Alfred de zayas



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Ethnic Cleansing 1945 and Today:

Observations on Its Illegality

and Implications

ALFRED DE ZAYAS1



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. "Ethnic cleansing" is but a new term to describe the old State practice of expelling minorities on racial or religious grounds.

In analyzing the issue of the legality of mass population transfers, it is useful to look at it from various angles: a) from the perspective of public international law and the rules on State responsibility, in particular the obligation to make reparations, and b) from the perspective of international criminal law and the penal liability of individuals who order or carry out mass expulsions.

The issue should also be considered from the perspective of the authority of the sources of law2: "hard law" or treaties in force (leges latae) and "soft law" or not yet legally binding political principles (de lege ferenda), including resolutions and declarations of international organizations such as the League of Nations and the United Nations. Of course, most of the crimes that necessarily accompany ethnic cleansing are common crimes in the civil codes of all civilized nations: murder, manslaughter, battery, enslavement, theft, destruction of private property, violation of religious sites, desecration of cemeteries, etc. However, in times of ethnic or religious conflict, States rarely prosecute their own citizens for abuses committed against the targeted groups, especially when the abuses are part of official policy.

The following words of the first United Nations High Commissioner for Human Rights, José Ayala Lasso (Ecuador) were spoken at the Paulskirche in Frankfurt-am-Main on 28 May 1995 on the occasion of the solemn ceremony to remember fifty years since the expulsion of fifteen million Germans from Eastern and Central Europe, the largest forced population transfer in history.


The right not to be expelled from one's homeland is a fundamental right.... 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.... 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.3
Among legal experts there is no question today that the practice of "ethnic cleansing" or mass population transfers is doubly illegal—as an internationally wrongful act, giving rise to State responsibility and as a grave violation of international criminal law, giving rise to personal criminal liability.4

The expulsions by Germany's National Socialist government of one million Poles from the Warthegau in 1939/40 and of 105,000 Frenchmen from Alsace in 1940 were listed in the Nürnberg indictment as "war crimes" and "crimes against humanity." The transcripts of the Nürnberg trials contain much discussion on the Nazi practice of deporting enemy aliens for purposes of demographic manipulation and also for purposes of forced enlistment into the labor force of the Nazi war machine. The Nürnberg judgment held several Nazi leaders guilty of having committed these crimes and sentenced them to death by hanging. It is an anomaly that in spite of this clear condemnation of mass deportations, the Allies themselve carried out even greater expulsions in the last few months of the Second World War and the years that followed. Article XIII of the Potsdam Protocol attempts to throw a mantle of legality over the expulsions carried out by Czechoslovakia, Hungary, and Poland. Nothing is said about the expulsions from other countries like Yugoslavia and Romania.

However, the victorious Allies at Potsdam were not above international law and thus could not legalize criminal acts by common agreement. There is no doubt that the mass expulsion of Germans from their homelands in East Prussia, Pomerania, Silesia, East Brandenburg, Sudetenland, Hungary, Romania, and Yugoslavia constituted "war crimes," to the extent that they occurred during wartime, and "crimes against humanity," whether committed during war or in peacetime.

Moreover, the slave labor imposed on nearly one million ethnic Germans as "reparations in kind," which was agreed on 11 February 1945 by Churchill, Roosevelt, and Stalin at the Yalta Conference,5 also constituted a particularly heinous crime, which led to hundreds of thousands of deaths during the deportation to slave labor, during the years of hard work with little food, and as sequel of this inhuman and degrading treatment.6


International Law Standards Applicable on the Eve of the

Second World War

As far as public international law is concerned, a "right to one's homeland"7 had not been formulated expressis verbis by the outbreak of the Second World War, but many of its components were already part of "hard law." The violation of the right to remain in one's homeland would necessarily have violated many binding principles of international law, notably the Fourth Hague Convention of 1907, and articles 42-56 of the Hague Regulations on Land Warfare, which limit the rights of a belligerent occupant and forbid collective punishment. These principles formed the basis for the indictment and conviction of Nazi leaders at Nürnberg for the mass deportation of civilians from occupied territories.

