Saif Ansari is a recent graduate of New York University, School of Law. He has previously served under Judge Nonkosi Mhlantla at the Constitutional Court of South Africa and Judge Nicola Lettieri at the Special Tribunal for Lebanon.
1. Introduction
In April 2018, the Prosecutor at the International Criminal Court filed a motion seeking guidance from the Pre-Trial Chamber about whether the court had jurisdiction over the deportation of Rohingya Muslims from Myanmar, a non-state party, to Bangladesh, a state party. In earlier discussions, commentators argued that deportation and forcible transfer are combined into a unified offense in the Rome Statute, and because crossing an international border is an element of deportation but not forcible transfer, the unified crime was complete in Myanmar. Consequently, no essential element of the crime occurred in Bangladesh, depriving the ICC of jurisdiction over the acts of deportation.
In our first post, we showed how the International Criminal Court has jurisdiction over these acts of deportation, regardless of whether or not deportation and forcible transfer are a single crime. To do this, we contested whether an “essential” element is the requisite standard. We used the crime of torture as an analogy, showing how the essential element requirement used in these discussions is of mysterious origins, poorly defined and overly demanding. Applying what we believe are more defensible tests for jurisdiction, we concluded that even if deportation and forcible transfer are a single offense, their unification does not deprive the ICC of jurisdiction over acts of deportation to Myanmar.
In this second post, we argue that deportation and forcible transfer are distinct offenses, even though they are listed in a single provision in the Rome Statute and Elements of Crimes. In effect, deportation and forcible transfer are more akin to Article 8(2)(a)(vii) of the Rome Statute (which prohibits the distinct offences of “[u]nlawful deportation or transfer or unlawful confinement”), than torture (which prohibits the infliction of physical or mental suffering as alternate means of perpetrating the same offense of torture).
On one level, our argument offers an alternate basis for the court to find that the acts of deportation in question took place in Myanmar if it disagrees with our first post. If deportation is a distinct, separate offense, the distinction turns on victims being expelled across a border “to another State,” which is highly germane to the Rohingya situation. On another level, we believe that there are important reasons to preserve the continued existence of deportation quite apart from the issue of jurisdiction in this case. In particular, we are concerned about the interpretative coherence of the Rome Statute, the distinct expressive value of deportation as a separate crime, and for sentencing.
In what follows, we propose five mutually reinforcing arguments as to why deportation remains a single, distinct offense in the Rome Statute and Elements of Crimes, despite the fact that it is listed under the same heading as forcible transfer. First, we show how a literal reading of the Rome Statute and the Elements of Crimes preserve the historical distinction between deportation and forcible transfer. We accept that the interpretation we offer is not the only interpretation available, but we believe it is analytically preferable as a matter of pure hermeneutics, and the only interpretation that squares with the other material we review. Second, we show how the drafters clearly intended for there to be a distinction between deportation and forcible transfer based on whether the displacement was within a state or across an international border. Third, we demonstrate how the ICC itself has consistently retained the distinction in its own practice to date, notwithstanding some curious language in one decision. Fourth, we marshal evidence of state practice to argue that the distinction is also firmly entrenched in customary international law. Fifth, we show why there is a distinction in the first place: because deportation and forcible transfer protect similar but different interests. We conclude that conflating deportation and forcible transfer would be a mistake in law and principle.
2. Article 7(1)(d) preserves the distinction between deportation and forcible transfer
“Deportation or forcible transfer of population” is a crime against humanity under Article 7(1)(d) of the Rome Statute. According to Article 7(2)(d), for purposes of Article 7(1)(d), “‘[d]eportation or forcible transfer of population’ means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.” Article 7(1)(d) of the Elements of Crimes lists the elements of the crime as follows.
Article 7(1)(d)
Crime against humanity of deportation or forcible transfer of population
Elements
- The perpetrator deported or forcibly transferred, without grounds permitted under international law, one or more persons to another State or location, by expulsion or other coercive acts.
- Such person or persons were lawfully present in the area from which they were so deported or transferred.
- The perpetrator was aware of the factual circumstances that established the lawfulness of such presence.
