Population Transfer - Changing Status in International Law

Changing Status in International Law

The view of international law on population transfer underwent considerable evolution during the 20th century. Prior to World War II, a number of major population transfers were the result of bilateral treaties and had the support of international bodies such as the League of Nations. Even the expulsion of Germans from central and eastern Europe after World War II was apparently sanctioned in article 13 of the Potsdam communiqué, although research has shown that both the British and the American delegations at Potsdam strongly objected to the size of the population transfer that had already taken place and was accelerating in the summer of 1945. The principal drafter of this provision, Sir Geoffrey Harrison, explained that this article was not intended to approve the expulsions but to find a way to transfer the competence to the Control Council in Berlin so as to regulate the flow. The tide started to turn when the Charter of the Nuremberg Trials of German Nazi leaders declared forced deportation of civilian populations to be both a war crime and a crime against humanity, and this opinion was progressively adopted and extended through the remainder of the century. Underlying the change was the trend to assign rights to individuals, thereby limiting the rights of states to make agreements which adversely affect them.

There is now little debate about the general legal status of involuntary population transfers: Where population transfers used to be accepted as a means to settle ethnic conflict, today, forced population transfers are considered violations of international law. No legal distinction is made between one-way and two-transfers, since the rights of each individual are regarded as independent of the experience of others.

Article 49 of Fourth Geneva Convention (adopted in 1949 and now part of customary international law) prohibits mass movement of people out of or into of occupied territory under belligerent military occupation:

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. ... The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

An interim report of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities (1993) says:

Historical cases reflect a now-foregone belief that population transfer may serve as an option for resolving various types of conflict, within a country or between countries. The agreement of recognized States may provide one criterion for the authorization of the final terms of conflict resolution. However, the cardinal principle of "voluntariness" is seldom satisfied, regardless of the objective of the transfer. For the transfer to comply with human rights standards as developed, prospective transferees must have an option to remain in their homes if they prefer.

The same report warned of the difficulty of ensuring true voluntariness: "some historical transfers did not call for forced or compulsory transfers, but included options for the affected populations. Nonetheless, the conditions attending the relevant treaties created strong moral, psychological and economic pressures to move."

The final report of the Sub-Commission (1997) invoked a large number of legal conventions and treaties to support the position that population transfers contravene international law unless they have the consent of both the moved population and the host population; moreover, that consent must be given free of direct or indirect negative pressure.

"Deportation or forcible transfer of population" is defined as a crime against humanity by the Rome Statute of the International Criminal Court (Article 7). The International Criminal Tribunal for the Former Yugoslavia has put on trial, and in some cases has convicted, a number of politicians and military commanders indicted for forced deportations in that region.

Ethnic cleansing encompasses: "Deportation or forcible transfer of population", and the force involved may involve other crimes including crimes against humanity. Nationalist agitation can harden public support, one way or the other, in favor of or against population transfer as a solution to current or possible future ethnic conflict while these attitudes can be cultivated by supporters of either plan of action with its supportive propaganda used as a typical political tool by which their goals can be achieved.

Timothy V. Waters argues in "On the Legal Construction of Ethnic Cleansing" that the expulsions of the ethnic German population east of the Oder-Neisse line the Sudetenland and elsewhere in Eastern Europe without legal redress (cf. the Expulsion of Germans after World War II ) has set a legal precedent that can permit future ethnic cleansing of other populations under international law. His paper has, however, been rebutted by Dr. Jakob Cornides in the study "The Sudeten German Question after EU Enlargement"