International humanitarian law is currently on trial amidst Russia-Ukraine War. Only the post-war independent investigations will ascertain whether humanitarian law stood its ground or cowered. Be that as it may, Russia, has been accused, amongst other things, of transferring parts of its own civilian population into the occupied territory of Ukraine during the current war and even post-annexation of Crimea in 2014.1 Similarly, a much debated and criticised part of Israel-Palestine conflict pertains to the continuous and entirely illegal policy of settlements carried out by successive Israeli Governments since the country’s inception.2Since the end of 1967 Israeli-Arab Six-Day war, the Government of Israel has carried out settlement of its civilian populations in the occupied territory, particularly the West Bank region. Currently, a majority of the civilian population in this region belongs to the followers of Judaism, thus, effecting a drastic change in the demography of these lands which was predominantly populated with majority of Muslims and Christians.
Apart from various other human rights and humanitarian law issues which emanate from the aforementioned conflicts, one of the major concerns which needs attention is the international law on the transfer of civilians into the occupied territory.
Article 49(6) of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) states that the occupying power shall not deport or transfer part of its own population into the occupied territory. Similar provisions are there in Rome Statute3, Additional Protocol 1 to the Fourth Geneva Convention4 apart from other instruments5 on international humanitarian law. This offence is also recognised in Rule 130 of the Customary International Humanitarian Law.6
While the Government of Israel has faced a constant criticism7 for its blatant violation of Article 49(6) of the Fourth Geneva Convention and Article 8(2)(b)(viii) of the Rome Statute, it has always denied the same.
Commentary on Article 49(6) shows that the reason behind these provisions were the horrors of Second World War where it was a common practice of transferring part of civilian population into the occupied territory with the intent to colonise it.8 The judgment of International Military Tribunal in Nuremburg Trials is to a large extent the only jurisprudence on this issue.9 This offence is considered as one of the most serious war crimes in international armed conflict.
Interpretation of term “transfer”
The crux of this offence lies in the interpretation of the term “transfer”. The term “transfer” has not been defined in any of the Convention or instruments cited in the preceding paragraphs.
In 2014, the Russian Federation post its annexation of Crimea, undertook various measures to bring Russian citizens into Crimea. These included aggressively facilitating and encouraging permanent work migration from the Russian Federation to Crimea by mandating work experience in the Russian Federation for government jobs in Crimea and providing housing and additional work benefits to Russian citizens who chose to permanently relocate to Crimea.
Similar pattern is there in Israel-Palestine conflict, where Israel has always defended itself by contending that the term “transfer” in Article 49(6) of the Geneva Convention refers to a forcible transfer of population into the occupied territories as practised by the Nazi Germany during Second World War, thus not applicable on its settlements, as the same are voluntary.
Voluntary migration in international relations is when someone chooses to migrate to another territory for better economic conditions. Some of the criteria to ascertain voluntariness of migration can be (i) coercion; and (ii) sufficiency.10 While coercion requires force or threat, sufficiency criteria supposes that if available alternatives at home are good enough, the migration should be considered voluntary. Though stricto sensu interpretation of coercion may not encapsulate transfer of civilians by an occupying power into the occupied territory vide economic incentives, it is pertinent to acknowledge that, principles, which may help to assess the “voluntariness” of migration during peacetime should not be applicable in the context of the transfer of civilians during a conflict/war. Firstly, because peacetime voluntary migration presupposes migration for the sole purpose of better economic opportunities in an unprejudiced and unbiased host country, where the disparity in opportunities offered to migrants and natives is minimal and often favourable towards the native population.
To the contrary, a State-incentivised migration into an occupied territory is sans an unprejudiced and unbiased socio-economic condition, where natives are deliberately deprived of economic opportunities in order to unduly benefit the migrant population, which in normal circumstances they would not have access to. Second, the State-incentivised migration into an occupied territory cannot be said to be solely for economic purposes, but also influenced/driven by fervour of nationalism/jingoism, where migrant population migrates conscious of the fact that its migration into occupied territory may lead to subjugation of native population, which is more often than not the very intent of the occupying power in incentivising/sponsoring migration. Therefore, even though State-incentivised migration into occupied territory may not fall within the strict interpretation of “coercion”, it still does not qualify into a voluntary migration in light of drastic undue influence of occupying State in favour of migrant population and which is highly coercive and detrimental towards the native population.
Even otherwise in law, the argument of voluntariness of migration taken by occupying States, has little, if any, force and has many critics11, including the advisory opinion of the International Court of Justice which vehemently rejects this contention.12 In Article 8(2)(b)(viii) of the Rome Statute the term “directly or indirectly” has been used after the term “transfer,” therefore, transfer of population even when voluntary or induced by State or vide State-sponsored incentive as in the case of Israel and Russia, will squarely fall within the scope of transfer. Moreover, the fact whether the civilian population of the occupying power has been transferred forcibly or voluntarily is of no relevance in this offence, as the end result of the same would be catastrophic to the domestic population of the occupied territory.