- The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
- The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.
Footnote 12 of the Elements of Crimes says
[t]he term ‘forcibly’ is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment.
Likewise, footnote 13 says
“deported or forcibly transferred” is interchangeable with “forcibly displaced.”
There is some basis to conclude that this definition combines the crimes, but overall, we find these bases unpersuasive. First, if the two offenses were distinct, one might anticipate that they merited separate definitions in the Statute itself, especially if deportation has a cross-border element that marks its particularity. This, we argue, is answered by the terms of the Elements of Crimes we discuss below. Second, the Ruto decision refers to deportation and forcible transfer as “labels” for a single “unique crime.” Nevertheless, we show below how the same paragraph in Ruto also indicates that “[t]he factor of where they have finally relocated as a result of these acts (i.e. within the State or outside the State) in order to draw the distinction between deportation and forcible transfer is thus to be decided by the Trial Chamber.”[1] We come to each of these issues momentarily, but for now, it is sufficient to observe that a coherent literal interpretation of deportation and forcible transfer support the ongoing distinction between the two normatively overlapping offenses.
To begin, just because they are grouped under the same heading, does not mean deportation and forcible transfer are the same crime. Article 7(1)(d) is an example of a disjunctive crime, or a crime that can be committed in more than one way. Disjunctive crimes are usually denoted by the insertion of the word “or” in the name of the crime and/or an element of the offense. But as the OTP shows, the Elements of Crimes lists disjunctive crimes in different ways. For example, sexual offenses under Article 7(1)(g) are listed under different headings, but “using, conscripting and enlisting children” under Article 8(2)(e)(vii) are listed under one heading. In terms of substance, the Pre-Trial Chamber in Lubanga held that the very use of “or” in the first element shows that “conscripting or enlisting” child soldiers “or using them to participate actively in hostilities” are “separate offenses” under Article 8(2)(e)(vii).[2] We believe the same is true of deportation and forcible transfer.
A systematic interpretation of the definition of deportation or forcible transfer in the Elements of Crimes supports this view. The reference to “deportation or forcible transfer” in the headings of the Elements arguably initiates a sequencing that the entire structure of the definition subsequently follows. The word “deportation” comes first in the heading, then “deported” precedes “forcibly transferred” in Element 1. “[T]o another State” is also the first location listed by Element 1. Pursuant to the same logic, “forcible transfer” follows “deportation” in the heading, marking a sequence that is matched by the words “forcibly transferred” following “deported,” and “location” coming after “to another State.” Through this sequence, “deportation” corresponds to “deported…to another State” and “forcibly transfers” corresponds to “another… location.” Systematic structure is, of course, only one attribute of good drafting, but we argue that it weighs in favor of treating deportation and forcible transfer as distinct crimes, especially when other material we review unequivocally support this reading.
Despite some lamentable ambiguity in drafting, it is clear here that footnote 13 of the Elements of Crimes does not conflict with the systematic reading we offer here. According to footnote 13, “‘[d]eported or forcibly transferred’ is interchangeable with ‘forcibly displaced.’” Some believe this language suggests that deportation and forcible transfer, taken separately, are identical. We are not persuaded by this view and believe that much discredits it. Footnote 13 says that the terms “deported and forcibly transferred” and “forcibly displaced” are “interchangeable,” not that deportation and forcible transfer are the same crime. The difference is important. In effect, footnote 13 implies that forced displacement is another description for “deported or forcibly displaced,” which is not to say that “deported,” “forcibly transferred,” and “forced displacement” are legally synonyms. Mathematically, the interpretation we offer based on the positioning of the quotation marks around “deported or forcibly transferred” as a pair is the difference between (A + B) = C and A = B = C. Put another way, it would not be safe to deduce from the fact that, because apples and oranges are fruit, apples are oranges. So, we favor the view that footnote 13 indicates that “forcibly displaced” is a term of convenience that can be used to refer to both crimes together.
