ETHNIC CLEANSING: Applicable norms, emerging jurisprudence, implementable remedies

by Alfred de Zayas ^[1]

Introduction

 In the light of the increasing internationalization and inter-dependence of the modern world, the concept of ethnic homogenization of a State appears anachronistic. One would have thought that after the defeat of Hitler's Weltanschauung in Europe and after the failure of Apartheid in Southern Africa, policies of forcible separation of cultures and peoples would be thoroughly discredited.

In the light of modern international law, the attempt to achieve separation by means of forced population transfer is not only anachronistic and grotesque: it is illegal.  Without a doubt, ethnic cleansing constitutes an internationally wrongful act, giving rise to State responsibility, and an international crime, giving rise to individual penal liability.  The same applies to the colonial practice of implanting settlers in occupied territory. Expulsion and implantation also have important human rights implications. As the first United Nations High Commissioner for Human Rights, Mr. José Ayala Lasso, stated on 28 May 1995: "the right not to be expelled from one's homeland is a fundamental human right" ^[2] , and on 17 February 1997 at the opening of an expert seminar in Geneva: "Compulsory population transfers, including the implantation of settlers are a serious matter, not only because they affect many people, but also because they violate the whole gamut of civil and political rights, economic, social and cultural rights.  Let us remember, human rights are not exercised in a vacuum, but quite concretely where one lives.  Expulsion by its very nature deprives victims of the exercise of many rights and is frequently accompanied by physical abuses and even by the ultimate violation of the right to life." ^[3]

Viewed from this perspective, this essay may appear superfluous.  If the law is so clear, why write about it?  Only because population transfers are still occurring today; because colonizers are being implanted in occupied territories; because victims of expulsion are still prevented from returning to their homes and denied restitution.

Alas, in the same way as the Bible has not done away with sin, in the same way that article 2, paragraph 4, of the United Nations Charter has not ended the threat or the use of force in international relations, and in the same way that the Convention against Torture has failed to stop the occurrence of this abhorrent practice, the prohibition of forced population transfers and the implantation of settlers has not dissuaded some nationalistic politicians from ravaging their neighbours -- too often with impunity.

 The phenomenon of ethnic cleansing in Kosovo and in the former Yugoslavia is not the first manifestation of forced population transfers in this century of refugees.  And, incidentally, victims of ethnic cleansing have not been only the Croats and the Muslim Bosniacs, but also the hundred and fifty thousand Serbs from the Krajina in Croatia ^[4] .  All are individual victims of injustice and they deserve our compassion and solidarity.

    "Ethnic cleansing" -- this dreadful new concept -- is but a new term to describe the old State practice of expelling minorities on racial or religious grounds.  Even before the first world war the Balkans saw numerous expulsions and population "exchanges". ^[5]   During the war, pent up nationalism led to the genocide against the Armenians and to the expulsion of the Greek communities from Asia Minor.  At the Paris Peace Conference the international community established the League of Nations and created a system of minority protection by treaty. Thousands of petitions were submitted to the League of Nations and some came before the Permanent International Court of Justice at The Hague, which held that the Minorities Treaties were not being duly observed.  But neither those minorities treaties nor the judgments of the PCIJ succeeded in ensuring the human rights of minorities in the inter-war period. ^[6]  

     A particularly injurious precedent for Europa and the world was the 1923 Treaty of Lausanne, because it recognized the so-called population exchanges between Greece and Turkey, which were anything but voluntary.  I sympathize with the words of Lord Curzon, the British Foreign Minister who participated in the Conference and warned of the dire consequences that would follow such a "thoroughly bad and vicious solution, for which the world will pay a heavy penalty for a hundred years to come." ^[7]   Unfortunately for all concerned, some European politicians pretended that it was within the power of governments to legalize compulsory population transfer by simple agreement, regardless of the human cost.

I.  The international prohibition of forced population transfers

During the Second World War Nationalist Socialist Germany proved to be an avid practitioner of population transfers and the implantation of settlers.  At the end of the war, however, the victorious Allies indicted the German leaders for these offences, which clearly violated articles 42 to 56 of the Regulations on Land Warfare appended to he Fourth Hague Convention of 1907. 

Article 6(b) of the Nuremberg Statute defined "war crimes" to include the deportation of civilian populations. Article 6(c) of the Charter defined "crimes against humanity" to include deportation and other inhumane acts committed against any civilian population before or during the war. ^[8]

During the trial Pierre Mounier, assistant prosecutor for France, called the mass deportations "contrary to the international conventions, in particular to article 46 of the Hague Regulations, 1907, the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations, the internal penal laws of the countries in which such crimes were committed, and to Article 6(b) of the Charter" ^[9]

It became clear that impediments placed in the way of war refugees who wanted to return to their homelands upon cessation of hostilities were, in human rights terms, equally criminal acts.  On 14 December 1945 Captain Samuel Harris, assistant prosecutor for the United States, introduced evidence on this matter and read the following excerpt from a report on expulsions from Alsace into the court record: "The first expulsion action was carried out in Alsace in the period from July to December 1940... 105,000 persons were either expelled or prevented from returning." ^[10]

In the Nuremberg Judgment the Tribunal held the German leaders guilty of having committed the offences of forced population transfers and implantation of settlers, particularly in connection with the expulsion of over one million Poles from the Warthegau into Central Poland and the settlement of the area by German Lebensraum colonizers. ^[11] By virtue of General Assembly Resolution 95(I) of December 1946 ^[12] ,the Nuremberg Judgment was unanimously affirmed.

Consistent with articles 6(b) and (c) of the Nuremberg Statute, the Allies adopted Control Council Law No. 10, which allowed prosecutions by the occupation tribunals. In 1950 the International Law Commission incorporated these concepts into Principle VI of the "Nuremberg Principles."  The concepts reappear in the Statutes of the International Criminal Tribunal for the Former Yugoslavia (art. 5) and for Rwanda (art. 3).

In the light of the unequivocal position against forced population transfers taken by the Allies at Nuremberg and subsequently endorsed by the United Nations, it would have seemed safe to assume that compulsory population transfers and the implantation of settlers in territories long settled by other peoples would no longer occur.  Unfortunately, a huge gap remained between standard setting and implementation.  Indeed, while the Nuremberg trials were still in progress, the deportation of some fifteen million ethnic Germans from their 700-year old homelands in East Prussia, Pomerania, Silesia, East Brandenburg and the Bohemian and Moravian Sudetenland proceeded with impunity, at the cost of more than two million deaths. ^[13]

 

In 1948 the United Nations adopted the Convention on the Prevention and Punishment of the Crime of Genocide.  It is not difficult to consider "ethnic cleansing" and forced population transfers as falling within the scope of Article 2 of the Convention.  The International Court of Justice is now testing the validity of this contention in the case of Bosnia v. Yugoslavia, which was declared admissible on 11 July 1996.

     In 1949 the International Committee of the Red Cross, which had been critical of the expulsion of the Germans, laid down the general principle of law, already implicit in articles 42 to 56 of the Hague Regulations of 1907, that civilian populations must not be deported from their homelands. Article 49 of the Fourth Geneva Convention on the Protection of Civilians in Time of War of 12 August 1949 stipulates:

"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.

Nevertheless, 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...Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased..."

It terms of human suffering, internal displacements affect as many victims and cause as many deaths as forced population transfers across national frontiers.  Article 17 of the Second Protocol of 1977 to the Geneva Conventions of 1949 applies this prohibition to internal displacements in times of non international armed conflict:

"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... Civilians shall not be compelled to leave their own territory for reasons connected with the conflict."

The above prohibition of forced displacement, whether internal or across frontiers, constitutes universal "hard law" and can be considered a general principle of law.

