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Legal Issues Surrounding Population Transfers in Conflict Situations

Published online by Cambridge University Press:  21 May 2009

Christa Meindersma
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Today, Machiavelli's words have lost none of their accuracy. Population transfer still serves as an effective means to secure the fruits of conquest or aggression to the detriment of the civilian population. With nationalist sentiments rising alarmingly, population transfer is bound to be one of the issues figuring high on the international agenda in the decade to come.

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Netherlands International Law Review , Volume 41 , Issue 1 , May 1994 , pp. 31 - 83
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Copyright © T.M.C. Asser Press 1994

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References

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2. UN Sub-Commission res. 1991/28, 1992/28, 1993/34.

3. Palley contends that the phenomenon should be examined as a whole and that ‘consistency and coherence are desirable because they will result in a stronger right, which will deter the adoption of government policies violating it, including indirect policies such as financial inducements to migration’. Palley, C., The Human Rights Dimensions of Population Transfer: Preliminary Working Paper, UN Doc. E/CN.4/Sub.2/1992/WP.l, paras. 4–5Google Scholar. In 1991, NGOs proposed a working definition of population transfer: ‘The movement of large numbers of people, either into or away from a certain territory, with State involvement or passive or active acquiescence of Government and without the free and informed consent of the people being moved or the people into whose territory there are being moved’. See UN Doc. E/CN.4/Sub.2/1991/NGO/2.

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9. UN Sub-Commission res. 1993/34.

10. The term ‘occupation’ throughout the present article refers to occupation within the meaning of international humanitarian law. See Art. 2 Geneva Conventions.

11. See in particular Art. 49 of the IV Geneva Convention (Civilians Convention), which according to the wording of its exception clause permits the ‘evacuation of a given area if the security of the population or imperative military reasons so demand’. For extensive analysis of Art. 49, see section 4.3 below.

12. The term ‘ethnic cleansing’ is sporadically used throughout the text, particularly with reference to the situation in the former Yugoslavia. However, the author thinks that in many cases where a policy of ‘ethnjc cleansing’ is pursued it would be more clear to refer to the different elements comprising this practice, many of which are established notions under international law, such as, for instance, population transfer or deportation. Incases where ‘ethnic cleansing’ constitutes genocide, it should simply be called genocide.

13. For instance, with the Baltic States, Italy involving South Tyrolians, with Romania, Yugoslavia and the USSR.

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20. UN Doc. E/CN.4/1993/50, at p. 7. For an analysis of population transfer as war crimes, see section 3.1 below.

21. Preliminary Report on the Human Rights Dimensions of Population Transfer UN Doc. E/CN.4/Sub.2/1993/17, at p. 10.

22. Ibid. p. 10.

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32. Ibid.

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34. According to de Zayas, between 1944 and 1949,16 million Germans were expelled from their territory and their homes. de Zayas, A.M., ‘International Law and Mass Population Transfers’, 16 Harvard ILJ (1975) no. 2, p. 228Google Scholar.

35. Potsdam Protocol, agreed upon on 2 August 1945 by the USSR, UK and USA.

36. Supporting its legality: Brownlie, I., International Law and the Use of Force (1963) pp. 408–409Google Scholar and Principles of Public International Law (1990) p. 561Google Scholar, reaffirming his earlier position. For arguments against see de Zayas, A.M., Nemesis at Potsdam: The Expulsion of the Germans from the East (1989); loc. cit. n. 34Google Scholar; ‘The Legality of Mass Population Transfers: The German Experience’, 12 EastEuropean Q. (1978) nos. 1/2, pp. 1–23,144–160Google Scholar; and The German Expellees: Victims in War and Peace (1993)Google Scholar. The International Law Institute addressed the question of the legality of the transfers. See the report and questionnaire presented by Giorgio Balladore Pallieri and answers in ‘Les Transfers Internationaux de Populations’ (quatrieme commission), 44 Annuaire (1952) no. 2, pp. 138–199Google Scholar. Bassiouni distinguishes population transfers on the basis of their purpose in five categories, that is for the purpose of murder, extermination, enslavement, other inhumane acts; for valid purposes in a lawful way; by lawful means in connection with a treaty that places a given territory under the sovereignty of another State; deportation arising from transfer of territory to another State; deportation and transfer of population exclusively on the basis of discrimination, and asserts the legal relevance of such distinctions, op. cit. n. 4, pp. 310–311Google Scholar.