Whether by coincidence or design, courts have used the closely related term “forced displacement” in precisely this fashion, especially in circumstances where the distinction between the two offenses is of no factual significance. Although the negotiating history of the Rome Statute is silent as to the intended meaning of footnote 13, it was likely inserted in light of the ICTY’s jurisprudence, which had employed the term “forcible displacement” as an umbrella in these circumstances. In 2000, two years before the ICC Elements of Crimes were first drafted, the trial judgment in Blaškić used “forced displacement” as a synonym for “deportation or forcible transfer of civilians” when assessing acts that could constitute persecution as a crime against humanity.[3] This use of “forced displacement” as a means of referring to both crimes together instigated a major trend, even as the same courts decided that deportation was distinguishable from forcible transfer based on whether the victim was displaced across established borders. We come to the caselaw about cross-border transfers momentarily, but for now, we pause to provide slightly more evidence of the popularity of “forced displacement” as an umbrella term.
The habit of using “forcible displacement” in this manner has spanned the better part of two decades. In the appeal judgment in Krnojelać, for instance, the ICTY held that for purposes of the crime against humanity of persecution, it does not matter whether a given act of “forcible displacement” constituted deportation or forcible transfer.[4] As the ICTY subsequently held in the appeal judgment in Simić, what matters is whether the act of “forcible displacement” was carried out with the requisite discriminatory intent.[5] Most recently, the trial judgment in Milutinović held that “[a] number of elements of these offences are the same and are discussed herein under the heading ‘forcible displacement.’”[6] Therefore, a long line of cases at the ICTY refer to deportation and forcible transfer together as “forcible displacement,” usually for the purpose of proving the distinct crime of persecution. As we will see below, this caselaw also insists that there is a formal legal difference between deportation and forcible transfer. Thus, this body of jurisprudence reinforces our view that footnote 13 of the Elements of Crimes merely creates a linguistic label for the two crimes, without altering their separate legal meaning.
Finally, the ICC has also referred to “forcibly displaced” as a generic label that serves as a placeholder until such time as the distinction between deportation and forcible transfer is established at trial. In Ruto, the Pre-Trial Chamber said that it is not necessary to distinguish between the two “labels” at the pre-trial stage, not because the distinction is irrelevant, but because it is not yet apparent which of the two was committed. The Pre-Trial Chamber delegated the task of determining whether acts of forcible displacement constituted deportation or forcible transfer to the Trial Chamber based on where victims were finally relocated to—“i.e. within the State or outside the State.”[7] But in Ruto, it was apparent even at the pre-trial stage that people were “forcibly displaced” somewhere, wherever they ended up.[8] Therefore, in spite of the seemingly contradictory reference to “labels” of a “unique crime,” Ruto shows that the ICC itself has referred to deportation and forcible transfer together as “forcible displacement,” in line with the meaning we ascribe to footnote 13. For all these reasons, a literal interpretation of the provision suggests that the offenses remain distinct.
3. The drafters intended for there to be a distinction between deportation and forcible transfer
The literal interpretation we offer is, to our minds, the only interpretation that can be squared with the negotiating history of the Rome Statute and Elements of Crime. Most importantly, numerous sources indicate that the drafters of the Rome Statute intended for there to be a legal distinction between deportation and forcible transfer, and we have unearthed no evidence that suggests otherwise. We set out some of these sources here in chronological order:
- The International Law Commission’s commentary on the predecessor to the Rome Statute explicitly references the distinction between deportation and forcible transfer as well as the fact that transfer across a border demarcates the two crimes. According to the ILC, “[w]hereas deportation implies expulsion from the national territory, the forcible transfer of population could occur wholly within the frontiers of one and the same State.”[9] Of course, the drafters could have written Article 7(1)(d) in generic terms so as to encompass both, but they did not. They retained the distinction between deportation and forcible transfer out of a desire to ensure that the two remained separate crimes.
- At the Preparatory Committee in 1996, there were three drafts of the relevant provision prepared, all of which mentioned deportation but only one of which mentioned forcible transfer in brackets.[10] Again, this suggests that the drafters considered whether there should be a distinction between forcible displacement within a state and across an international border. As the Members of the Canadian Partnership for International Justice argue in an amicus brief submitted to the ICC in support of the OTP’s request in the present case, “[t]his reflects the drafters’ awareness that they were dealing with separate crimes.”