Minorities have been frequent targets of expulsion and spoliation. Their international protection has given rise to important precedents8 which are relevant in the context of "ethnic cleansing." The treaties of Versailles and St. Germain of 1919 had imposed certain obligations on those States that following the redrawing of frontiers at the Paris Peace Conference had assumed responsibility for large numbers of persons belonging to other ethnic, religious, or linguistic groups. Unfortunately, most of these States ignored the rights of their minorities, as thousands of petitions addressed to the League of Nations amply document. There were two areas of frequent conflict between the German minorities and Polish authorities, one being the question of obtaining Polish citizenship and the other the widespread confiscation of German farms and eviction of the German owners through discriminatory Polish legislation. Some cases even reached the Permanent Court of International Justice at The Hague. A typical case was decided on 10 September 1923, when the Court delivered an advisory opinion on the merits and held unanimously
that the measures complained of were a virtual annulment of legal rights possessed by the farmers under their contracts, and, being directed in fact against a minority and subjecting it to discriminating and injurious treatment to which other citizens holding contracts of sale or lease were not subject, were a breach of Poland's obligations under the Minorities Treaty.9
Many such cases came before the Court and the League of Nations until 1934 when the Polish government unilaterally repudiated the League's minority system.

The violation of international norms by governments does not, however, mean that the norms do not exist. It only means that there is no proper mechanism of implementation and no sanctions for enforcing compliance. In any event, the existence of minority treaties in the interwar period does show that the international community had intended to give minorities special protection. It is obvious that ethnic cleansing, mass expulsion, and mass spoliation grossly violated the letter and spirit of the entire treaty regime for the protection of minority rights.

Moreover, since President Woodrow Wilson's many pronouncements on the right to self-determination, and since his famous Fourteen Points, the concept of self-determination had become a much discussed—if rarely implemented—principle of international law. Again, the existence of a norm is not negated by its violation. Unfortunately, however, self-determination has seldom been obtained peacefully as a right, but rather it has been won or lost by force of arms.

So it was, for instance, that in 1919 the Turkish State refused to sign the Treaty of Sèvres, to grant autonomy or independence to the Kurds, the Armenians, or the Greeks, or even to accept an obligation to ensure the rights of its minorities. The leader of the nationalist forces, Mustafa Kemal Atatürk, established a provisional rebel government and in 1921-22 the Turkish armies under his leadership expelled the Greek communities from Anatolia, where they had lived for more than two thousand years. This grotesque ethnic cleansing was largely condemned by public opinion of the time, but in the face of brute force, the Western Allies, who had other priorities at the time, condoned the fait accompli. In the Treaty of Lausanne of 1923 the Allies accepted the expulsion, which established a population transfer commission to oversee future population exchanges between Greece and Turkey and to ensure a measure of compensation for private property. This horrendous precedent went against the principles of self-determina­tion and the right to one’s homeland, but no one in Europe was prepared to use force against Turkey in order to reverse the expulsions. Prominent critics of the Treaty of Lausanne were Lord Curzon, British Foreign Minister from 1919 to 1924 and participant at the Lausanne Conference, who at that time warned that “the world will pay a heavy penalty for a hundred years to come” for such a “thoroughly bad and vicious solution.”10 Later commentators agreed that the population exchange was not a model of either humanity or wisdom, and its repercussions, economic and political, were considerable. Sir John Hope-Simpson, who also had been intimately involved with the Lausanne Treaty process, observed in 1946 that the exchange of Greeks and Turks had meant an appalling amount of misery and hardship to everyone concerned.11

International treaties on human rights as such did not exist in 1939 or 1945. There were, however, treaties regulating the conduct of belligerents in time of war and providing, inter alia, for the protection of civilians in occupied territory and for the protection of prisoners of war pursuant to the Geneva Convention of 1929. To the extent that Nazi Germany subjected foreign prisoners of war to forced labor, the Convention was violated. Similarly, the Allies violated the Geneva Convention when they did not release German prisoners of war until several years after the conclusion of the war and in the meantime exploited them mercilessly as forced laborers.
Standard-Setting After the Second World War—International