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43. Ibid.

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47. De Zayas, ibid. at p. 214.

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50. The IMT at Nuremberg expressly recognised the 1907 Hague Convention IV as declaratory of customary international law. See IMT supra n. 42, vol. I, at p. 44Google Scholar. Meron also states that ‘the customary law status of the Regulations annexed to the Convention is universally recognised’. Meron, T., Human Rights and Humanitarian Norms as Customary Law (1991) p. 226Google Scholar.

51. Pictet, J., ed., Commentary to the IV Geneva Convention Relative to the Protection of the Civilian Persons in Time of War (1958) p. 279Google Scholar.

52. Bassiouni, , op. cit. n. 4, p. 302Google Scholar, argues that while Art. 46 offers general protection against deportations, Arts. 47–53 providing for other protection, when read with Art. 46, indicate by implication that civilian populations are to remain in place and not to be deported. For the text of the Hague Conventions see Roberts, A. and Guelff, R., eds., Documents on the Laws of War (1982) pp. 55–57Google Scholar.

53. Lieber, F., Instructions for the Government of Armies of the United States in the Field (1863)Google Scholar; originally published as General Orders No. 100 (Washington: War Department, Adjutant General's Office, 1863)Google Scholar; reprinted in Schindler, D. and Toman, J., eds., The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents (1988) pp. 3–25Google Scholar.

54. According to Pictet, the intent behind the inclusion of this important prohibition becomes obvious: ‘It will suffice to mention that millions of human beings were torn from their homes, separated from their families and deported from their country, usually under inhumane conditions. The thought of the physical and mental suffering endured by these “displaced persons” among whom were a great many women, children, old people and sick, can only lead to thankfulness for the prohibition embodied in this paragraph, which is intended to forbid such hateful practices for all time’. Pictet, , op. cit. n. 51, at pp. 278–279Google Scholar.

55. The commentary to paras. 2 and 3 indicates that the intention behind the exception clause is to protect the interest of the population concerned and to mitigate the unfortunate consequences of evacuation. Ibid, at pp. 280–281.

56. The commentary states that this clause was adopted ‘to prevent a practice adopted during the Second World War by certain Powers which transferred portions of their own population to occupied territory for political and racial reasons in order, as they claimed, to colonise those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race’. Ibid, at p. 283.

57. Pictet, , op. cit. n. 51, p. 279Google Scholar.

58. Bindschedler-Robert, D., ‘A Reconsideration of the Law of Armed Conflict’, in The Law of Armed Conflicts (1971) pp. 15–16Google Scholar, cited in Pellet, A., ‘The Destruction of Troy Will Not Take Place’, inPlayfair, E., ed., InternationalLaw and the Administration of Occupied Territories (1992) p. 196Google Scholar.

59. Arts. 14 and 16 Lieber Code (1863).

60. US Air Force Law of War Manual, cited in Doswald-Beck, L. and Vite, S., eds., ‘International Humanitarian Law and Human Rights Law’, International Review of the Red Cross, no. 293 (03–04 1993) p. 98Google Scholar.

61. Ibid, at p. 198.

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63. ILC Rep. (1991), UNGA Official Records (1992), Suppl. No. 10, A/46/10, pp. 286 and 271.