- Several authors who were present at the negotiating of this provision argue that states intended to maintain the distinction. According to Hebel and Robinson, “‘forcible transfer of population’ was added as an alternative to ‘deportation’ so as to encompass large-scale movements within a country’s borders.”[11] This addition and the basis for it, suggest that the language of the Rome Statute and Elements of Crimes we review above sought to create an additional complementary offense, not deliberately collapse deportation into a broader joint crime.
- Similarly, Hall and Stahn report that that early versions of the section show that the drafters distinguished between “mass deportations or forced transfer of persons from the territory of a State [or from an area within a State].”[12] Apparently, the drafters were also given a paper by Amnesty International indicating that “forcible transfer” was inserted in order to create a distinction between forcible displacement within a state and across an international border. According to Hall and Stahn, no one objected to the distinction.[13]
All in all, we believe that these sources support the literal interpretation we offer. They provide this support by reinforcing the co-existence of two separate crimes and by providing no indication that States intended the fairly radical step of unifying two offenses into one such that deportation’s unique character disappeared.
4. The ICC usually treats deportation and forcible transfer as separate crimes
The ICC itself has distinguished deportation and forcible transfer on a number of occasions. As we have shown, in Ruto, the ICC says that “deportation” and “forcible transfer” are different “labels” for what is a “unique crime” based on the final destination of the victim.[14] But as we have also noted, the same paragraph in Ruto goes on to distinguish between deportation and forcible transfer precisely on the basis of a cross-border element by stating that “[t]he factor of where they have finally relocated as a result of these acts (i.e. within the State or outside the State) in order to draw the distinction between deportation and forcible transfer is thus to be decided by the Trial Chamber.”[15]
From this language, we deduce that “deportation” and “forcible transfer” are not merely descriptions of the underlying conduct. Indeed, it would be curious for the Pre-Trial Chamber to delegate the task of distinguishing between deportation and forcible transfer to the Trial Chamber unless there was a legal distinction between the two concepts that required consideration. Thus, despite the reference to a “unique crime,” the Court actually treats deportation and forcible transfer as separate crimes based on whether the victim crossed an international border. Importantly, a large number of cases before the ICC are consistent with this reading even though the rationale for their approach is not articulated explicitly.
In a host of other cases, the Pre-Trial Chamber has referenced either deportation or forcible transfer separately, undermining the notion that “deportation or forcible transfer” is a single offense. More precisely, in a range of arrest warrants and confirmations of charges, the ICC has described the conduct in question as “forcible transfer” only, without even mentioning deportation. The failure to reference the entire unified offense of “deportation or forcible transfer” suggests that, as we suspected, the two elements come apart and can stand alone. These cases are not rare—there appear to be at least nine such decisions.[16] For example, in the court’s arrest warrant for Omar Al Bashir, only forcible transfer is alleged.[17] There is no deportation charge because it was clear even at the pre-trial stage that any forcible displacement occurred “throughout the Darfur region” only.[18] If there was no difference between the two, or Article 7(1)(d) referred only to a joint crime, the ICC would have referenced deportation and forcible transfer together.
So in cases in which there is no allegation of a border-crossing, or it is apparent at the pre-trial stage that any forcible displacement must have taken place within national borders, the ICC confines itself to an analysis as to whether there are substantial grounds to believe that only forcible transfer was committed. But as decisions like Ruto show, to the extent to there is an allegation that deportation was committed or it is uncertain whether there was a border-crossing, the ICC references both deportation and forcible transfer. In this light, the ICC clearly treats deportation and forcible transfer as separate crimes in practice. This corroborates a literal interpretation of the elements of Article 7(1)(d), our analysis of footnote 13, and the intent of the drafters we have discussed.