Norms
While the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 (one day before the UN General Assembly adopted the Universal Declaration on Human Rights) does not by its terms prohibit population transfers and the implantation of settlers in occupied territory, this practice may well constitute genocide not only under the terms of the convention but also as a matter of customary international law.12

Article 2 defines genocide as encompassing any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group:


(a) killing members of the group;

(b) causing serious bodily or mental harm to members of the group;

(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) imposing measures intended to prevent births within the group;

(e) forcibly transferring children of the group to another group.
It is not difficult to prove that population transfers have frequently led to enormous loss of life, in direct violation of article 2(a) or 2(c). As noted earlier, the expulsion and enforced flight of some fifteen million ethnic Germans caused the deaths of over two million of them, and there is ample evidence that numerous leaders of the Soviet Union, Poland, and Czechoslovakia intended that loss of life.13

Moreover, the traumatic experience of losing their homes and every link to the land where they were born and where their parents and grandparents were buried certainly also caused serious bodily and mental harm to the surviving members of the group, in violation of article 2(b). It is hardly tenable that those who order or carry out such expulsions do not intend their foreseeable consequences.

The first attempt after the war expressly to criminalize population transfers was taken in the context of the protection of civilians in armed conflict. Indeed, most population transfers have occurred in the context of war. Article 49 of the Fourth Geneva Convention of 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. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.... The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.
In order to put some teeth into the convention, the drafters stipulated in article 146 that the high contracting parties must enact legislation providing effective penal sanctions for persons committing, or ordering to be committed, the grave breaches listed in article 147 of the convention. The category of "grave breaches" includes the unlawful deportation or transfer of persons.

The prohibitions spelled out in the Fourth Geneva Convention apply, in principle, only in situations of international warfare. In situations of armed conflict not of an international character, article 3 of the convention stipulates that the high contracting parties must respect, and suppress the violation of certain minimum rules; notably, to treat humanely all persons taking no active part in the hostilities, to spare them violence to life and person, to refrain from hostage taking, and to refrain from committing outrages upon personal dignity. Deportation surely falls within article 3.

It took nearly three more decades to codify the prohibition of forced removal of civilians in internal armed conflicts. Under Additional Protocol II (1977) to the 1949 Geneva Conventions:
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. Should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition.14

Ethnic Cleansing and the United Nations
The Universal Declaration of Human Rights is a supreme achievement in standard setting. It has been followed by at least fifty conventions, covenants, and protocols.

As the first High Commissioner for Human Rights repeatedly stated, mass population transfers violate the gamut of human rights. Among the hard law provisions that are frequently invoked against such population transfers is article 12 of the Covenant on Civil and Political Rights, which stipulates a right to freedom of movement, to reside in and to return to one’s country.

Par. 4 of article 12 provides: No one shall be arbitrarily deprived of the right to enter his own country.” In its commentary to this provision, the Human Rights Committee has stated:
The right of a person to enter his or her own country recognizes the special relationship of a person to that country. The right has various facets. It implies the right to remain in one's own country. It includes not only the right to return after having left one's own country; it may also entitle a person to come to the country for the first time if he or she was born outside the country (for example, if that country is the person's State of nationality). The right to return is of the utmost importance for refugees seeking voluntary repatriation. It also implies prohibition of enforced population transfers or mass expulsions to other countries.15
Thus, according to the most prestigious United Nations expert Committee on human rights, enforced population transfers are illegal, and all refugees and expellees are entitled to voluntary repatriation.

In the context of the expulsion of 175,000 ethnic Greeks from northern Cyprus by the Turkish Army in 1974 and more recently during the war in the former Yugoslavia, the Security Council, the General Assembly and the United Nations Commission on Human Rights have repeatedly condemned the practice of terrorizing the civilian population to force them to flee and the actual mass expulsions. Such practices have been condemned not just as violations of general international law, but also as international crimes.

The most recent "hard law" development in the area of criminalizing population transfers is manifested in the Statute of the International Criminal Court, which was adopted in Rome on 17 July 1998 by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court." It was stipulated that "deportation or forcible transfer of population" constitutes crimes against humanity under article 7, and that "unlawful deportation or transfer" constitutes war crimes under article 8 of the Statute.16

The most important "soft law" development is contained in the final report of Special Rapporteur Awn Shawkat Al-Khasawneh (a distinguished jurist from Jordan, member of the International Law Commission, and since 1999 a Judge at the International Court of Justice at the Hague) to the United Nations Sub-Commission on the Promotion and Protection of Human Rights.