64. Leckie, S., When Push Comes to Shove: Forced Evictions and International Law (1994) p. 46Google Scholar.

65. Art. 49 Geneva Civilians Convention, para. 2.

66. Art. 58 (a) Additional Protocol I to the Geneva Conventions.

67. Meron, , op. cit. n. 50, p. 45Google Scholar.

68. At footnote 131, Meron, adds that ‘the object and purpose of Geneva Convention No. IV, a humanitarian instruments par excellence, was not only to protect civilian population against Nazitype atrocities, but to provide the broadest possible humanitarian protection for civilian victims of future wars and occupations, with their ever-changing circumstances’. Op. cit. n. 50, pp. 48–49Google Scholar.

69. Roberts, A.,‘Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967’, 84 AJIL (1990) p. 84CrossRefGoogle Scholar: ‘It has been asserted that there is nothing wrong with settlements in the sense of army bases where soldiers are engaged in agriculture for part of the time’ and ‘Civilian settlements have also been called necessary for the Occupying Power's security, and therefore essential if the Occupying Power is to preserve public order and safety’.

70. See also UN Sub-Commission res. 1992/28 which recognised ‘the implantation of settlers and settlements in certain countries, including occupied territories, with the aim of changing the demographic structure and the political, cultural and religious characteristics of those countries’ and that ‘population transfer may constitute part of a general policy… aimed at imposing effective control…’

71. See Beth Elcase, HC 606/78, Ayub et al. v. Minister of Defence et al., translated in 9 Israeli YHR (1976) p. 340Google Scholar.

72. The 24th International Red Cross Conference, Manila, 1981, passed a resolution reaffirming in para. 2 ‘the applicability of the Fourth Geneva Convention to the Occupied Territories in the Middle East’ and affirming in para. 5 ‘that the settlements in the Occupied Territories are incompatible with articles 27 and 49 of the Fourth Geneva Convention’. Int. Rev. Red Cross no. 225 (Nov-Dec. 1981) pp. 320–321Google Scholar.

73. Roberts, , loc. cit. n. 69Google Scholar, commenting on the security argument with reference to the Occupied Territories, points out: ‘It is doubtful whether the settlements programme was primarily intended to contribute to the Occupying Power's security and whether, in the event, it has contributed to that end; by causing friction with the Palestinian inhabitants of the territories, the program may even have added to the work of the Israeli Defence Forces. The settlements program is simply contrary to international law. However, it is now so far advanced, and so plainly in violation of the Geneva Convention, that it actually creates a powerful argument and reason for Israel's continuing refusal to accept that the Convention is applicable in the Occupied Territories on a de jure basis’

74. UN Sub-Commission res. 1992/28.

75. Mallison, W. and Mallison, S.V., The Palestinian Problem in International Law and World Order (1986) pp. 264–265Google Scholar. For the text of the ICRC Commentary to Art. 49(6), see n. 56 supra.

76. The broad applicability of the Convention is stressed in Arts. 1, 2, 4, 17 and 47. Art. 47 of the IV Geneva Convention provides that the Convention applies to an occupied territory regardless of ‘any change introduced, as a result of occupation of a territory into the institutions or government of the said territory, by any agreement concluded between the authorities of the occupied territories and the Occupying Power or by the annexation by the latter of the whole or part of the occupied territory’.

77. Roberts, , loc. cit. n. 69, p. 51Google Scholar.

78. Falk, R., ‘Some Legal Reflections on Prolonged Israeli Occupation of Gaza and the West Bank’, 2 J. Refugee Studies (1989) p. 40CrossRefGoogle Scholar. Falk also suggests that the proposed Convention should specify that international human rights law, as well as humanitarian law, applies to situations of prolonged conflicts.

79. Arts. 146 and 147 of the Geneva Civilians Convention (1949); see also Pictet, , op. cit. n. 51, pp. 582–602Google Scholar.

80. Section 6.3 below deals with the chances for prosecution of perpetrators of population transfer at the International Tribunal.