Whereas the Geneva Conventions and Protocols create a regime of humanitarian law that prohibits such transfers, the human rights regime established under the International Covenant on Civil and Political Rights, the Covenant on Economic, Social and Cultural Rights, and the International Convention on the Elimination of Racial Discrimination constitute a regime of universal hard law in the human rights field, which similarly abhors collective expulsions.

It should be noted, for instance, that article 1 common to both Covenants establishes the right of self determination.  It is obvious that any forced population transfer would necessarily  violate the right to one's identity, privacy, family, culture, security of person, due process, freedom of movement, and sometimes even the right to life.

Paragraph 13 of General Comment No. 7 of the Committee on Economic, Social and Cultural Rights specifically prohibits forced evictions and house demolitions, which frequently accompany population transfers.  "Likewise, the Committee takes note of the obligations enshrined within the 1949 Geneva Conventions and 1977 Protocols which relate to prohibitions on the displacement of the civilian population and the destruction of private property as these relate to the practice of forced evictions."

The entire Convention on the Elimination of Racial Discrimination is based on the principle of equality of treatment to which all human beings are entitled.  In the examination of State party reports, the Committee has taken a clear position against ethnic cleansing. Thus, in its concluding observations regarding a report on the Republic of Bosnia and Herzegovina ^[14] , the Committee condemned the displacement of a population to achieve ethnically homogeneous areas, because this constituted "a grave violation of all the basic principles underlying the International Convention on the Elimination of All Forms of Racial Discrimination." ^[15]

Regional "hard law" is found in article 3 of the Fourth Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, which states:

"No one shall be expelled, by means either of an individual or a collective measure, from the territory of the State of which he is a national"

Moreover, article 4 prohibits the "collective expulsion of aliens".

The African Charter for Human and Peoples' Rights stipulates in article 12(5) that "mass expulsion of non-nationals shall be prohibited."  Furthermore, article 6 contains the right of every individual to "liberty and security of his person."

Article 22, paragraph 6, of the American Convention on Human Rights prohibits the expulsion of nationals from the State's territory and grants them the right of entry.  In accordance with paragraph 6, aliens can only be expelled after due process and a decision pertaining to an individual case.  Collective expulsions of aliens are expressly prohibited in paragraph 9.

In addition to universal and regional "hard law", consisting primarily of treaties and binding judicial precedent, other less binding norms such as resolutions, declarations and guidelines are constantly being proclaimed by a variety of organs.  For instance, the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities has undertaken many studies that have contributed to the progressive development of international human rights law and of monitoring mechanisms.  Thus, following the 1977 Sub-Commission Study by Francesco Capotorti on The Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities ^[16] , a working group was set up to draft the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities ^[17] , which was adopted by the General Assembly in 1992 and led to the establishment of the Sub-Commission's Working Group on Minorities.

In the wake of "ethnic cleansing" in the former Yugoslavia, the Sub-Commission decided to undertake a study on the human rights dimensions of population transfers, including the implantation of settlers ^[18] .  In 1992 the Sub-Commission designated two of its members, Mr. Awn Shawkat Al-Khasawneh (Jordan) and Mr. Ribot Hatano (Japan), as Special Rapporteurs.  Their preliminary report had already found (E/CN.4/Sub.2/1993/17 and Corr.1)  forced population transfers were prima facie unlawful and violated important provisions of humanitarian law and human rights law vis à vis both the transferred and the receiving populations.  A progress report was submitted by Mr. Al Khasawneh in 1994 (E/CN.4/Sub.2/1994/18 and Corr.1).  In February 1997 an expert seminar was held in Geneva to assist the Rapporteur in preparing his final report, which Mr. Al Khasawneh submitted to the forty-ninth session of the Sub-Commission in July 1997 (E/CN.4/Sub.2/1997/23 and Corr.1).  In this report the fundamental human right to live and remain in one's homeland is affirmed as a prerequisite to the enjoyment of other rights. 

The report observes that "collective expulsions or population transfers usually target national, ethnic, religious or linguistic minorities and thus, prima facie, violate individual as well as collective rights contained in several important international human rights instruments, in particular the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Rights of the Child ... Specific rights which population transfers violate include the right to self-determination, the right to privacy, family life and home, the prohibition on forced labour, the right to work, the prohibition of arbitrary detention, including internment prior to expulsion, the right to nationality as well as the right of a child to a nationality, the right to property or peaceful enjoyment of possessions, the right to social security, and protection from incitement to racial hatred or religious intolerance." ^[19]

In its conclusion, the report emphasizes that forced population transfers not only violate international law and therefore engage State responsibility but also give rise to individual criminal liability. ^[20]

The report annexes a "Draft Declaration on Population Transfer and the Implantation of Settlers", which, like the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, should one day be adopted by the General Assembly.  Al Khasawneh's draft declaration has enormous relevance not only to ethnic cleansing but also to the phenomenon of internal displacement.  It is worth quoting a few key provisions:

Art. 4 stipulates that: "1.  Every person has the right to remain in peace, security and dignity in one's home, or on one's land and in one's country.  2. No person shall be compelled to leave his place of residence.  3. The displacement of the population or part thereof shall not be ordered, induced or carried out unless their safety or imperative military reasons so demand. All persons thus displaced shall be allowed to return to their homes, lands, or places of origin immediately upon cessation of the conditions which made their displacement imperative."

This article reflects the provisions of article 49 of the Fourth Geneva Convention, but its application does not depend on the existence of armed conflict.

Article 7 of the draft Declaration stipulates: "Population transfers or exchanges of population cannot be legalized by international agreement when they violate fundamental human rights norms or peremptory norms of international law."

This provision is of special importance, since it means that no State or group of States is above international law, that decisions cannot be taken to the detriment of populations, i.e. that the human rights of individuals and populations must not be frustrated even by an international agreement purporting to deny them their right to live and remain in their homeland.

 

Article 10 places certain obligations on all States:  "Where acts or omissions prohibited in the present Declaration are committed, the international community as a whole and individual States, are under an obligation: (a) not to recognize as legal the situation created by such acts; (b) in ongoing situations, to ensure the immediate cessation of the act and the reversal of the harmful consequences; (c) not to render aid, assistance or support, financial or otherwise, to the State which has committed or is committing such act in the maintaining or strengthening of the situation created by such act."

This provision is of broadest application, in that it imposes an obligation erga omnes not to connive at population transfers and not to recognize faits accomplis.

Internal Displacement

Population transfers do not always entail crossing international borders.  As a result of armed conflict in many countries of the world, some twenty-two million persons have been displaced and live as refugees within their own countries. ^[21]   In response to this challenge the United Nations has created the function of a Special Rapporteur for internally displaced persons.

Pursuant to a request of the UN Commission on Human Rights to develop an appropriate normative framework for the protection and assistance of the internally displaced, the Representative of the Secretary-General on Internally Displaced Persons, Mr. Francis Deng, prepared Guiding Principles on Internal Displacement in collaboration with international legal experts and in consultation with UN agencies and other organizations, international and regional, intergovernmental and non-governmental.  The Guiding Principles were submitted by Mr. Deng to the Commission on Human Rights at its fifty-fourth session in 1998 (UN document E/CN.4/1998/53/Add.2).  

Principle 6 stipulates:

"1. Every human being shall have he right to be protected against being arbitrarily displaced from his or her home or place of habitual residence.

2. The prohibition of arbitrary displacement includes displacement:

(a) when it is based on policies of apartheid, "ethnic cleansing" or similar practices aimed at/or resulting in altering the ethnic, religious or racial composition of the affected population;

(b) in situations of armed conflict, unless the security of the civilians involved or imperative miliary reasons so demand;

(c) in cases of large-scale development projects, which are not justified by compelling and overriding public interests;

(d) in cases of disaster, unless the safety and health of those affected requires their evacuation; and

(e) when it is used as a collective punishment."