Suggestions and conclusion
The inherent purpose of these articles13 is to prevent an occupying power from transferring its civilian population into the occupied territory, where (1) the same appears to have been carried out to change the demography with the intent to annex the territory or colonise it; (2) where the transfer of civilian population is detrimental to inter alia religious beliefs, culture and damages the economic situation of the domestic population; and (3) where the nature of transfer is itself evident enough to show that the same is being done to permanently settle the civilian population into the occupied territory, that is in essence, it should be a continuous one.14 However, cases where the occupying power indulges in a temporary transfer of its civilian population to assist its military in its administrative work in the occupied territory seems to be an exception of this war crime.
At the concluding stage, it can be evaluated that although international humanitarian law contains various noble provisions for the protection of civilians, they fail to get the necessary sanction. The problem existing for the past 50 years has been the application or implementation of the laws. States have failed to respect their obligations adequately. Apart from the apathetic attitude of States towards humanitarian law, it has also been found that civilians are specifically made targets in some armed conflicts, thus negating the very foundation on which the Geneva Convention and the humanitarian law are based.
Thus, this issue once again raises the clichÃ©d debate of whether international law is truly a law? Even though sufficient rules and regulations have been laid down, they all go in vain as there is no international institution that has fairly been able to enforce them.
Humanitarian law miserably fails to sanction or uphold its provisions as it is mocked and frequently violated by States and non-State armed groups. From the examination of historical events like the Turkey-Cyprus War15, Western Sahara War16, Israel-Palestine conflict and Russia-Ukraine War, it can be concluded that international humanitarian law has to a large extent failed to achieve its intended purpose.
* Advocate, BA LLB (Hons.), Supreme Court of India. Author can be reached at <firstname.lastname@example.org>.
1. Crimean Precedent, “Special issue Transfer by the Russia Parts of its Own Civilian Population into the Occupied Territory of Ukraine”, <https://krymbezpravil.org.ua/en/issues/crimea-beyond-the-rules-special-issue-transfer-by-the-russian-federation-of-parts-of-its-own-civilian-population-into-the-occupied-territory-of-ukraine/>; also, Radio Free Europe/Radio Liberty, “Shifting Loyalty: Moscow Accused of Reshaping Annexed Crimea’s Demographics”, <https://www.rferl.org/a/russia-accused-of-reshaping-annexed-crimea-demographics-ukraine/29262130.html>.
2. United Nations, Israel’s Settlements Have No Legal Validity, Constitute Flagrant Violation of International Law, Security Council Reaffirms, Meetings Coverage and Press Releases, 7853rd Meeting, <https://www.un.org/press/en/2016/sc12657.doc.htm>. See also UNSC Resolution No. 446, 452, 465, 471 and 476.
3. Rome Statute of the International Criminal Court, Art. 8(2)(b)(viii).
4. Protocol Additional to the Geneva Conventions of 12-8-1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol 1), Art. 85(4)(a).
5. Draft Code of Crimes Against the Peace and Security of Mankind, International Law Commission 1991, Art. 22(2)(b); United Nations Transitional Administration in East Timor (UNTAET) Regulation No. 2000/15 on the Establishment of Panels with Exclusive Jurisdiction Over Serious Criminal Offences, S. 6(1)(b)(viii).
6. Practice Relating to R. 130. Transfer of Own Civilian Population into Occupied Territory, <https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule130>.
7. United Nations Security Council Resolutions Nos. 446, 452, 465, 471 and 476.
8. Jean S. Pictet, IVth Geneva Convention Relative to the Protection of Civilian Persons in the Time of War: Commentary, p. 283.
9. The Trial of German Major War Criminals: Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, Part 22 (22-8-1946 to 1-10-1946), <https://crimeofaggression.info/documents/6/1946_Nuremberg_Judgement.pdf.
11. Adam Roberts, “Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967”, The American Journal of International Law, Vol. 84, No. 1 (Jan 1990), pp. 44-103, <https://www.jstor.org/stable/pdf/2203016.pdf?refreqid=excelsior%3A00996ba5765f4506f76f3c6c0e268bb3>.
12. Ruth Wedgwood, “The ICJ Advisory Opinion on the Israeli Security Fence and the Limits of Self-Defence”, The American Journal of International Law, Vol. 99, No. 1 (Jan 2005), pp. 52-61, <https://www.jstor.org/stable/2203016>.
13. The Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), Art. 49(6) and Rome Statute of the International Criminal Court, Art. 8(2)(b)(viii).
14. YaÃ«l Ronen, “Symposium on Revisiting Israel’s Settlements: Taking the Settlements to the ICC? Substantive Issues”, AJIL, Vol. 111, 2017, pp. 57-61, <https://www.cambridge.org/core/services/aop-cambridge-core/content/view/FD528D7EA375718C67A6BE2FE0953E68/S2398772317000162a.pdf/taking_the_settlements_to_the_icc_substantive_issues.pdf>.
15. Report of Committee on Migration, Refugees and Demography on Colonisation by Turkish Settlers of the Occupied Part of Cyprus, Doc. 9799 (2-5-2003), <https://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewHTML.asp?FileID=10153&lang=EN>.
16. How Does Law Protect the Law, “The Conflict in Western Sahara”, <https://casebook.icrc.org/case-study/conflict-western-sahara>.