Deportation

Notion(s) Filing Case
Appeal Judgement - 22.03.2006 STAKIĆ Milomir
(IT-97-24-A)

The Appeals Chamber addressed in details the elements of the crime of deportation as a crime against humanity, and especially (1) the forced character of the displacement, (2) the cross border transfer, and (3) whether or not there is a requirement of an intent to permanently displace the victims of deportation. It held:

278. The Appeals Chamber is of the view that the actus reus of deportation is the forced displacement of persons by expulsion or other forms of coercion from the area in which they are lawfully present, across a de jure state border or, in certain circumstances, a de facto border, without grounds permitted under international law. The Appeals Chamber considers that the mens rea of the offence does not require that the perpetrator intend to displace the individual across the border on a permanent basis.

The Appeals Chamber explained in details its reasoning to reach the above findings at paras 279-307 of the Judgement. Attention is however drawn to the following passages:

-          Forced character of the displacement (paras 279-287): see also above under “new law”, “Deportation/displacement for humanitarian reasons;

-          Cross-border transfer: “The Appeals Chamber also accepts that under certain circumstances displacement across a de facto border may be sufficient to amount to deportation. In general, the question whether a particular de facto border is sufficient for the purposes of the crime of deportation should be examined on a case by case basis in light of customary international law.” (Judgement, para. 300);

-          Intent to permanently displace the victims: paras 304-307 “[…] Trial Chambers will not require proof of intent to permanently displace deportees.” (Judgement, para. 307).

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ICTR Statute Article 3(d) ICTY Statute Article 5(d)
Notion(s) Filing Case
Appeal Judgement - 27.01.2014 ĐORĐEVIĆ Vlastimir
(IT-05-87/1-A)

533. The Appeals Chamber observes that the Trial Chamber recognised the territorial sovereignty of the FRY and the lack of a de jure border between Montenegro and Kosovo.[1] In reaching its conclusion that a de facto border existed between Montenegro and Kosovo, the Trial Chamber considered: (i) the degree of autonomy enjoyed by Kosovo; (ii) Montenegro’s status as a republic within the FRY; and (iii) the existence of “an armed conflict between forces of the FRY and Serbia on one hand and the KLA on the other”.[2] The Trial Chamber also considered that the displacement of Kosovo Albanians from Kosovo to Montenegro would have the same effect of “serious hardship” as the displacement across a state border, and that the displacement of Kosovo Albanians out of Kosovo would have made it easier for FRY and Serbian authorities to control Kosovo.[3]

534. However, in finding that a de facto border existed between Montenegro and Kosovo, the Trial Chamber failed to articulate the basis in customary international law upon which it found that a de facto border could be established in these circumstances.[4] The Appeals Chamber considers this to constitute an error of law. Consequently, the Appeals Chamber will assess whether, in light of customary international law, the circumstances of this case support the finding that a de facto border existed within the territory of the FRY, between Kosovo and Montenegro. 

535. The Appeals Chamber in Stakić previously undertook a survey of customary international law pertaining to the crime of deportation. The various sources considered in Stakić, however, do not provide any examples of an instance in which a displacement of persons from an autonomous region within a federal state to another republic within the same federal state constituted deportation.[5] Additional studies of customary international law regarding the crime of deportation were also undertaken in Judge Schomburg’s Partly Dissenting Opinion in the Naletilić and Martinović Appeal Judgement and Judge Shahabuddeen’s Partly Dissenting Opinion in the Stakić Appeal Judgement.[6] The authorities cited in these opinions, however, also do not address the issue of forcible displacement of individuals within the confines of a sovereign state by the government of that state but, instead, involve the presence of an occupying power or a contested border between two states.[7] The Appeals Chamber observes that the presence of an occupying power or of a contested border between states is not at issue in the present case.[8] The Appeals Chamber has found no support in customary international law for the proposition that a de facto border can be found within the confines of a sovereign state even where a certain degree of autonomy is exercised by portions of that state. Accordingly, the Trial Chamber’s finding that a de facto border existed based on the degree of autonomy enjoyed by Kosovo’s or Montenegro’s status as a republic within the state of the FRY finds no support in customary international law.[9]

536. In addition, the other factors considered by the Trial Chamber do not support a finding on the existence of a de facto border in customary international law. The Appeals Chamber does not intend to diminish the importance of the “serious hardship”[10] placed upon Kosovo Albanians forcibly displaced from Kosovo to Montenegro, as considered by the Trial Chamber, nor does it deny the presence of an armed conflict or the conclusion by the Trial Chamber that the displacement of Kosovo Albanians from Kosovo would have made it easier for FRY and Serbian authorities to control Kosovo.[11] However, the Appeals Chamber finds no basis in customary international law, including in any of the materials considered by the Stakić Appeal Judgement or in the Partly Dissenting Opinions of Judge Schomburg and Judge Shahabuddeen, to infer the presence of a de facto border in these circumstances.[12]

[1]  See Trial Judgement, para. 1683.