5. Customary international law establishes that deportation is a distinct offense
To the extent that Article 7(1)(d) is ambiguous, Article 21 of the ICC Statute provides for the application of “applicable treaties and the principles and rules of international law.” These rules of international law are clear: deportation is a long-standing offense in its own right. The crime predates WWII, having been a war crime long before the Allies created the corresponding crime against humanity. In the wake of the war, the crime against humanity of deportation was codified in Article 6(c) of the Nuremberg Charter, Article 5(c) of the Tokyo Charter, and Article II(1)(c) of Control Council Law No. 10. As a result, deportation came to protect German nationals, stateless people and other people not previously protected by the war crime of deportation.
Decisions like the trial judgment in Krnojelac[19] and the decision on motion for judgement of acquittal in Milošević[20] at the ICTY draw on WWII caselaw to show that deportation is established as a separate, standalone offense in customary international law. For example, in Baldur Von Schirach, the Nuremberg Tribunal convicted the Nazi politician of deportation for the forcible displacement of 60,000 Jews from Vienna to concentration camps in occupied Poland.[21] And in Milch, the tribunal convicted a member of the German forces of deportation for purposes of slave labour both as a war crime and a crime against humanity.[22] In a concurring opinion, Judge Philip argued “[d]isplacement of groups of persons from one country to another is the proper concern of international law in as far as it affects the community of nations.”[23]
Moreover, deportation is clearly distinguished from forcible transfer, which is treated as an “other inhumane act.” The trial chamber in Krstić held that “[b]oth deportation and forcible transfer relate to the involuntary and unlawful evacuation of individuals from the territory in which they reside. Yet, the two are not synonymous in customary international law. Deportation presumes transfer beyond State borders, whereas forcible transfer relates to displacements within a State.”[24] The trial chamber drew the same distinction in Krnojelac, holding that deportation required forcible displacement across a national border, whereas forcible transfer required forcible displacement within national borders.[25] As a result, the trial chamber in Naletilić held that the jurisprudence of the court had established that deportation and forcible transfer were different crimes based on whether the victim had been forcibly displaced within a state or across the border.[26]
Admittedly, there was one rogue decision that dispensed with the cross-border element of deportation as a way of collapsing the distinction between forcible transfer and deportation, but this reasoning was quickly overturned then consistently rejected ever since. In an outlier judgment, the trial chamber in Stakić declared that crossing a border was not an element of deportation after all. Disregarding precedent, the trial chamber also held that deportation protects “the right and expectation of individuals to be able to remain in their homes and communities without interference by an aggressor.”[27] Thus, according to this judgement, the final destination of the victim was of no relevance. The novel interpretation of deportation in Stakić was born of Judge Schomburg’s distaste for the open-ended scope of “other inhumane acts” as a residual category of crimes against humanity. However, his attempt to remove forcible transfer from “other inhumane acts” then force it into deportation was quickly rejected.
In the Stakić appeal, the ICTY clarified that deportation is forcible displacement “across a de jure state border or, in certain circumstances, a de facto border.”[28] According to the appeals chamber, crossing an international border became an element of deportation with the adoption of the Geneva Conventions and Additional Protocols after WWII.[29] Every decision since that time has cited the appeals judgment in Stakić as establishing once and for all the requirement that deportation be across a border of some kind. As a result, the appeal judgment in Stakić reflects the current consensus that deportation is a distinct offense in its own right, that deportation and forcible transfer are separate offenses, and that deportation is forcible displacement across an established border. Thus, customary international law seems to provide yet another basis for treating the two offenses as distinct.
