those rights away with the military necessity clause.12 Although the ICRC rule may hedge against unforeseen circumstances, customary law is not forward-looking in nature, but dependent on historic state practice and opinio juris. The alternative construction offered above better reflects state practice and sense of obligation with regard to internal displacement: displacement for discriminatory reasons is unlawful.

   Rule 130, prohibiting transfer of citizens into occupied territory, is an accurate statement of customary international law. The most prominent outlier in the international community as to Rule...