81. Art. 1, para. 4 of Additional Protocol I (1977).

82. See Meindersma, C., Applicability of Humanitarian Norms in Situations of International and Internal Conflict (forthcoming, 1994)Google Scholar.

83. On the customary law status of Additional Protocol I, see Meron, , op. cit. n. 50, p. 66Google Scholar.

84. Sandoz, et al. , eds., op. cit. n. 62, p. 1000Google Scholar.

85. See in general on non-international armed conflicts Abi-Saab, G., ‘Non-International Armed Conflicts’, in International Dimensions of Humanitarian Law (1988) pp. 217–241Google Scholar. For a detailed analysis of the requirements of the application of Protocol II, see Meindersma, , op. cit. n. 82Google Scholar.

86. Sandoz, et al. , eds., op. cit. n. 62Google Scholar.

87. Art. 382, The Law of Land Warfare: Department of the Field Manual FM 27–10 (Department of the Army, July 1956) p. 145Google Scholar.

88. Art. 560, Manual of Military Law (HMSO, 1956) p. 155Google Scholar.

89. Sandoz, et al. , eds., op. cit. n. 62Google Scholar.

90. Ibid. p. 1340; cited in Meron, , op. cit. n. 50, p. 73Google Scholar.

91. Greenwood, , loc. cit. n. 49, p. 113Google Scholar.

92. Adopted by UNGA res. 2391, 26 November 1968, entered into force 11 November 1970.

93. For a detailed discussion of the Convention, see Miller, R.H., ‘The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity’, 65 AJIL (1971) pp. 476–501Google Scholar.

94. Inclusion of this particular inhuman act was strongly approved by many representatives ‘as covering some of the most evil crimes against humanity which were being committed at present’. Ibid. p. 490.

95. Reference is contained in the preamble to the Convention to UNGA res. 2184 (XXI) in which the GA condemned as a crime ‘the policy of the government of Portugal, which violates the economic and political rights of the indigenous population by the settlement of foreign immigrants in the Territories’.

96. Gros Espiell, H., ‘Human Rights and International Humanitarian Law’, 1 Bull. HR (1992) p. 21Google Scholar. See also on the relation between human rights and humanitarian law Patrnogic, J.,‘Human Rights and Humanitarian Law’Google Scholar; Hampson, F. J.,‘ Human Rights and International Humanitarian Law: Two Coins or Two Sides of the Same Coin?’Google Scholar; and Meron, T., ‘The Protection of the Human Person under Human Rights Law and Humanitarian Law’, all in 1 Bull. HR (1992)Google Scholar.

97. A number of arguments support this view. The UN has on numerous occasions stressed the idea of respect for human rights in times of armed conflict. From 1968, reflecting the close links between the advance of human rights and humanitarian law, a series of General Assembly Resolutions were adopted under the heading ‘Respect for Human Rights in Armed Conflicts’ (UNGA res. 2444(XXIII) (1968); 2597(XXIV) (1969); 2674(XXV) (1970); 3244(XXXII) (1977)). As early as 1970 the General Assembly adopted a resolution stating that ‘fundamental human rights, as accepted in international law and laid down in international instruments, continue to apply fully in situations of armed conflict’ (UNGA res. 2675(XXV) entitled ‘Basic Principles for the Protection of Civilian Population in Armed Conflict’ which states in para. 7 that ‘Civilian populations, or individual members thereof, should not be the object of reprisals, forcible transfers or other assaults on their integrity’. During that period there was a strong move to obtain acceptance of the idea that the law of human rights should operate in times of war as in times of peace. Respect for Human Rights in Armed Conflicts, Report of the Secretary-General, UN Doc. A/8370, (1971)Google Scholar, cited in Draper, G.I.A.D., ‘Human Rights and the Law of War’, 12 VJIL (1972) no. 3, p. 332Google Scholar.