This Sub-Commission has traditionally played a seminal role by undertaking studies that have shaped the thinking of policy makers and contributed not only to progressive standard-setting but also to the development of monitoring mechanisms and preventive strategies. For instance, following the 1977 Sub-Commis­sion Study by Francesco Capotorti on The Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities,17 a working group was set up to draft the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities,18 which was adopted by the General Assembly in 1992 and led to the establishment of the Commission's Working Group on Minorities.

True to its mandate, the Sub-Commission designated in 1992 two of its members, Mr. Awn Shawkat Al-Khasawneh and Mr. Ribot Hatano (Japan), as Special Rapporteurs, entrusting them with a study on the human rights dimensions of population transfers, including the implantation of settlers.19 In their preliminary report (E/CN.4/Sub.2/1993/17 and Corr.1) Al-Khasawneh and Hatano found that 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. The study was carried on by Mr. Al-Khasawneh, who submitted a progress report in 1994 (E/CN.4/ Sub.2/1994/18 and Corr.1).

From 17 to 21 February 1997 an expert seminar was held in Geneva to assist the Rapporteur in preparing his final report. At the opening of the expert meeting on 17 February 1997 the then High Commissioner for Human Rights, José Ayala Lasso, said:
The right to live in one's native land is a very precious and fundamental right. Compulsory population transfers, including the implantation of settlers and settlements, 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.20

In his final report, to the forty-ninth session of the Sub-Commission in July 1997 (E/CN.4/Sub.2/1997/23 and Corr.1), Special Rapporteur Al-Khasawneh affirms the fundamental human right to live and remain in one's homeland 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 labor, 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 possession, the right to social security, and protection from incitement to racial hatred or religious intolerance.21
In its conclusions Al-Khasawneh's report underlines the fact that forced population transfers not only violate international law but also engage State responsibility and the criminal responsibility of individuals.22 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 several of its provisions:
[Art. 4 stipulates] 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.
[Article 7 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.
[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 excercise 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 10 places specific 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.
Not surprisingly, this 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.

In his final report 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."23 Al-Khasawneh's report was subsequently endorsed by the Commission on Human Rights and by the Economic and Social Council, but it has not yet been adopted by the General Assembly.



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."24 The ILC commentary further 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.25
The International Criminal Tribunal for the Former Yugoslavia has indicted the former Serb leader Radovan Karadžić and the Bosnian Serb military commander Ratko Mladić 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 Karadžić and Ratko Mladić. 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.26
Admittedly, neither Karadžić nor Mladić have as yet been arrested and brought before the Tribunal. But it is clear that the offence of forcible population transfers has been recognized by the international community to be an international crime for which political and military leaders are liable and for which there should be no impunity. The indictment on 27 May 1999 of the then President of Yugoslavia, Slobodan Milošević, for crimes committed in Kosovo, underlines this point.

As far as remedies for the victims, the Dayton Accords of December 1995 have provided in its annex VII for the refugees' right to return to their places of origin. Unfortunately, there has been only partial implementation of this section of the Dayton Accords. On the other hand, the return of ethnic Albanians to their homes in Kosovo gives hope to refugees and expellees the world over.



Regional International Law
On the regional level, collective expulsions violate several provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 1 binds the states parties to "secure to everyone within their jurisdiction the rights and freedoms" defined and guaranteed in the convention, which largely tracks the Universal Declaration of Human Rights. Protocol 4 to the convention specifically provides:
1. No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national.

2. No one shall be deprived of the right to enter the territory of the State of which he is a national.27

The protocol also expressly prohibits the "collective expulsion of aliens."28
Expulsions would similarly violate many of the civil and political rights protected by the American Convention on Human Rights.29 Most important in terms of the right to one's homeland are article 22(5), which provides that "no one can be expelled from the territory of the state of which he is a national or be deprived of the right to enter it," and article 22(9) which prohibits "the collective expulsion of aliens."