Principles 28 to 30 relate to return, resettlement and reintegration.

On 27 April 1999 the United Nations Commission on Human Rights adopted Resolution 1999/47 "deploring practices of forced displacement, in particular 'ethnic cleansing' and the negative impact they constitute for the enjoyment of fundamental human rights by large groups of populations" and "recalling the relevant norms of international human rights instruments, international humanitarian law and refugee law, and recognizing that the protection of internally displaced persons has been strengthened by identifying, reaffirming and consolidating specific rights for their protection, in particular through the Guiding Principles on Internal Displacement."

Forced population transfers as an indictable offence today

It is interesting to note that the International Law Commission in its Draft Code on Crimes Against the Peace and Security of Mankind lists deportation or forcible transfer of population as a "crime against humanity" under article 18 and as a "war crime" under article 20.  The ILC commentary observes "that a crime of this nature could be committed not only in time of armed conflict but also in time of peace ...[Deportation] implies expulsion from the national territory, whereas the forcible transfer of population could occur wholly within the frontiers of one and the same State ... Transfers of population under the draft article meant transfers intended, for instance, to alter a territory's demographic composition for political, racial, religious or other reasons, or transfers made in an attempt to uproot a people from their ancestral lands. One member of the Commission was of the view that this crime could also come under the heading of genocide." ^[22]  

In the Statute of the International Criminal Court, adopted on 17 July 1998 by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, the States parties to the Statute agreed that "deportation or forcible transfer of population" constitutes crimes against humanity under article 7 (d), and that "unlawful deportation or transfer" constitutes war crimes under article 8 (vii); and in cases of armed conflict not of an international character: "(viii) ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand." ^[23]

  In 1995 the International Criminal Tribunal for the Former Yugoslavia  indicted the former Serb leader Radovan Karadzic and the Bosnian Serb military commander Ratko Mladic on counts of genocide and crimes against humanity.  Paragraph 19 of the indictment charges them with the "unlawful deportation and transfer of civilians".  Paragraph 25 specifically charges: "Thousands of Bosnian Muslims and Bosnian Croats from the areas of Vlasenica, Prijedor, Bosanski Samac, Brcko and Foco, among others, were systematically arrested and interned in detention facilities established and maintained by the Bosnian Serb military, police and their agents and thereafter unlawfully deported or transferred to locations inside and outside of the Republic of Bosnia and Herzegovina.  In addition, Bosnian Muslim and Bosnian Croat civilians, including women, children and elderly persons, were taken directly from their homes and eventually used in prisoner exchanges by Bosnian Serb military and police and their agents under the control and direction of Radovan Karadzic and Ratko Mladic.  These deportations and others were not conducted as evacuations for safety, military necessity or for any other lawful purpose and have, in conjunction with other actions directed against Bosnian Muslim and Bosnian Croat civilians, resulted in a significant reduction or elimination of Bosnian Muslims and Bosnian Croats in certain occupied regions." ^[24]

Admittedly, neither Karadzic nor Mladic have as yet been arrested and brought before the Tribunal.  However, it is clear that the offence of forcible population transfers is perceived by the international community as constituting an international crime for which political and military leaders are liable and for which there should be no impunity. The indictment of President Slobodan Milosevic on 27 May 1999 by the International Tribunal for the Former Yugoslavia leaves no doubt that the policy of ethnic cleansing in the province of Kosovo is criminal.  Whether or not President Milosevic is ever brought to trial, opinio juris condemns the expulsions of Kosovo-Albanians carried out by his government.

It is a sad commentary on the non-observance of the Geneva Conventions by some States parties engaged in "ethnic cleansing" that none of these States has been known to prosecute its own army commanders in connection with violations of article 49 of the Fourth Geneva Convention, which are listed as "grave breaches" in article 147 of the Convention and subject to an obligation to prosecute under article 146 of the Convention and article 85 of Protocol I of 1977.

II.  The prohibition of the Implantation of Settlers

 

Throughout history expansive governments have sought to foment their acquisition of territory not only by killing or pushing out the autochthonous population, but also by bringing its own settlers into the occupied territory. Essentially this is what colonialism means.

Surely when the Spanish and the British came to the shores of what they called America, neither the northern nor the southern continents qualified as terra nullius, since they were settled by millions of autochthonous peoples with their own cultures and civilizations. In South America the Spaniards imposed Christianity and the Spanish language on  the indigenous populations.  In North America, pursuant to the Anglo-Saxon policy of "manifest destiny", war was waged upon these populations, and their territories were occupied by white settlers.  One after another the formerly autochthonous lands were incorporated into the United States as new states of the Union.

During the twentieth century the practice of sending  settlers into foreign territory has not been abandoned.  In the 1940's the Soviet Union first deported hundreds of thousands of Estonians, Latvians and Lithuanians to Siberia and elsewhere and then settled millions of Russians and Ukrainians in the formerly independent Baltic States.  The demographic and consequently cultural and linguistic upheaval in the Baltic States was considerable:  in Latvia the population distribution became 52 % Latvian, 48% Russian, Belorussian, Ukrainian and other (in the capital Riga 36.5% Latvian) ^[25] ; in Estonia 60 % Estonian, 40% Russian and Ukrainian; in Lithuania 80% Lithuanian, 10% Russian, 10% Polish.

  

Thus far the only political leaders prosecuted and convicted for such colonizing practices have been the National Socialists at Nuremberg.  Count 3, section J of the indictment reads:

In certain occupied territories purportedly annexed to Germany the defendants methodically and pursuant to plan endeavoured to assimilate those territories politically, culturally, socially, and economically into the German Reich. The defendants endeavoured to obliterate the former national character of these territories. In pursuance of these plans and endeavours, the defendants forcibly deported inhabitants who were predominantly non-German and introduced thousands of German colonists." ^[26]

A further response of the international community to these crimes of demographic manipulation was to formulate a specific article in a Convention to prohibit such practices.  Paragraph 6 of Article 49 of the Fourth Geneva Red Cross Convention of 1949 stipulates:

"The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies".

In the commentary to this Convention the former Director of the Legal Department of the International Committee of the Red Cross, Jean Pictet,  observed that this clause was added at the XVIIth International Red Cross Conference in order to help "prevent a practice by certain Powers during the Second World War, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race." ^[27]

Similarly, in article 85, paragraph 4 (a) of Protocol I Additional to the Geneva Conventions, the States parties agreed to consider as a grave breach:

"the transfer by the occupying Power of parts of is own civilian population into the territory it occupies..."

    

Such prohibitions notwithstanding, the People=s Republic of China occupied Tibet in 1951, forced the Dalai Lama and some 100,000 Tibetans to flee in 1959 and conducted a concerted policy of settling large numbers of ethnic Chinese in the territory of Tibet, thus significantly altering the demographic and cultural composition of the country over the past fifty years ^[28] .

  According to Chinese statistics the Chinese population in the Tibet Autonomous Region numbered 81.217 in 1990, but other estimates place the figure at 300,000 ^[29] .  For all the Chinese-defined regions with Tibetan autonomous status, including the Tibet Autonomous Region, the total non-Tibetan population is estimated at 2.5 to 3 million.  By contrast, the Tibetan population of all regions is estimated at 4.34 million.    