98. Espiell, , loc. cit. n. 96Google Scholar.

99. See Arts. 63, 62, 142, 158 of the First, Second, Third and Fourth Geneva Conventions respectively.

100. On the admissibility of these cases see: Application nos. 6780/74 and 6950/75, contained in Report of the Commission (10 July 1976)Google Scholar, adopted by the Committee of Ministers on 20 January 1979, at pp. 15–16 and vol. II Appendix I, 1–25; Application no. 8007/77, contained in Report of the Commission (4 October 1983)Google Scholar, adopted by the Committee of Ministers on 2 April 1992, paras. 3–4 and Appendix II, 79–160.

101. According to Eide ‘there is an increasingly wide set of rules which apply in all circumstances, whether the domestic situation is calm or is troubled by riots, disorders, or even armed strife’. In his opinion, the most relevant human rights instruments in this context are: the Universal Declaration, the Genocide Convention, CERD, ICCPR, ICESCR, the Apartheid Convention, the European Convention, the American Convention and the African Charter.

102. UNGA res. 217(111), Part A. The UDHR provides an authoritative guide to the interpretation of provisions of the UN Charter; it has been invoked by the GA on many occasions and has influenced the adoption and interpretation of national and treaty law. The UDHR has been cited by the International Court of Justice and the European Court of Justice and forms the basis of implementation mechanisms at the UN level. On the UDHR see ‘The Universal Declaration on Human Rights: Its Significance in 1988’, SIM Special no. 9 (1988)Google Scholar.

103. On the legal significance of the UDHR see Flinterman, C., ‘The Universal Declaration on Human Rights and the Need for Human Rights Education’, SIM Special no. 9 (1988)Google Scholar, where he states: ‘all states are now accountable and responsible for the ways in which they comply with this common standard’.

104. Palley, C., ‘Population Transfers’, in Gomein, D.. ed., Broadening the Frontiers of Human Rights: Essays in Honour ofAsbjorn Eide (1993) p. 229Google Scholar.

105. Brownlie, , Principles, op. cit. n. 36, pp. 512–515Google Scholar; Barcelona Traction case, ICJ Rep. (1970)Google Scholar. The concept of jus cogens was accepted by the ILC and incorporated in the Vienna Convention on the Law of Treaties, Art. 53. See ILC Yearbook (1963)

106. In its Advisory Opinion, the ICJ stated that ‘the principles underlying this Convention are principles which are recognised by civilised nations as binding on States, even without any conventional obligation’.

107. Dinstein, Y., ‘Collective Human Rights of Peoples and Minorities’, 25 ICLQ (1976) pp. 102–120, at p. 105Google Scholar.

108. The principle of self-determination is laid down in Art. 1 of the UN Charter and is elaborated in UNGA res. 1514(XV) (Dec. 1960); UNGA res. 2105(XX) (Dec. 1965) recognised the legitimacy of the struggle of colonial peoples against colonial domination in the exercise of their right to self-determination and independence and invited all States to provide material and moral support to national 1 iberation movements in colonial territories. Res. 2625(XXV) (Oct. 1970) devoted 8 paras, to the right of self-determination laying down the duty of every State to realise this right and promote its realisation as well as to refrain from any forcible action which deprives peoples of this right; in resistance to such forcible action, people are entitled to seek and receive support. The right is furthermore laid down in Art. 1 of the ICCPR as well as the ICESCR.

109. UNGA res. 1514 (XV) (Dec. 1960)Google Scholar.

110. Crawford, J., The Creation ofStates in International Law (1979) pp. 85–102Google Scholar and Crawford, , The Rights of Peoples (1988)Google Scholar.

