2015 | Forced Displacements as a War Crime in Non-international Armed Conflicts Under the ICC Statute: Exploring the Horizons of a Wider interpretation complimenting international humanitarian law, by A. Dutt Tiwari
Forced displacements have become a central feature of non-international conflict. In this article, the author starts by discussing the legal framework on forced displacements. He touches upon the prohibition of forced displacements in:
(a) International humanitarian law. The prohibition can be found in article 17 in the second additional protocol to the Geneva Conventions.
(b) Customary international law. Based on state practice and opinio iuris, the prohibition is a rule of customary, and therefore applies to non-state actors as well.
(c ) International criminal law. In the statute of the international criminal court (ICC) forced displacement can be found as a war crime under article 8(2)(e)(vii), and a crime against humanity under articles 7(1)(a)f(g)(h)(k). However, there have been no successful persecutions on any of these two grounds. When article 8(2)(e)(vii) is read restrictively, it could be interpreted that only the actual ordering of forced displacement is a war crime. However, the author argues that 8(2)(e)(vii) of the ICC statute should, in good faith, be interpreted against the background of IHL. In this more extensive interpretation, not only the ordering of the displacements is to be seen as a war crime, but also other ways of (more indirectly) forcing displacement.