[2]  Trial Judgement, para. 1683.

[3]  Trial Judgement, para. 1683.

[4]  Trial Judgement, para. 1683. See Stakić Appeal Judgement, para. 300.

[5] See Stakić Appeal Judgement, paras 290-302. The Appeals Chamber instead defined a de facto border in the negative, concluding that “constantly changing frontlines […] are neither de jure state borders nor the de facto borders of occupied territory, either of which would automatically be sufficient to amount to deportation under customary international law” (Stakić Appeal Judgement, para. 301) (citations omitted).

[6]  See Naletilić and Martinović Appeal Judgement, Separate and Partly Dissenting Opinion of Judge Schomburg, paras 3-33; Stakić Appeal Judgement, Partly Dissenting Opinion of Judge Shahabuddeen, paras 19-76.

[7]  See Naletilić and Martinović Appeal Judgement, Separate and Partly Dissenting Opinion of Judge Schomburg, para. 12, citing the RuSHA case [The United States of America v. Greifelt et al., U.S. Military Tribunal, Judgement, 10 March 1948, Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 (1951), Vol. V], pp 126-127, 139. The Appeals Chamber further observes that Judge Shahabuddeen, in his Partly Dissenting Opinion, refers to the Cyprus v. Turkey case to suggest that the crossing of a front line could constitute deportation within customary international law (Stakić Appeal Judgement, Partly Dissenting Opinion of Judge Shahabuddeen, para. 23, citing Cyprus v. Turkey, European Commission of Human Rights, European Human Rights Reports, Vol. 4 (1982), pp 482-528 (“Cyprus v. Turkey case”), p. 520). The Cyprus v. Turkey case, however, also involves occupying forces which distinguishes it from the present case (see Stakić Appeal Judgement, Partly Dissenting Opinion of Judge Shahabuddeen, para. 23).

[8]  See Trial Judgement, para. 1683.

[9]  See Trial Judgement, para. 1683.

[10]  Trial Judgement, para. 1683.

[11] See Trial Judgement, para. 1683.

[12]  See supra, para. 535.

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Notion(s) Filing Case
Appeal Judgement - 17.03.2009 KRAJIŠNIK Momčilo
(IT-00-39-A)

304. The Appeals Chamber has held “that the actus reus of deportation is the forced displacement of persons by expulsion or other forms of coercion from the area in which they are lawfully present, across a de jure state border or, in certain circumstances, a de facto border, without grounds permitted under international law”[1] and that the mens rea of that crime does not require an intention to displace the persons across the border on a permanent basis.[2] The Trial Chamber correctly identified the applicable law on deportation.[3]

305. […] As conceded by the Prosecution,[4] in finding that deportation had occurred in several municipalities, the Trial Chamber did not examine whether the forced displacement occurred across a de facto border such that the displacement amounted to deportation. Thus, if any finding of deportation is to be maintained, it is on the basis that the displacement occurred across a de jure state border. Therefore, the Appeals Chamber refrains from deciding this question.

[1] Stakić Appeal Judgement, para. 278. See also para. 300, which adds that “[c]ustomary international law also recognises that displacement from ‘occupied territory’, as expressly set out in Article 49 of Geneva Convention IV and as recognised by numerous Security Council Resolutions, is also sufficient to amount to deportation” (footnotes omitted).

[2] Stakić Appeal Judgement, paras 278, 307; Brđanin Appeal Judgement, para. 206.

[3] Trial Judgement, paras 722-726.

[4] Prosecution’s Response to Amicus Curiae, paras 127, 135-139. 

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Notion(s) Filing Case
Appeal Judgement - 03.05.2006 NALETILIĆ & MARTINOVIĆ
(IT-98-34-A)

Paras 152-154: the Appeals Chamber found that there is no occasion in this case to define the elements of deportation as a crime against humanity under Article 5(d) of the Statute, because the Indictment included no charges under that Article. It also saw no need to consider the issue as a matter of general significance to the International Tribunal’s jurisprudence, as it had already been settled in the Stakić Appeal Judgement.[1]

Regarding deportation as a form of persecutions under Article 5(h) of the Statute, the Appeals Chamber referred to the Krnojelac Appeal Judgement, para. 218: for the purposes of persecutions, it is irrelevant whether “deportation” encompasses a border element, because acts of “forcible displacement” are equally punishable as underlying acts of persecutions whether or not a border is crossed. “Forcible displacement” also sufficiently captures underlying acts of “deportation” and “forcible transfer” (para. 154):

[…] the question whether “deportation” encompasses a border element is irrelevant for the purposes of liability under Article 5(h) of the Statute, because acts of forcible displacement are equally punishable as underlying acts of persecutions whether or not a border is crossed. It is moreover not necessary, for the purposes of a persecutions conviction, to distinguish between the underlying acts of “deportation” and “forcible transfer”; the criminal responsibility of the accused is sufficiently captured by the general concept of forcible displacement.