111. Modern writings hold this right to be a continuous right. ‘Self-determination is not a right to be enjoyed and thereafter forever lost’, statement by UNESCO to the UN Sub-Commission, UN Doc. E/CN.4/Sub.2/1992/6, para. 3(d). Espiell states that ‘the right of peoples to self-determination has lasting force, does not lapse upon the first having been exercised’. The Right of Self-Determination: Implementation of United Nations Resolutions, UN Doc. E/CN.4/Sub.2/405/Rev. 1 (1980)para. 47Google Scholar. The right of self-determination has been argued to be a process rather than one particular outcome and to consist of a ‘bundle of rights’ from which, depending on the specific situation experienced by that people, a variety of rights can be chosen for its implementation. Cohn, C., Choices from the Bundle: A Model for Exercising the Right to Self Determination (forthcoming, 1994)Google Scholar. The exercise of the right to self-determination may involve a range of political options, ranging from autonomy to self-government and independent statehood.

112. de Zayas, A. M., ‘Population Expulsion and Transfer’, in Bernhardt, R., ed., Encyclopaedia of Public International Law, vol. 8 (1985) pp. 438–444Google Scholar; also D. Thurer, ‘Self-Determination’, in ibid. pp. 470–476; Cassese, A., ‘The Self-Determination of Peoples’, in Henkin, L., ed., The International Bill of Rights: The Covenant on Civil and Political Rights (1981)Google Scholar.

113. Meindersma, C., ‘Introductory Remarks’, in Goldberg, D., ed., Report on the UNPO Conference on the Human Rights Dimensions of Population Transfer (UNPO, 1992)Google Scholar. In the same vein Palley, Claire states that ‘once broad issues surrounding population transfers are canvassed, a possible development is the growth of law which sanctions violations of the right to internal self-determination, including attacks on the continuing identity and integrity of culturally distinct ethnic groups through suppressing their culture’. Loc. cit. n. 104, p. 222Google Scholar.

114. Crawford, , The Rights of Peoples, op. cit. n. 110, pp. 164–165Google Scholar.

115. de Waart, P.J.I.M., ‘Subscribing to the “Law of Geneva”’, in Tanja, and Delissen, , eds., op. cit. n. 49, p. 476Google Scholar.

116. Thornberry, P., “The Democratic or Internal Aspect of Self-Determination with Some Remarks on Federalism’, in Tomuschat, C., ed., Modern Law of Self-Determination (1993) p. 21Google Scholar.

117. Palley, , loc. cit. n. 104, p. 222Google Scholar.

118. Barcelona Traction case (second phase), ICJ Rep. (1970) p. 32Google Scholar.

119. As of 31 July 1992, there were 132 States Parties to the CERD.

120. Art. 1(1) CERD.

121. Art. 5(e)(iii) CERD.

122. Leckie, , op. cit. n. 64Google Scholar. See also Sachar, R., First Progress Report on Promoting the Realisation of the Right to Adequate Housing, UN Doc. E/CN.4/Sub.2/1993/15Google Scholar.

123. UN Doc. E/CN.4/Sub.2/1993/17, op. cit. n. 21Google Scholar.

124. UNGA res. 2200 A (XXI) (16 Dec. 1966), entered into force 23 March 1976.

125. On the post World War II transfers of ethnic Germans, see de Zayas, , Nemesis at Potsdam, op. cit. n. 36Google Scholar and de Zayas, , loc. cit. n. 34Google Scholar.

126. UN Doc. E/CN.4/Sub.2/1992/58.

127. Ibid. pp. 21–22.

128. The right to freedom of movement is contained in additional human rights instruments: UDHR, Art. 13; Protocol IV to the European Convention, Arts. 2, 3; Inter-American Convention on Human Rights, Art. 22; CERD, Art. 5; African Charter, Art. 12.

129. On exile and expulsions in connection with the right to freedom of movement see Hannum, H., The Right to Leave and Return in International Law and Practice (1987) pp. 63–67Google Scholar.

130. Ibid. p. 94.

131. Eide, A., ‘Internal Disturbances and Tensions’, in International Dimensions of Humanitarian Law, op. cit. n. 85, pp. 241–259, at pp. 244–245Google Scholar.