Likewise, the Banjul (African) Charter on Human and Peoples' Rights expressly prohibits the "mass expulsion of non-nationals," which is defined as deportation "aimed at national, racial, ethnic or religious groups."30



Regional Case-Law
Regional international jurisprudence also provides some hope for the victims. With regard to the expulsion by Turkish Cypriot forces of some 175,000 Cypriots of Greek ethnic origin from Northern Cyprus to Southern Cyprus, the European Commission on Human Rights found 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)." The Commission furthermore considered that the prevention of the physical possibility of the return of Greek Cypriots, transferred to the south of Cyprus under various intercommunal agreements, to the 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.31

Still more significant is the Judgment of the European Court of Human Rights of 18 December 1996 in the Loizidou v. Turkey case, in which the Court held that the right to property of Mrs. Loizidou, a displaced person from Northern Cyprus, had been violated and in a further Judgment of 28 July 1998 ordered compensation in the in the amount of the equivalent of one million US dollars.

In Case 7964, the Inter-American Commission on Human Rights found that the refusal by Nicaragua to allow the Miskito Indians to return to their ancestral lands would amount to an impermissible restriction of movement and choice of residence in violation of Art. 22 of the American Convention on Human Rights.32 Moreover, in the context of internal displacement of indigenous populations, the Inter-American Commission found that the spoliation of Brazilian Amerindios and their compulsory transfer into the "Yanomani Indian Park" violated their rights under the Convention.33

These regional decisions and reports further illustrate that forced population transfers are universally deemed to be illegal and that the violation of the right to one's homeland is justiciable.



Conclusion
As already noted in the study of Special Rapporteur Al-Khasawneh, the norms and the jurisprudence on the illegality of forced population transfers are consistent. It has now become an imperative to develop an international machinery for ensuring compliance with these norms, to prevent future outbreaks of "ethnic cleansing" and for making effective remedies available to the victims. A clearly demonstrated political will on the part of the international community is a prerequisite for translating law into action and for eradicating the phenomenon of forced population transfers.


1 The opinions expressed in this article are the author's in his personal capacity and do not necessarily represent those of his employers or of the organizations with which he is associated.


2 For the sources of law see article 38 of the Statute of the International Court of Justice: treaties and conventions, customary international law, general principles of law, and the jurisprudence of the highest tribunals.


3 The complete text in German was published in Bonn, 1995, in Dieter Blumenwitz, ed., Dokumentation der Gedenkstunde in der Paulskirche zu Frankfurt-am-Main am 28. Mai 1995: 50 Jahre Flucht, Deportation, Vertreibung, 4. Excerpts from the English original are quoted in de Zayas "The Right to One's Homeland, Ethnic Cleansing, and the International Criminal Tribunal for the Former Yugoslavia," Criminal Law Forum 6 (1995): 257-314 at 291-92; see the documentary appendix to this book.


4 De Zayas, "Population, Expulsion and Transfer," in R. Bernhardt, ed., Encyclopaedia of Public International Law, vol. III, 1997, 1062-1067.


5 Foreign Relations of the United StatesThe Conferences at Malta and Yalta, 979.


6 Kurt Böhme, Gesucht Wird (Munich, 1965), 275; de Zayas, A Terrible Revenge: The Ethnic Cleansing of the East European Germans 1944-1950 (New York, 1994), 81.


7 Christian Tomuschat, “Das Recht auf die Heimat: Neue rechtliche Aspekte,” in Des Menschen Recht zwischen Freiheit und Verantwortung—Festschrift für Karl Josef Partsch, ed. J. Jekewitz (Berlin, 1989), 183-212; Christa Meindersma, “Legal Issues Surrounding Population Transfers in Conflict Situations,” Netherlands International Law Review 41 (1994): 31-93; J. M. Henckaerts, Mass Expulsion in Modern International Law and Practice (Dordrecht, 1985).


8 De Zayas, “The International Judicial Protection of Peoples and Minorities,” in Peoples and Minorities in International Law, ed. C. Brölmann, R. Lefeber, and M. Zieck (Amsterdam, 1993), 253-287.