[1] Stakić Appeal Judgement, paras 274-308.

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ICTR Statute Article 3(h) ICTY Statute Article 5(h)
Notion(s) Filing Case
Appeal Judgement - 30.06.2016 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

918. In addition, Župljanin’s argument that the Trial Chamber was required to find that he intended coercive acts under the first category of joint criminal enterprise because the actus reus of the JCE I Crimes requires that the act inducing the departure be criminal, finds no support in the jurisprudence of the Tribunal. […] Contrary to Župljanin’s unreferenced assertion, the jurisprudence of the Tribunal does not require that persons be displaced as a result of criminal acts.[1]

[1] In relation to Župljanin’s argument that measures authorised or permitted under the law of armed conflict, such as a lawful and legitimate attack on a village, do not satisfy the actus reus of forcible transfer (Župljanin Appeal Brief [Stojan [Ž]]upljanin’s Appeal Brief, 19 August 2013 (confidential; public redacted version filed on 23 August 2013, re-filed on 21 April 2016)]], para. 8.), the Appeals Chamber observes that Župljanin does not point to any evidence to suggest that the displacements in this case were justified under international humanitarian law. The Appeals Chamber therefore dismisses Župljanin’s argument as undeveloped and demonstrating no error.

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Notion(s) Filing Case
Appeal Judgement - 17.03.2009 KRAJIŠNIK Momčilo
(IT-00-39-A)

388. Addressing the more specific issue of intra-Article 5 cumulative convictions, the Kordić and Čerkez Appeal Judgement ruled that a correct application of the Čelebići test required “an examination, as a matter of law, of the elements of each offence in the Statute that pertain to that conduct for which the accused has been convicted.” Based on this reasoning, the Appeals Chamber admitted that convictions for the crimes against humanity of persecution on the one hand, and murder, other inhumane acts and imprisonment on the other hand, could be cumulated, since all of these offences contained “an element that requires proof of a fact not required by the other[s]”.[1]

389. In the instant case, Amicus Curiae alleges that the Kordić and Čerkez Appeal Judgement is an incorrect application of the Čelebići test and should therefore not be used as a precedent. The Appeals Chamber cannot agree with this interpretation. While prior jurisprudence adopted another point of view,[2] in the Kordić and Čerkez Appeal Judgement the Appeals Chamber clearly explained the reasons that warranted the departure from previous cases.[3] Subsequent appeal judgements in the Stakić, Naletilić and Martinović and Nahimana et al. cases confirmed the approach adopted in Kordić and Čerkez.[4] The Appeals Chamber therefore sees no cogent reason to depart from the current jurisprudence with respect to intra-Article 5 cumulative convictions.

390. In the Trial Judgement, the Trial Chamber determined that:

[p]ersecution as a crime against humanity has a materially distinct element from murder as a crime against humanity in that persecution requires proof that an act or omission discriminates in fact, and proof that the act or omission was committed with specific intent to discriminate. Conversely, murder as a crime against humanity requires proof that the accused caused the victim’s death, which is not an element required for proof of persecution. As a result, a cumulative conviction for persecution and murder under Article 5 of the Statute is permissible. The same reasoning applies to extermination, deportation, and forced transfer as an inhumane act.[5]

391. The Appeals Chamber, by majority, Judge Güney dissenting,[6] considers that this is a correct application of the law on cumulative convictions. Therefore, the Trial Chamber did not err in cumulating the conviction for persecution as a crime against humanity with the convictions for the crimes against humanity of murder, extermination, deportation and inhumane acts (forcible transfer). This ground of appeal is dismissed.

[1] Kordić and Čerkez Appeal Judgement, paras 1040-1043.

[2] See Krstić Appeal Judgement, paras 230-233; Vasiljević Appeal Judgement, paras 144-146; Krnojelac Appeal Judgement, para. 188.

[3] Kordić and Čerkez Appeal Judgement, para. 1040.

[4] See Nahimana et al. Appeal Judgement, paras 1026-1027; Naletilić and Martinović Appeal Judgement, paras 587-591; Stakić Appeal Judgement, paras 355-367.

[5] Trial Judgement, para. 1130.

[6] See Nahimana et al. Appeal Judgement, Partly Dissenting Opinion of Judge Güney, para. 5.

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ICTR Statute Article 3 ICTY Statute Article 5