This is why the Dalai Lama has stated: AThe demographic aggression against Tibet through a policy of population transfer continues unabated, escalating the marginalisation of the Tibetan people and the assimilation of the Tibetan way of life into the Chinese mainstream.@ ^[30]

Scott Leckie, a noted expert on Economic, Social and Cultural Rights, on the problem of evictions, and in particular on Tibet observes A...the Chinese government appears to have attempted to >re-engineer= Tibetan society and ways of living. Integral to that process has been the encouragement of Chinese settlements in Tibet and the use of housing policies as devices of social surveillance and control.  In a process which the authorities describe as improving housing conditions, the government has evicted several thousand Tibetans from their homes and torn down their houses, demolished monasteries and other public buildings...Until the early 1980s, the government of China had a programme to move Chinese settlers into Tibet under a policy called >Giving Help to Tibet= ^[31] .  Many Chinese soldiers, police, professionals, workers and economic migrants -- some displaced by development schemes in China itself -- have moved to the country. Now, Chinese people are encouraged to settle by generous incentives, ranging from double rates of pay to guaranteed housing...@ ^[32]

Following the UN partition of Palestine, a major exodus of some 700,000 Palestinian refugees took place between December 1947 and September 1949.  A second major flight took place in 1967 in conjunction with the Six-Day War when thousands of Palestinians fled the West Bank and Gaza Strip. ^[33]   Since 1967 Israel has established many Jewish settlements in the West Bank and Gaza and has developed large Jewish neighbourhoods in and around East Jerusalem.  Many of these settlements were built on lands that were the private property of Palestinians who fled or were forced to leave as a result of the fighting.

In the ILC's draft Code on Crimes Against the Peace and Security of Mankind we find two relevant provisions:

Article 18 condemns the implantation of settlers in occupied territory.  In ILC commentary observes that "establishing settlers in an occupied territory constitutes a particularly serious misuse of power, especially since such an act could involve the disguised intent to annex the occupied territory.  Changes to the demographic composition of an occupied territory seemed to the Commission to be such a serious act that it could echo the seriousness of genocide." ^[34]

Article 20, paragraph C (i), condemns "the transfer by the occupying power of a part of its own civilian population into the territory it occupies."

In a similar vein, the Statute of the International Criminal Court defines "war crimes" in article 8 to include, in cases of international armed conflict:

"(viii) the transfer, directly or indirectly, by the Occupying Power of parts of is 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."

These provisions already reflect the obligations of States parties to the Geneva Conventions of 1949 and to the 1977 Protocols, which impose an obligation to prosecute.  However, thus far governments engaged in implantation of settlers, and successor governments, have failed to bring the persons responsible before domestic courts.

III. REMEDIES AND MECHANISMS TO CLAIM THEM

Pursuant to the Latin maxim Ubi jus, ibi remedium, it is not enough to establish standards and enact laws.  It is imperative that law be translated into action by giving effective remedies to victims of violations of their rights.

In resolutions of the Security Council, General Assembly and the Commission on Human Rights the principal remedies ordered for victims of mass expulsion are (a) the right to return in safety and dignity and (b) the right to restitution.

With regard to the right to return to one=s homeland, the standards are clear.  Article 13 of the Universal Declaration on Human Rights, Article 12, paragraph 4, of the International Covenant on Civil and Political Rights, Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination affirm this right.

As early as December 1948 the United Nations General Assembly resolved that Palestinian refugees "wishing to return to their homes [in Israel] and live in peace with their neighbours should be permitted to do so at the earliest practicable date, and ... compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible." ^[35]

The same principle of ensuring the right of return was expressed by the General Assembly in connection with other mass expulsions.  Thus, after the Turkish invasion of Cyprus on 20 July 1974, the Assembly adopted resolution 3212 (XXIX) of 1 November 1974, considering that "all the refugees should return to their homes in safety and calls upon the parties concerned to undertake urgent measures to this end".  This was followed by Security Council Resolution 365 (1974) of 13 December 1974, endorsing the above GA Resolution and urging the parties to implement it as soon as possible.  In the absence of progress, the GA returned to the issue and adopted Resolution 3395 (XXX) on 20 November 1975 again calling upon "the parties concerned to undertake urgent measures to facilitate the voluntary return of all refugees to their homes in safety and to settle all other aspects of the refugee problem."  Again in GA resolution 253 (1983) >calling for ... the institution of urgent measures for the voluntary return of the refugees to their homes in safety= ^[36]   Furthermore, the 15 July 1992 >Set of Ideas on an Overall Framework Agreement on Cyprus=, formulated by the then U.N. Secretary-General Boutros Boutros-Ghali, provides for the right of all displaced persons to return to their former residences or to claim compensation.

Such language repeats itself in many more General Assembly and Security Council resolutions over the last twenty-five years concerning Cyprus.  Similarly, the United Nations Commission on Human Rights has remained seized of the question of "Human Rights in Cyprus"  and most recently adopted a decision affirming that "action required by previous resolutions of the Commission on the subject continue to remain operative, including the request to the Secretary-General to provide a report to the Commission regarding their implementation." (Decision 1999/103, 23 April 1999)

The same right of return of displaced persons is affirmed by the General Assembly and Security Council with regard to refugees and expellees from Afghanistan, the former Yugoslavia, Rwanda and Burundi.  Security Council Resolution 947 "affirms the right of all displaced persons to return voluntarily to their homes of origin in safety and dignity with the assistance of the international community." ^[37] In Resolution 1009 the Security Council applied this principle to the Serbs of the Krajina ^[38] and in Resolution 1019 reiterated the Council's demand that the government of Croatia "take urgent measures to put an end to violations of international humanitarian law" and "respect fully the rights of the local Serb population including their right to remain or return in safety" and called upon the government "to lift any time limits placed on the return of refugees to Croatia to reclaim their property". ^[39]    

The right to return of the Kosovo-Albanians has been demanded by the international community since the process of ethnic cleansing in Kosovo began.  In resolution 1244 of 10 June 1999, the UN Security Council reaffirmed "the right of all refugees and displaced persons to return to their homes in safety" and established an "international civil presence" with the responsibility, inter alia, of "assuring the safe and unimpeded return of all refugees and displaced persons to their homes in Kosovo."

 

This approach is also taken by Mr. Al Khasawneh in his final report and in the annexed draft Declaration:

Article 8 sets forth the remedies available to victims:  "Every person has the right to return voluntarily, and in safety and dignity, to the country of origin and, within it, to the place of origin or choice. The exercise of the right to return does not preclude the victim's right to adequate remedies, including restoration of properties of which they were deprived in connection with or as a result of population transfers, compensation for any property that cannot be restored to them, and any other reparations provided for in international Law."

As far as remedies for the victims, the Dayton Accords have provided in its annex VII for the right to return of the refugees to their places of origin.  Unfortunately, there has been only partial implementation of this section of the Dayton Accords.

The right to return and the right to restitution may be seen both as individual and as collective rights.  Individual rights are justiciable before regional and universal human rights bodies.

Thus with respect to the right to return of the Miskito Indians of Nicaragua, the Inter-American Commission on Human Rights affirmed their right to voluntary repatriation ^[40] .

 

With respect to the expulsion by Turkish forces of some 175,000 Cypriots of Greek ethnic origin from Northern Cyprus to Southern Cyprus in 1974, the Government of Cyprus has brought four inter-State actions against Turkey before the European Commission on Human Rights.  In its first decision the Commission found in 1976 that "the transportation of Greek Cypriots to other places, in particular the excursions within the territory controlled by the Turkish army, and the deportation of Greek Cypriots to the demarcation line ... constitute an interference with their private life, guaranteed in article 8(1) which cannot be justified on any ground under paragraph 8(2)." ^[41]   The Commission furthermore considered that the prevention of the physical possibility of the return of Greek Cypriots who had been driven out from their homes in the north of Cyprus amounts to an infringement of their right to respect of their homes as guaranteed in article 8(1).  The Commission further noted that the acts violating the Convention were directed exclusively against members of the Greek Cypriot community and concluded that Turkey had failed to secure the rights and freedoms set forth in the Convention without discrimination on the grounds of ethnic origin, race and religion as required by article 14 of the Convention. ^[42]

With regard to the right to the enjoyment of one's possessions, it is clear that all States parties to Protocol I to the European Convention are prohibited from confiscating private property on the basis of ethnic or religious discrimination. 