9 British Yearbook of International Law, 5 (1924): 207-8. See also Lauterpacht, Annual Digest of Public International Law Cases, vol. 2, cases 167, 168. Compare the Chorzow (Königshütte) Factory Case, Judgement No. 9, delivered 26 July 1927, PCIJ, British Yearbook, 1928, vol. 9, 135ff.


10 Quoted in Great Britain, 1944, Parliamentary Debates, Lords, 5s, 130:1120 (speech of Lord Noel-Buxton); see also Georgios S. Streit, Der Lausanner Vertrag und der griechisch-türkische Bevölkerungsaustausch... (Berlin, 1929), 24.


11 G.B., 1946, Parl. Deb., 5s, 139:68.


12 78 U.N.T.S. 277 (entered into force 12 January 1951). The Interntional Court of Justice held in its advisory opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide that the principles underlying the Convention are declaratory of customary international law; 1951 I.C.J. 15.


13 According to former U.S. statesman and professor George Kennan: "The disaster that befell this area [Eastern Germany] with the entry of the Soviet forces has no parallel in modern European experience. There were considerable sections of it where ... scarcely a man, woman or child of the indigenous population was left alive after the initial passage of the Soviet forces; and one cannot believe that they all succeeded in fleeing to the West." George F. Kennan, Memoirs, 1925-1950 (Boston, 1967), 265.


14 Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), adopted 8 June 1977, art. 17, 1125 U.N.T.S. 609 (entered into force 7 December 1978). For the history of this article, see Howard Levie, The Law of Non-international Armed Conflict: Protocol II to the 1949 Geneva Conventions 529/43 (1987).


15 Human Rights Committee, General Comment No. 27, adopted on 18 October 1999, Official Records of the General Assembly, Report of the Human Rights Committee, Supplement No. 40 (A/55/40), vol. I.


16 Rome Statute for the International Criminal Court (A/Conf.183/9, 1998). See also M. Cherif Bassiouni, ed., The Statute of the International Criminal Court. A Documentary History (Ardsley, N.Y., 1998), 41f. The Rome Statute entered into force on 1 July 2002.



17 UNP Sales No. E. 91.XIV.2.


18 GA Res. 47/135, U.N. GAOR, 47th Session, Supp. No. 49, at 210, U.N. Doc. A/47/49 (1992).


19 Resolution 1992/28 of 27 August 1992.


20 Unpublished conference papers available from the Office of the High Commissioner for Human Rights, Geneva. A German translation of excerpts of the statement was published in A. de Zayas, Heimatrecht ist Menschenrecht (Munich, 2001).


21 Al-Khasawneh Report, C/CN.4/Sub.2/1997/23, paras. 14 and 15.


22 Ibid., para. 65.


23 Ibid. para. 72.


24 Draft Code of Crimes against the Peace and Security of Mankind, Report of the International Law Commmission on Its Forty-third Session, U.N. GAOR, 46th session Supp. No. 10, at 268.


25 Ibid. para. 271.


26 Prosecutor v. Karadzic Case No. IT-95-5-I (ICTY 25 July 1995).

27 Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 26 September 1963, art. 3, Eur. T.S. 46 (entered into force 2 May 1968).


28 Id., art. 4.


29 American Convention on Human Rights, 1144 U.N.T.S. 123 (in force 18 July 1978).


30 Banjul (African) Charter on Human and Peoples' Rights, adopted 27 June 1981, art. 12(5), O.A.U. Doc. CAB/LEG/67/3/Rev.5, in force 21 October 1986.


31 In 1983 the European Commission again dealt with the issue and found that the displacement of persons, separation of families and discrimination violated the European Convention. See Christa Meindersma, "Population Transfers in Conflict Situations," Netherlands International Law Review, 1994, 31-83 at 71-72.


32 Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin, OEA/Ser.L/V/III.62 (1984).


33 Report of 5 March 1985, Annual Report of the Inter-American Commission on Human Rights, 1984-85, OEA/Ser.L/V/II.66, doc. 10 rev. 1, Res. 12/85, Case 7615 (Brazil).


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