132. UN Doc. E/CN.4/Sub.2/1992/23, para. 86.

133. According to the Limburg Principles and Art. 2(1) of the Covenant, State Parties to the Covenant are obliged to move as expeditiously as possible towards realisation of the rights contained therein. State practice hampering this process and continued non-compliance can therefore be considered to constitute violations of economic, social and cultural rights rinciples 70–73; principle 72 details the behaviour of governments that amounts to a violation of the Covenant). For the text of the Limburg Principles see 9 HRQ (1987) no. 2. On ESC rights see final report of the UN Special Rapporteur on ESC Rights, D. Turk, UN Doc. E/CN.4/Sub.2/1992/16.

134. The right to work and the right to education cannot but be impaired by the process of transferring populations (Arts. 6 and 13). Moreover, systematic denial of means of employment and education to specific groups, and, at the same time, instituting favourable employment or education conditions for a particular group within the total population under a State's jurisdiction are means commonly used to coerce certain groups to move away from an area and alter the demographic character of the territory concerned.

135. Sachar, , op. cit. n. 122Google Scholar. See on the right to adequate housing Leckie, S.From Housing Needs to Housing Rights: An Analysis of the Right to Adequate Housing under International Human Rights Law 1992Google Scholar.

136. UN Sub-Commission res. 1991/12,1992/14, 1993/41 and UN Commission res. 1993/77 have recognised that ‘practices of forced evictions constitute a gross violation of human rights in particular the right to adequate housing’.

137. Committee on Economic, Social and Cultural Rights, ‘Report on the Sixth Session’, in ECOSOC Official Records, Suppl. no. 3, UN Doc. E/1992/23 and UN Doc. E/C.12/1991/14, Annex III, para. 7Google Scholar.

138. Committee on ESC-Rights, General Comment no. 4 (1991)Google Scholar.

139. Also Limburg Principles 46–57.

140. In 1983, the European Commission dealt again with the legality of population transfers of Greek Cypriots. The conclusions of the Commission on displacement of persons, separation of families and discrimination were identical to the cases discussed above. Case no. 8007/77 Cyprus v. Turkey, supra paras. 124–165, at pp. 34–48.

141. Report on an Additional Protocol on the Rights of Minorities to the European Convention for the Protection of Human Rights and Fundamental Freedoms, ADOC 6742 (1403–15/1/93–2–E), Parliamentary Assembly of the Council of Europe (19 01 1993)Google Scholar.

142. UNGA res. 177(II), 1947.

143. ILC Rep. (1991), UNGA Official Records (1992) Suppl. no. 10, A/46/10.

144. Ibid. p. 268.

145. Ibid p. 271.

146. ILC Draft Art. 5. The ILC commentary explains that ‘the State may thus remain responsible and be unable to exonerate itself from responsibility by invoking the prosecution or punishment of the individuals who committed the crime. It could be obliged to make reparation for injury caused by its agents’. ILC Rep. (1991), supra n. 141, p. 255Google Scholar.

147. Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights, Abo Akademi University Turku, Finland, 30 November-2 December 1990, submitted as a working paper to the UN Sub-Commission, 43rd session, UN Doc. E/CN.4/Sub.2/1991/55.

148. Ibid. See also Art. 3(2)(a) and (b) on humane treatment of persons, prohibiting in particular ‘violence to life, health and physical and mental well-being of persons … and other outrages upon personal dignity’ and ‘collective punishments are against persons and their property’.

149. The Draft Articles are divided into three parts: Part I deals with the origin of international responsibility; Part II with the content, forms and degree; and Part III with settlement of disputes and implementation. So far, the ILC has provisionally adopted on first reading Part I (Arts. 1–;35) and Part II (Arts. 1–5).

