Practice Relating to Rule 129. The Act of Displacement
Section A. Forced displacement
Canada’s LOAC Manual (1999) provides: “In no circumstances may a protected person be transferred to a state where he or she has reason to fear persecution on account of his political opinions or religious beliefs.”
The Manual further states: “These core provisions which continue in effect preserve the right to a … protection against forced transfers, evacuations and deportations.”
The manual specifies: “The following measures of population control are forbidden at all times: … deportations”.
With respect to non-international armed conflicts in particular, the manual states: “It is forbidden to displace the civilian population for reasons connected with the conflict.”
The manual also states: “In the case of civilians in the hands of the adverse party, it is also a grave breach: a. to unlawfully deport or transfer a protected person”.
Moreover, the manual considers that the “deportation or transfer of all or parts of the population of that territory within or out of the territory” is a grave breach of the 1977 Additional Protocol I and that deportation is a crime against humanity.
Canada’s LOAC Manual (2001) states in its chapter on rights and duties of occupying powers:
1204. Termination of occupation
2. The general termination of hostilities does not automatically terminate occupation. Occupation does not terminate until a state exercises sovereign authority over the area as part of its own territory. Most of the [1949 Geneva Convention IV] provisions concerning occupied territory continue in effect for one year after the general termination of hostilities. Thereafter, a number of core provisions continue in effect until the occupation is in fact terminated.
3. These core provisions, which continue in effect, preserve the right to basic humanitarian treatment, the right to a fair trial, and protection against forced transfers, evacuations and deportations.
1223. Control of persons in occupied territory
3. The following measures of population control are forbidden at all times:
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual states: “In the case of civilians in the hands of the adverse party, it is also a grave breach … to unlawfully deport or transfer a protected person”.
The manual further states that the “deportation or transfer of all or parts of the population of that territory within or out of the territory” constitutes a grave breach of the 1977 Additional Protocol I.
The manual also refers to deportation as a crime against humanity.
In its chapter on non-international armed conflicts, the manual states:
It is forbidden to displace the civilian population for reasons connected with the conflict unless their security or imperative military reasons so demand. If they do have to be displaced, arrangements must be made, if possible, for their shelter, hygiene, health, safety and nutrition.
Canada’s Geneva Conventions Act (1985), as amended in 2007, provides: “Every person who, whether within or outside Canada, commits a grave breach [of the 1949 Geneva Conventions or of the 1977 Additional Protocol I] is guilty of an indictable offence”.
Canada’s Crimes against Humanity and War Crimes Act (2000) provides that genocide, crimes against humanity and war crimes defined in Articles 6, 7 and 8(2) of the 1998 ICC Statute are “crimes according to customary international law” and, as such, indictable offences under the Act.
In the Rudolph and Minister of Employment and Immigration case
in 1992, Canada’s Federal Court of Appeal upheld an order for the removal from Canada of the accused, a German national who, during the Second World War, had requested and supervised the deportation and use of foreign civilians as slave labourers in the production of V-2 rockets, on the ground that he had committed outside Canada an act that constituted a war crime.
In 2011, in the XXXX case, the Immigration Division of Canada’s Immigration and Refugee Board declared Mr. XXXX inadmissible to Canada on grounds of, inter alia, complicity in crimes against humanity. The Division stated:
158. The credible evidence on the history of the former Ethiopia shows that between the start of the 1960s and the fall of the Lt.-Col. Mengistu’s regime in February 1992 various rebel groups and national liberations fronts engaged in wars of liberation with the Ethiopian government based in Addis Ababa. That war lasted thirty years and cost the lives of an untold number of victims. One of the leading rebel groups/liberation fronts was the EPLF [Eritrean People’s Liberation Front] …
197. … The Amnesty International [R]eport [for 1992] states that the EPLF forcibly expelled about 120,000 people from Eritrea in June 1992. About 120,000 people were expelled. 80,000 were captured Ethiopian government soldiers and dependants. However, the persons expelled also included civilians such as Ethiopian teachers and former officials. According to the Amnesty International Report the people were put across the border without transport[,] resulting in hundreds dying of starvation or illness in transit camps or while making their way south. The acts, which are offences under the Crimes Against Humanity and War Crimes Act, were perpetrated in a widespread and systematic fashion against a civilian population.
198. I find that the credible evidence considered in relation to the six factors for determining complicity establishes that Mr. XXXX is complicit in the commission or omission of an act that constitutes an offence under the Crimes Against Humanity and War Crimes Act
. I find that the withholding of food by the destruction of famine relief supplies, deportation and expulsion are inhumane acts as set out in the definition for “crimes against humanity” under the Crimes Against Humanity and War Crimes Act
In 2013, in the Sapkota case
, Canada’s Federal Court dismissed a request for review of a decision denying refugee protection to the applicant on grounds of complicity in crimes against humanity in Nepal between 1991 and 2009. While reviewing the submissions of the respondent, Canada’s Minister of Citizenship and Immigration, the Court stated: “The Respondent notes that the Rome Statute of the International Criminal Court
… is endorsed in Canada as a source of customary law.”
In 2005, in a statement before the UN Commission on Human Rights on the human rights situation in Sudan, made on behalf of Canada, Australia and New Zealand, the representative of Canada stated: “To our dismay, serious abuses of human rights and international humanitarian law have become common place in Darfur, including … forced displacement”.