6. Deportation and forcible transfer protect different legal interests
Deportation and forcible transfer as crimes against humanity protect an interest in peaceful residence or the rights and expectations that ordinarily inhere in a person’s abode or home. In the appeal judgment in Stakić, the ICTY holds that “[t]he protected interests underlying the prohibition against deportation include the right of the victim to stay in his or her home and community and the right not to be deprived of his or her property by being forcibly displaced to another location.”[30] This is reflected in the very definition of “displacement.” In the trial judgment in Prlić, the ICTY holds that displacement or “removal” for purposes of deportation occurs when a person travels so far away from home that they are no longer able to effectively enjoy these rights.[31] But as the OTP shows, it is one thing to be expelled from one’s home, and forced to flee to another part of the same country, but it is quite another to be forced to flee across the border to another country altogether. According to the OTP, “deportation also protects a further set of important rights: the right of individuals to live in the particular State in which they were lawfully present—which means living within a particular culture, society, language, set of values, and legal protections.”[32]
In other words, a person forced to flee a country incurs an additional harm—the violence of being thrown into a completely new socio-cultural milieu in which he or she has a radically different legal and political status. Of course, there are any number of ways a court might characterize the interests that underlie deportation and forcible transfer. Reasonable people will differ about what these interests are, but this disagreement around the fringes does not camouflage the widely held view that there is an important normative difference here—the difference between being forced to flee from London to Manchester, and being forced to flee from London to Moscow. Obviously, in any one case, the harm incurred by the victim might vary. Say a person lives near the border, and is forcibly displaced far away to the other side of the same country, depriving them of their culture and familial connections. In certain circumstances, this may be more serious than the harm they would have incurred were they forcibly displaced just across the border. This exception to the rule, however, does not mean that the interests that underlie deportation and forcible transfer are the same, or that deportation is not worse than forcible transfer in the majority of cases. We believe that the Rome Statute as well as the ICC itself appreciate this important difference.
7. Conclusion
Although the definition of deportation and forcible transfer in the Rome Statute and the Elements of Crimes cannot be held up as an exemplar of legislative clarity, the factors we have reviewed suggest that deportation and forcible transfer remain distinct offenses. This view is supported by a systematic interpretation of the Elements of Crimes, by evidence that the drafters clearly intended this result, and by customary international law. What is more, notwithstanding the Ruto decision which appears to have attempted to have things both ways, the ICC itself has consistently treated deportation and forcible transfer as separate crimes in its decisions thus far. Of course, there may be factual scenarios in which treating these two crimes as if they were the same is legally innocuous and practically helpful, as the ICTY cases on “forced displacement” show. In the case of the Rohingya Muslims, however, it matters a great deal whether they were forcibly displaced within Myanmar or across the border to Bangladesh, so one cannot brush aside legal formalities. Ultimately, whether or not the Court intervenes in Myanmar and Bangladesh is a difficult moral, political and practical question, but we do not believe the law we have addressed here precludes it.
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[1] The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, para. 268.
[2] Lubanga Trial Judgment, para. 609.
[3] Blaškić trial judgment, para. 234.
[4] Krnojelac appeal judgment, para. 224.
[5] Simic appeal judgment, para. 172 (“The Appeals Chamber recalls that for the purposes of a persecutions conviction, it is not necessary to distinguish between the underlying acts of “deportation” and “forcible transfer” because the criminal responsibility of the accused is sufficiently captured by the general concept of forcible displacement.”). Early cases at the ICTY also distinguished between “forcible displacement” within or across national borders. In Krstić, the trial chamber held that “[s]ince the Srebrenica civilians were displaced within the borders of Bosnia-Herzegovina, the forcible displacement may not be characterised as deportation in customary international law.” See Krstić trial judgment, para. 531. The trial chamber also cited Kupreškić, in which it held that “forcible displacement” was another inhumane act for purposes of article 5(i) of the ICTY statute, whether it took place within a state or across an international border. See Kupreškić trial judgment, para. 523.
[6] Milutinovic trial judgment, para. 163.
[7] Ruto, supra fn. 1, para. 268.
[8] Id.
[9] Draft Code of Crimes Against the Peace and Security of Mankind with Commentaries, 1996, Article 18(g), commentary, p. 49. See also footnote 27 of the OTP brief, which makes the same reference.
[10] Christopher K. Hall and Carsten Stahn, The Rome Statute of the International Criminal Court: A Commentary, 3rd ed (Oxford: Hart, 2016), “Article 7: Jurisdiction, Admissibility and Applicable Law,” p. 194, fn. 293.
[11] H von Hebel and D Robinson, The International Criminal Court: the making of the Rome Statute: Issues, Negotiations, Results, “Crimes Within the Jurisdiction of the Court,” p. 99.
[12] [12] Christopher K. Hall and Carsten Stahn, The Rome Statute of the International Criminal Court: A Commentary, 3rd ed (Oxford: Hart, 2016), “Article 7: Jurisdiction, Admissibility and Applicable Law,” p. 96, fn. 300.