The most important judgment of the European Court to date was rendered on 18 December 1996 in the case Loizidou v. Turkey, in which the Court held that the right to property of Mrs. Loizidou, an expellee from Northern Cyprus, had been violated.  In a further judgment of 28 July 1998 the Court ordered restitution ^[43] .  By fifteen votes to two, the Court rejected Turkey's claim that Mrs. Loizidou had no entitlement to an award under article 50 of the Convention.  By fourteen votes to three it decided that the Turkey was obliged to pay to Mrs. Loizidou, within three months, 300,000 Cypriot pounds for pecuniary damage.  By thirteen votes to four the Court held that Turkey had to pay to Mrs. Loizidou 137,084 pounds for costs and expenses. 

While the judgment has not yet been implemented, it must be emphasized that decisions of the European Court are binding on Turkey pursuant to articles 52 (the judgment of the Court shall be final) and 53 (the High Contracting parties undertake to abide by the decision of the Court).  In the opinion of this author, article 54 which stipulates that >the judgment shall be transmitted to the Committee of Ministers which shall supervise its execution=, allows no discretion.  It is the Committee=s function to vindicate the credibility of the Court by ensuring prompt and effective compliance by States parties.

 

Individuals can also address themselves to the United Nations Human Rights Committee with complaints concerning violations of provisions of the International Covenant on Civil and Political Rights, including article 1, self-determination, article 6, the right to life, article 7, torture, article 9, security of person, article 12, freedom of movement, article 13, expulsion without due process, article 14, denial of a fair hearing, article 17, right to privacy, article 23, protection of the family, article 25, right to participation in the political process, article 26, right not be subject to discrimination, and article 27, rights of minorities.

Although the Covenant on Civil and Political Rights does not provide for a right to property, confiscations associated with population transfers would be necessarily incompatible with the Covenant as they are invariably of a collective and discriminatory nature and as such in violation of articles 14 and 26 of the Covenant.  Thus, in cases Simunek v. Czech Republic ^[44] and Adam v. Czech Republic ^[45] the Committee ordered that the State party provide compensation without discrimination.

Further cases are pending before the Human Rights Committee concerning the discriminatory confiscation of property in numerous States parties to the Optional Protocol.

 

 The procedure under the Optional Protocol to the Covenant on Civil and Political Rights, however, is not universal.  Only 95 out of the 144 States parties to the Covenant on Civil and Political Rights have recognized the competence of the Human Rights Committee to consider individual petitions.  And whereas Cyprus is a party both to the Covenant and to the Optional Protocol, Turkey is not a party to either treaty and no case can be brought to he Human Rights Committee under the Optional Protocol against Turkey.  On the other hand, Turkey is a party to the Convention against Torture and other Cruel and Degrading Treatment or Punishment, and cases concerning alleged torture and ill-treatment, also in connection with collective expulsions, could be brought against it.

Yet another Committee with competence to examine cases of  forced population transfer is the Committee on the Elimination of All Forms of Racial Discrimination.  Indeed, experience shows that collective expulsions are invariably based on discrimination, most frequently ethnic.  Unfortunately, only 28  countries have given the necessary declaration under article 14 of the Convention, recognizing the Competence of the Committee to examine such cases.  And while, for instance, Albania, Bosnia and Herzegovina, Burundi, Croatia, Rwanda, Turkey and Yugoslavia are all parties to the Convention, none of these States has given the declaration under article 14.

However, in cases of systematic violations of human rights, e.g. population transfers, there is another United Nations mechanism universally available.  Pursuant to the 1970 ECOSOC Resolution 1503 persons can submit petitions to the Sub-Commission on the Prevention of Discrimination and Protection of Minorities alleging a "consistent pattern of gross and reliably attested violations of human rights".  Mass expulsions would certainly fall within the scope of the Resolution, especially if they occurred subsequently to the adoption of the resolution in 1970.

 

In any event, it is important to recognize that existing decisions and judgments by universal and regional judicial and quasi-judicial bodies prove that forced population transfers are illegal and that the violation of the right to one's homeland is justiciable.  In order to vindicate this right it is appropriate for individuals and groups to bring more cases before the universal and regional bodies indicated above.

 

Undoing the long-term effects of the implantation of settlers

The principle ex injuria non oritur jus should not allow aggressors to create faits accomplis and to impose them on the international community merely by virtue of prescription or lapse of time.  An illegal occupation remains illegal, regardless how long the occupation has lasted.  A collective expulsion remains an internationally wrongful act, and its civil and penal consequences do not simply dissipate in thin air.  Indeed, crimes against humanity are not subject to any statute of limitations.

Victims of expulsion are entitled to return to their countries of origin, regardless of the time period elapsed.  The return of 250,000 Crimean Tatars to the Crimea 50 years after their expulsion is a case in point.

In April 1999 Georgia became the 41st member of the Council of Europe.  Among the conditions for its admission was Georgia's commitment to facilitate the return of some 300,000 ethnic Caucasians who had been deported from their homelands in Georgia in the year 1944. ^[46]  

The movement of the deported peoples of the former Soviet Union back to their homelands is a phenomenon that is creating law by practice, quite simply by forcing States to react to the clamouring force of the right to one's homeland.  Thus in May 1996 the United Nations High Commissioner for Refugees convened a conference in Geneva to address the problems of refugees, displaced persons, other forms of involuntary displacement and returnees in the countries of the Commonwealth of Independent States and relevant neighbouring States.  Several working groups were established thereunder, including a working group on voluntary repatriation and a working group on the formerly displaced peoples.  CIS Conference follow-ups have been held in Moscow in November 1998 and in Geneva in June 1999. 

The European Parliament has taken a similar approach.  Thus, on 15 April 1999 it adopted a resolution asking the Czech Republic to abrogate the ABenes Decrees@ of 1945 which ordered the denationalization, spoliation and expulsion of 3.5 million Sudeten Germans and half a million Magyars.  Paragraph 7 of the Resolution "urges the Czech Government, in the spirit of prior statements of President Havel, to abrogate laws and decrees of the years 1945 and 1946 with respect to the expulsion of ethnic groups from Czechoslovakia." ^[47] .

Similarly, the Austrian Parliament adopted a resolution on 19 May 1999 requesting the Austrian Government to prevail upon the Czech Government to repeal the Benes decrees on expulsion and expatriation.

The voluntary repatriation of an expelled population to its places of origin gives rise to serious logistical problems, which the international community with the help of inter-governmental organizations such as UNHCR and the International Organization for Migration can and should tackle.