150. Draft Articles, Art. 3.

151. Ibid. Part I, Art. 19.

152. Ibid. Part II, Art. 14(2)(a) and (b).

153. Harris, , op. cit. n. 5, p. 460Google Scholar.

154. UNSC res. 808 (22 February 1993)Google Scholar.

155. UN Doc. S/25266 (10 February 1993) pp. 20–21Google Scholar.

156. From the report of the Secretary-General pursuant to UNSC res. 808, we learn that both existing conventional and customary humanitarian law will be applied. UN Doc. S/25704, at p. 6.

157. Art. 4,5 Statute of the International Tribunal.

158. UN Doc. S/25704, at p. 12.

159. Not elaborated here but of pertinence to questions of population transfer are also the Declaration on the Rights of Persons Belonging to National, Ethnic, Religious and Linguistic Minorities, adopted by UNGA, 18 December 1992. Art. 1(1) relates the status of minorities to their territory providing that: ‘States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories, and shall encourage conditions for the promotion of that identity’. See also the Draft Declaration on the Rights of Indigenous Peoples, UN Doc. E/CN.4/Sub.2/28 (23 June 1992)Google Scholar, recognising practices of ethnocide (cultural genocide) and addressing questions of loss of land.

160. Pallieri, , ‘Les Transfer Internationaux de Populations’, loc. cit. n. 36Google Scholar.

161. Kraus, H., in Pallieri report, loc. cit. n. 36, pp. 170–171Google Scholar.

162. van Asbeck, F.M., in Pallieri report, loc. cit. n. 36, p. 162Google Scholar.

163. Kraus, ibid. p. 173.

164. G. Scelle, ibid, at p. 180.

165. Ibid, at p. 178.

166. Riphagen, W., ILC Special Rapporteur, Fifth Report on the Content, Form and Degrees of State Responsibility: Part II of the Draft Articles, A/CN.4/380 (4 April 1984), Art. 14(2)Google Scholar.

167. IIHL European Seminar on ‘Central and Eastern Europe: The Challenge of Becoming Refugee-Receiving Countries’ (Prague, 6–8 04 1993)Google Scholar.

168. Ibid, at pp. 26, 27, 29.

169. Statement by Cornelia Sommaruga, ICRC, at the opening of the International Meeting on Humanitarian Aid for Victims of the Conflict in the Former Yugoslavia, under the auspices of the UNHCR (Geneva, 29 July 1992)Google Scholar.

170. Sommaruga, C., ICRC, Address at the London Conference on the Former Socialist Federal Republic of Yugoslavia(26–27 August 1992)Google Scholar.

171. Statement by ICRC to the 49th session of the UN Commission on Human Rights (23 02 1993)Google Scholar.

172. Statement by Ogata, Sadako, UNHCR, to the 49th session of the UN Commission on Human Rights (3 March 1993) pp. 3–4Google Scholar.

173. In her speech ‘Refugees and World Peace’, Ogata stated in relation to the former Yugoslavia that ‘displacement is not so much the consequence as the objective of a tragic conflict which has uprooted or affected more than 3 million persons’ (Tokyo, 7 01 1993)Google Scholar.

174. UNCHR Statement to the 49th session of the UN Commission for Human Rights, supra n. 171, at p. 11Google Scholar.

175. See also UN Sub-Commission res. 1992/28 and 1993/34.

176. See Palley, C., ‘The Relevance of Population Transfers to Minority Rights’, paper submitted to the UN expert Seminar on Minorities (Geneva: 22 03 1993) p. 17Google Scholar.

177. See also UN Doc. E/CN.4/Sub.2/1993/17, at p. 79.

178. See UN Doc. E/CN.4/Sub.2/1994/NGO/6, at p. 3.

179. Paper submitted to a human rights conference on ‘The Problem of Demographic Manipulation in International Law’ (Nicosia, 21 05 1990) p. 8Google Scholar.

180. UN Doc. E/CN.4/Sub.2/1993/17, at p. 82.

181. Ibid. p. 82.