[13] Id.
[14] Ruto, supra fn. 1, para. 268.
[15] Id.
[16] See, (1), Prosecutor v Harun and Kushayb, ICC PT. Ch. I, Decision on the Prosecution Application under Article 58(7) of the Statute, ICC-02/05-01/07-1.Corr, 27 April 2007, pp. 45, 48, 56 (Deportation is not discussed at all. There is only a forcible transfer charge, discussed in paras. 69 and 74, under counts 9, 20 and 51, for forcible displacements throughout Sudan.); (2), Prosecutor v Harun and Kushayb, ICC PT. Ch. I, Warrant of Arrest for Ahmad Harun, ICC-02/05-01/07-2, 27 April 2007, pp. 7, 10, 15-16 (There is no discussion of deportation. There are only forcible transfer charges for forcible displacements throughout Sudan, under counts 9, 20 and 51.); (3), Prosecutor v Harun and Kushayb, ICC PT. Ch. I, Warrant of Arrest for Ali Kushayb, ICC-02/05- 01/07-3-Corr, 27 April 2007, pp. 8, 10, 16-17 (Counts 9, 10, 20, and 51 discuss forcible transfer only. There is no discussion of deportation, the warrant being only for forcible transfers in Sudan.), (4), Prosecutor v Al Bashir, ICC PT. Ch. I, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, 4 March 2009, p. 92 (There is only a forcible transfer charge—no deportation charge. The pre-trial chamber concludes that there are reasonable grounds to conclude that people were merely displaced “throughout the Darfur region.” See para. 100.); (5), Prosecutor v Al Bashir, ICC PT. Ch. I, Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-1, 4 March 2009, pp. 7-8 (The arrest is issued for forcible transfer, among other things. Deportation is not included and not mentioned in the warrant. See pp. 6-7.); (6), Prosecutor v Al Bashir, ICC PT. Ch. I, Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-95, 12 July 2010, p. 6 (There is only a forcible transfer charge. There is no discussion of deportation. See pp. 6-7.); (7), Prosecutor v Hussein, ICC PT. Ch. I, Public redacted version of “Decision on the Prosecutor’s application under Article 58 relating to Abdel Raheem Muhammad Hussein”, ICC-02/05-01/12-1-Red, 1 March 2012, pp. 29-30 (Counts 8, 18 and 41 concern forcible transfer. The allegation made by the prosecution is that people were forced from their homes in the Wali Salih locality in West Darfur, to other places in the same locality. Deportation is not mentioned at all.; (8), Prosecutor v Hussein, ICC PT. Ch. I, Warrant of Arrest for Abdel Raheem Muhammad Hussein, ICC-02/05-01/12-2, 1 March 2012, pp. 8, 11 (There is a forcible transfer charge, but no deportation charge. Deportation is not even mentioned.); and, (9), Prosecutor v Ntaganda, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, ICC-01/04-02/06-309, 9 June 2014, paras. 36, 64-68, p. 63 (Counts 12 and 13 concern forcible transfer of population and displacement of civilians as a crime against humanity and as a war crime. There is no charge or mention of deportation.).
[17] Prosecutor v Al Bashir, ICC PT. Ch. I, Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-1, 4 March 2009.
[18] Id., p. 6.
[19] Krnojelac trial judgment, paras. 472-5. See also fn. 1429.
[20] Prosecutor v Milošević, Decision on Motion for Judgement of Acquittal, paras. 49-52.
[21] International Military Tribunal Judgment, Vol I, p. 319.
[22] Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No.
10, Vol. II, pp. 773-879.
[23] Id., p. 865.
[24] Krstić trial judgment, paras. 521
[25] Krnojelac trial judgment, para. 474;
[26] Naletilić trial judgment, para. 670.
[27] Stakić trial judgment, para. 677
[28] Stakić appeal judgment, para. 278
[29] Id., paras. 292-4.
[30] Stakić appeal judgment, para. 277.
[31] Prlić trial judgment, para. 49.
[32] OTP request, para. 17.