 

An altogether different matter is the fate of settlers who were implanted in occupied territory.  On the one hand, according to the principle ex injuria non oriritur jus, illegal settlers should not be deemed to have gained a right to remain simply by virtue of the passage of time.  If article 49 of the Fourth Geneva Convention of 1949 means anything, they should be returned to their places of origin.  Otherwise the demographic manipulation intended by the aggressor would be irreversible.  On the other hand, it is obvious that settlers are fellow human beings with individual human rights and dignity.  Thus, for humanitarian considerations -- if not for legal reasons -- no one can propose a mass expulsion of the new settlers, many of whom may have been involuntarily resettled in the occupied territories.  Here it is imperative to seek solutions and compromises which are compatible with the provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination and the Declaration on the Rights of Persons belonging to national or ethnic, religious and linguistic minorities. ^[48]

A case in point is that of the millions of Russian and Ukrainian minorities residing today in the Baltic States.  Immediately following the independence of the Baltic States some politicians and journalists in those countries called for the return of their Russian and Ukrainian guests, often perceived as miliary occupants by the Baltic population, to their places of origin.  A problem arose in that many of those Russian and Ukrainian minorities had been living in the Baltic States for as long as 45 years and many had been born there. Concerned about the fate of the Russian and Ukrainian minorities in the Baltic states, the Russian Government asked the United Nations Secretary General to intercede.  Two missions were dispatched to Latvia (November 1992) ^[49] and Estonia (March 1993) ^[50] , entrusted with fact-finding and making recommendations.  While the Secretary General=s reports did not satisfy the Russian demands that the Russian-speaking minorities be granted citizenship in the States concerned, the reports were sensitive to the human rights and  individual fates of the members of the Russian-speaking minorities and did not propose any scheme for their repatriation to Russia, Belorussia and the Ukraine.  The approach taken was one of encouraging their integration, provided that they learn the language and respect the cultural identity of their host countries.

In the case of Northern Cyprus, the Turkish government has settled there some 100,000 Turks from Anatolia.  To the extent that over the past 25 years these settlers have married into Northern Cypriot families, their compulsory repatriation to Turkey would pose serious human rights concerns.  But perhaps the international community would endorse a scheme of voluntary repatriation, accompanied by appropriate incentives and assurances of housing and employment in Turkey. 

CONCLUSION

As demonstrated above, forced population transfers continue to occur, despite the fact that international legal norms and jurisprudence condemn the practice.

What is necessary is the machinery to ensure compliance with these norms and to grant effective remedies to the victims of forced population transfers.  A strong political will of the international community will be necessary to translate law into action and to make the phenomenon of population transfers a thing of the past.

Articles 7 and 8 of the Statute of the International Criminal Court give additional hope that this international crime will be prosecuted in the future.  However, 60 ratifications are required for the entry into force of the statute, and although 82 States have signed it, only two States have ratified it since July 1998.  Thus, it is not likely that an international criminal court will be operational in the next few years.

Courts, of course, serve not only a curative post hoc purpose, but they also have a preventive function to the extent that knowledge by political leaders that forced population transfers are indictable as crimes against humanity may prove a deterrent.

In the meantime the international community should take concrete measures to prevent the recurrence of forced population transfers and to provide remedies for victims of expulsion or displacement. 

International cooperation and solidarity are indispensable in ensuring compliance with international human rights norms and strict implementation of decisions of international courts and tribunals.  For instance, it is a matter of concern that the Loizidou v. Turkey Judgment of 29 July 1998 has not yet been implemented by the Turkish Government.  The credibility of the European Court of Human Rights is at stake when its judgments remain unimplemented.  It is in the interest of all members of the Council of Europe to ensure prompt and effective implementation.  In the absence of such implementation, the Council of Europe must decide what measures to adopt. 

More generally, it is necessary to ensure that enabling legislation is enacted in all countries to facilitate the implementation of decisions and judgments of regional and universal courts and tribunals.  Such decisions and judgments should be received into the domestic legal order and be executable in local courts.  In this way, a victim of violation of human rights would be able to get redress locally on the basis of international decisions.

It should also be possible to execute a judgment of the European Court of Human Rights in each and every State party to the European Convention on Human Rights.  Thus, a judgment against any member of the European Convention should be executable in every European jurisdiction subject to the European Convention of Human Rights.

 

In his final report to the United Nations Sub-Commission, Mr. Al Khasawneh makes an interesting recommendation that "The Sub-Commission should consider establishing a working group to monitor compliance with the declaration, in particular by developing early-warning and preventive mechanisms and coordinating advisory services and technical assistance, as required." ^[51]

Such a working group could be given the task of initiating and/or coordinating compensation schemes and could do the necessary preparatory work for the establishment of an International Claims Tribunal for Victims of Mass Expulsion.  Al Khasawneh further proposes that a Voluntary Fund be established to help the victims. ^[52]

Al Khasawneh's report was subsequently endorsed by the Commission on Human Rights and by the Economic and Social Council.  A further expert seminar is to take place in 1999 with a view to exploring the possibilities of implementing Al Khasawneh's recommendations and elevating the draft Declaration to ECOSOC and to the General Assembly.

Not surprisingly, Al Khasawneh's draft Declaration has been frequently quoted by political leaders of many countries as well as in academic circles.  Whereas it undoubtedly constitutes an important step forward in standard-setting, it is, however, "soft law".  Conceivably "hard law" in the form of a Protocol on the Right to One's Homeland could be added to the International Covenant on Civil and Political Rights, or a Convention on the Prevention and Punishment of the Crime of Mass Expulsion could be negotiated and adopted by the General Assembly.  But no declaration, protocol or convention can effectively ban the occurrence of ethnic cleansing, unless preventive strategies are developed and effective implementation machinery is in place.

Working Groups, Voluntary Funds and other mechanisms, however, do not simply "happen". It is necessary to do the necessary preparatory work and the necessary lobbying to persuade other experts and other delegations to endorse their establishment, always bearing in mind that the establishment of such mechanisms has financial implications. It cannot be absorbed, as in many UN resolutions provide "within existing resources."

Another important task consists in getting the UN subsidiary organs, specialized agencies as well as other intergovernmental organizations involved in implementing solutions.  Thus the Office of the High Commissioner for Human Rights should be called upon to help reestablish the rule of law in the homelands and to promote the norms established by the human rights treaties; the Office of the High Commissioner for Refugees should be called upon to assist in the voluntary repatriation of expellees and refugees, as it has done in many post conflict situations.  But even in cases of historical displacement, where the deportations took place during the Second World War, UNHCR has proven helpful in assisting in he integration of second and third generation Crimean Tatars, whose ancestors were deported en masse to Kazakhstan and Siberia in 1944 ^[53] .  The successful return of more than 250,000 Crimean Tatars to their homeland in the Crimea gives hope to all other displaced peoples who still dream of returning to their homelands.  In this context the help of other intergovernmental organizations such as the International Organization for Migration should be sought.

 

Selected Bibliography

Reports of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities concerning the human rights dimensions of population transfers and the implantation of settlers:

E/CN.4/Sub.2/1993/17 and Corr. 1

E/CN.4/Sub.2/1994/18 and Corr. 1

E/CH.4/Sub.2/1997/23 and Corr. 1

Resolutions of the United Nations Sub-Commission:

1992/28

1994/24

1995/13

1996/9

1997/29, 30 and 31

1998/26

Sub-Commission on Prevention of Discrimination and Protection of Minorities, Revised set of basic principles and guidelines on the right to reparation for victims of gross violations of human rights and humanitarian law, prepared by Mr. Theo van Boven pursuant to Sub-Commission decision 1995/117 (E/CN.4/Sub.2/1996/17).

Internally Displaced Persons: Report of the Special Representative of the Secretary-General, Mr. Francis Deng, Submitted pursuant to Commission on Human Rights Resolution 1995/57, UN Doc. E/CN.4/1996/52 and Add 2, Conclusions of the Compilation and Analysis of Legal Norms, 22 February 1996.

The Right to Return of the Palestinian People, United Nations Publication, ST/SG/SER.F/2 (1978).

Set of Ideas on an Overall Framework Agreement on Cyprus, Report of the Secretary-General to the Security Council, U.N. Doc. S/24472 (1992).

International Committee of the Red Cross, Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949.

Jean Pictet (ed.), Commentary to the Fourth Geneva Convention of 1949, Geneva 1958.

Bassiouni, M. Cherif (ed.), The Statute of the International Criminal Court. A Documentary History, Transnational Publishers, New York, 1998.

Bornträger, Ekkehard, Ethnos. Borders, Ethnicitz and National Self-determination, Baumüller Verlag, Vienna, 1999.

Bramwell, Anna (ed), Refugees in the Age of Total War, Unwinn Hyman, London, 1988.

Brolmann, Caherine et al. (eds.) Peoples and Minorities in International Law, Martinus Nijhoff Publishers, Dordrecht, 1993.

Capotorti, Francesco, Study on the Rights of Pereons belonging to Ethnic, Religious and Linguistic Minorities, U.N.Sales No. E.91.XIV.2 (1991).

Conquest, Robert, The Nation Killers. The Soviet Deportation of Nationalities, Macmillan, London, 1970.

Deng, Francis, Protecting the Dispossessed: A Challenge for the International Community, The Brookings Institution, Washington, D.C., 1993.

Deng, Francis, "Internally Displaced Persons", International Journal of Refugee Law, vol. 6, 1994.

Dieng, Adama, "Addressing the Root Causes of Forced Population Displacements in Africa: A Theoretical Model",  International Journal of Refugee Law, special issue, Oxford, 1995.

Forced Migration Project, Crimean Tatars: Repatriation and Conflict Prevention, Open Society Institute, New York, 1996.

Henckaerts, Jean-Marie: Mass Expulsion in Modern International Law and Practice, Martinus Nijhoff Publishers, The Hague, 1995.

Boudreault, Jody et al.(eds.), AU.S. Official Statements. Israeli Settlements. The Fourth Geneva Convention@, Institute for Palestine Studies, Washington, D.C., 1993.

International Law Association, Declaration of Principles of International Law on Mass Expulsion, Report of the Sixty-Second Conference held at Seoul, August 1986.

Falah, Ghazi, AIsraeli >Judaization= Policy in Galilee@. Journal of Palestine Studies, vol. XX, no. 4, Summer 1991, pp. 69-85.

Goodwin-Gill, Guy, International Law and the Movement of Persons between States, Oxford, 1978.

Greenwood, Christopher, “Unrecognized States and the European Court@, The Cambridge Law Journal, 1995, pp. 4 et seq.

Jiryis, Sabri, ASettlers= Law: Seizure of Palestinian Lands@, in Palestine Yearbook of International Law, Vol. II (1985), pp. 17-36.

Joseph S. Joseph, ACyprus at the Threshold of the European Union@, Mediterranean Quarterly, vol. 7, 1996, pp. 112-122.

Kaufmann, Chaim, When All Else Fails: Ethnic Population Transfers and Partitions in the Twentieth Century, International Security, Vol. 23, (1998) pp. 120-156.

Khalidi, Walid (ed.), All That Remains. The Palestinian Villages Occupied and Depopulated by Israel in 1948., Institute for Palestine Studies, Washington, D.C., 1992.

Kimminich, Otto, Das Recht auf die Heimat, Bonn, 1978.

Kliot, Nurit and Yoeal Mansfeld, AResettling displaced People in North and South Cyprus@, Journal of Refugee Studies, Vo. 7, 1994, pp. 328-359.

Kolodner, Eric, APopulation Transfer: The effects of Settler Infusion Policies on a Host Population=s Right to Self-Determination@, in New York University Journal of International Law and Politics, Vol. 27, Fall 1994, pp. 159-226.

 

Leckie, Scott, AHousing as Social Control in Tibet@, The Ecologist, Vo. 25, 1995, pp. 8-15.

Leckie, Scott, Destruction by Design. Housing Rights Violations in Tibet. Centre on Housing Rights and Evictions (COHRE), The Netherlands, February 1994.

Masalha, Nur, Expulsion of the Palestinians. Institute for Palestine Studies, Washington, D.C., 1992.

Meindersma, Christa, "Legal Issues Surrounding Population Transfers in Conflict Situations", Netherlands International Law Review, Vol. 41 (1994) pp. 31-83.

Morris, Benny, 1948 and After. Israel and the Palestinians, Oxford, 1990.

Nowak, Manfred, U.N. Covenant on Civil and Political Rights: CCPR Commentary, Kehl am Rhein: N.P. Engel Publishers, 1993.

Palley, Claire, "Population Transfer and International Law", in Gomien, Donna (ed.), Broadening the Frontiers of Human Rights:  Essays in Honour of Asbjorn Eide, Oslo, 1993, pp. 219 et seq.

Polyviou, Polyvios, Cyprus. Conflict and Negotiation 1960-1980, Duckworth, London, 1980.

 

Quigley, John, "Mass Displacement and the Individual Right to Return" in The British Yearbook of International Law, 1997. 

Radley, Kurt, "The Palestinian Refugees: The Right to Return in International Law", 72 American Journal of International Law, pp. 586 et seq. (1978).

 

Rishmawi, Mona, APlanning in Whose Interest?: Land Use Planning as a Strategy for Judaization@ in Journal of Palestine Studies, Vol. XVI, Winter 1987, pp. 105-116.

Eric Rosand, "The Right to Return under International Law Following Mass Dislocation: the Bosnia Precedent?" in Michigan Journal of International Law, vol. 19, 1998, pp. 1091-1139.

Schechla, Joseph, "Ideological Roots of Population Transfer", Third World Quarterly, Vol. 14 (1993) pp. 239-275. 

Schechtman, Joseph, European Population Transfers, New York, 1946.

Schechtman, Joseph, Population Transfer in Asia, New York, 1949.

Schieder, Theodor et al. (eds.), Dokumentation der Vertreibung der Deutschen aus dem Osten, Bd. 1-5, Bonn 1953-61.

Stavropoulou, Maria, "The Right not to be displaced", American University Journal of International Law and Policy, vol. 9, 1994, p. 689 et seq.

Stavropoulou, Maria, "Displacement and Human Rights: Reflections on UN Practice, Human Rights Quarterly, Vol. 20, 515-554.

Theophanous, Andreas and van Coufoudakis (eds.) Security and Cooperation in the Eastern Mediterranean, Intercolege Press, Nicosia, 1997.

Tibet Support Group UK, New Majority. Chinese Population Transfer into Tibet", London 1995.

Theophylactou, Demetrios, AA >German Solution= for Cyprus= Reunification or United Nations >Enforcement= of Peace?@ in Mediterranean Quarterly, Vol. 6, 1995, pp.39-51.

Tomuschat, Christian, "Das Recht auf die Heimat: Neue rechtliche Aspeke" in J. Jekewitz (ed.), Des Menschen Recht zwischen Freiheit und Verantwortung. Festschrift fur Karl Josef Partsch (1989), pp. 183-212.

Van Nuffel, Piet, "The Story of the Israeli Settlements in the West Bank as it is told in International Law", in The Military Law and Law of War Review, vol. XXXIII (1994), pp. 353-396.

Van Walt van Praag, Michael, The Status of Tibet: History, Rights and Prospects in International Law, Westview Press, Boulder, Colorado,1987.

de Zayas, Alfred, "International Law and Mass Population Transfers" Harvard International Law Journal, Vol. 16 (1975), pp. 207-258.

"The Illegality of Population Transfers and the Application of Emerging International Norms in the Palestinian Context", the Palestine Yearbook of International Law, Vol. 6 (1990/91) pp. 17-55.

AA Survey of Twentieth Century Expulsions@ in Anna Bramwell (ed.) Refugees in the Age of Total War, Oxford, 1988, pp. 14 et seq.

Nemesis at Potsdam, Picton Press, Rockport, Maine, 4th ed. 1998.

A Terrible Revenge, St. Martin's Press, New York, 3rd ed. 1994.

"The Right to One's Homeland, Ethnic Cleansing and the International Criminal Tribunal for the Former Yugoslavia," Criminal Law Forum, Vol. 6 (1995) pp. 257-314.

"Forced Resettlement", in R. Bernhardt (ed.), Encyclopaedia of Public International Law, Vol. 2, 1995, pp. 422 et seq.;

"Population, Expulsion and Transfer", in Vol. 3, 1997, pp. 1062 et seq.; "Repatriation", in vol. 4, 1999, pp.

Zetter, Roger, AThe Greek-Cypriot Refugees: Perceptions of return under Conditions of Protracted Exile@, International Migration Review, vol. XXVIII, Summer 1994, pp. 307 et seq.

Zieck, Marjoleine, UNHCR and Voluntary Repatriation of Refugees.  A Legal Analysis.  Martinus Nijhoff Publishers, The Hague, 1997.   

ANNEX I

STATEMENT BY THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS TO THE GERMAN EXPELLEES AT THE CEREMONY HELD AT THE PAULSKIRCHE, FRANKFURT, ON 28 MAY 1995 ON OCCASION OF THE FIFTIETH ANNIVERSARY OF THE EXPULSION OF 15 MILLION ETHNIC GERMANS FROM EASTERN AND CENTRAL EUROPE, 1945-48

At this historic Church of St. Paul many have already spoken about human rights and democracy.  This is good, because our commitment to the dignitas humana needs reaffirmation everywhere and on every occasion.

Fifty years after the end of the Second World War, we see that new wars and grave human rights violations continue to take their toll in lives, cause major refugee movements, deprive men and women of their rights and render them homeless.

Also fifty years ago the United Nations Organization was founded with the noble aims of maintaining international peace and security and promoting and protecting human rights throughout the world.  The Organization has worked hard, achieved many successes, but also experienced serious disappointments.  The United Nations and I myself as High Commissioner for Human Rights will devote all of our energies to make these goals reality.

Over the past fifty years the General Assembly has adopted inter alia the Universal Declaration of Human Rights, the Covenant on Civil and Political Rights, the Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of all Forms of Racial Discrimination, and the Convention against Torture.  In this perspective, it is clear that ethnic cleansing, expulsion and involuntary transfers of population violate many of the fundamental human rights enshrined in these Conventions.

The right not to be expelled from one's homeland is a fundamental right.  The Sub-Commission on Prevention of Discrimination and Protection of Minorities is currently seized of the question of the human rights dimensions of population transfers. The newest report of Special Rapporteur Awn Shawkat Al-Khasawneh concludes that population transfers violate the human rights of both transferred and receiving populations (E/CN.4/Sub.2/1994/18).

The United Nations International Law Commission is also currently examining this important question.  In Article 21 of the Draft Code of Crimes against the Peace and Security of Mankind the expulsion of persons from their homeland is referred to as a gross and systematic violation of human rights and as an international crime.  In Article 22 of the Code population expulsions and collective punishments against the civilian population are listed among the gravest war crimes.

The most recent statement of the United Nations on the Right to the homeland was given on 26 August 1994 by the Sub-Commission, which in its Resolution 1994/24 affirmed the right of persons to remain in peace in their own homes, on their own lands and in their own countries.  Moreover, the Resolution affirms the right of refugees and displaced persons to return in safety and dignity, to their country of origin.

I submit that if in the years following the Second World War the States had reflected more on the implications of the enforced flight and the expulsion of the Germans, today's demographic catastrophes, particularly those referred to as "ethnic cleansing", would, perhaps, not have occurred to the same extent.

In this context I should like to refer to the Charter of the German Expellees.  It is good that men and women who have suffered injustice are prepared to break the vicious circle of revenge and reprisals and devote themselves in peaceful ways to seek the recognition of the right to the homeland and work toward reconstruction and integration in Europe.  One day this peaceful approach will receive the recognition it deserves.

There is no doubt that during the Nazi occupation the peoples of Central and Eastern Europe suffered enormous injustices that cannot be forgotten.  Accordingly they had a legitimate claim for reparation.  However, legitimate claims ought not to be enforced through collective punishment on the basis of general discrimination and without a determination of personal guilt.  In the Nuremberg and Tokyo trials the crucial principle of personal responsibility for crimes was wisely applied.   It is worth while to reread the Nuremberg protocols and judgment.

Our goal remains the universal recognition of human rights, which are based on the principle of the equality of all human beings.  Indeed, all victims of war and injustice deserve our respect and compassion, since every individual human life is precious.  It is our duty to continue our endeavours in the name of the dignitas humana.

Jose Ayala Lasso

High Commissioner for Human Rights

Paulskirche, 28 May 1995

The German version of this statement was published by Professor Dieter Blumenwitz (ed.) in:  Dokumentation der Gedenkstunde in der Paulskirche zu Frankfurt am 28 Mai 1955: 50 Jahre Flucht, Deportation Vertreibung, Bonn, 1995, pp. 4-5.  Quoted in "Lob für Charta der Vertriebenen", Frankfurter Allgemeine Zeitung 27 May 1995, p. 5.

ANNEX II

Draft Declaration on Population Transfers and on the Implantation of Settlers ^[54]

Article 1

This Declaration sets standards which are applicable in all situations, including peace-time, disturbances and tensions, internal violence, internal armed conflict, mixed internal-international armed conflict, international armed conflict and public emergency situations.  The norms contained in this Declaration must be respected under all circumstances.

Article 2

These norms shall be respected by, and are applicable to all persons, groups and authorities, irrespective of their legal status.

Article 3

Unlawful population transfers entail 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.

Article 4

1.  Every person has the right to remain in peace, security and dignity in one's home, or one's land and in one's country.

2.  No person shall be compelled to leave his place of residence.

3. The displacement of the population or parts thereof shall not be ordered, induced or carried out unless their safety or imperative military reasons, so demand.  All persons thus displaced shall be allowed to return to their homes, lands, or places of origin immediately upon cessation of the conditions which made their displacement imperative.

Article 5

The settlement, by transfer or inducement, by the Occupying Power of parts of its own civilian population into the territory it occupies or by the power exercising de facto control over a disputed territory is unlawful.

Article 6

Practices and policies having the purpose or effect of changing the demographic composition of the region in which a national, ethnic, linguistic, or other minority or an indigenous population is residing, whether by deportation, displacement, and/or the implantation of settlers, or a combination thereof, are unlawful.

Article 7

Population transfers or exchanges of population cannot be legalized by international agreement when they violate fundamental human rights norms or peremptory norms of international law.

Article 8 

Every person has the right to return voluntarily, and in safety and dignity, to the country of origin and, within it, to the place of origin or choice.  The exercise of the right to return does not preclude the victim's right to adequate remedies, including restoration of properties of which they were deprived in connection with or as a result of population transfers, compensation for any property that cannot be restored to them, and any other reparations provided for in international law.

Article 9

The above practices of population transfers constitute internationally wrongful acts giving rise to State responsibility and to individual criminal liability.

Article 10

Where acts or omissions prohibited in the present Declaration are committed, the international community as a whole, and individual States, are under an obligation:  a) not to recognise as legal the situation created by such acts; b) in ongoing situations, to ensure the immediate cessation of the act and the reversal of the harmful consequences; c) not to render aid, assistance or support, financial or otherwise, to the State which has committed or is committing such act in the maintaining or strengthening of the situation created by such act.

Article 11

States shall adopt measures aimed at preventing the occurrence of population transfers and the implantation of settlers, including the prohibition of incitement to racial, religious or linguistic hatred.

Article 12

Nothing in these articles shall be construed as affecting the legal status of any authorities, groups or persons involved in situations or internal violence, disturbances tensions or public emergency.

Article 13

1. Nothing in these articles shall be construed to restrict or impair the provisions of any international humanitarian or human rights instruments;

2.  In case of different norms applicable to the same situation, the standard offering maximum protection to persons and groups subjected to population transfers, shall prevail