Practice Relating to Rule 129. The Act of Displacement
Section A. Forced displacement
Iraq’s Law of the Supreme Iraqi Criminal Tribunal (2005) identifies “[u]nlawful deportation or transfer” as a grave breach of the 1949 Geneva Conventions.
Under the Law, “the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory” is a serious violation of the laws and customs of war applicable in international armed conflicts.
With regard to non-international armed conflict, the Law states that “[o]rdering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand” constitutes a war crime.
In its judgment in the Al-Anfal case in 2007, the Iraqi High Tribunal listed the following elements for the crime of forced displacement:
1. The perpetrator must order the dislocation of civil inhabitants.
2. The order should not have vindication as to provide security for concerned civilians or military necessities.
3. The perpetrator must be willing to engender such dislocation via issuing orders.
4. The conduct must be issued within a national armed dispute context and correlated with it.
5. The perpetrator must be aware of factual circumstances which prove the existence of armed conflict.
The Tribunal further stated:
The requirements and elements to prove the crime of dislocating civil inhabitants, as a crime of war, are: issuing orders of dislocating civilians, as long as this/these order(s) are issued due to national armed conflict, whereas the safety of civilians or other military necessities are not taken into consideration. The perpetrator must be willing to engender such dislocation via issuing orders, as well as admitting that such dislocation occurred with no minimum choice …
Issuing an order for displacing the civilian residents should be related to the conflict, unless it was for the safety of the involved civilians or for urgent military reasons … and the crime perpetrator should be able to cause this displacement through issuing this order.
The element to prove that this crime is a war crime, it is a proof that the order of displacement was implemented without any choices.
In 2012, in its Report on Iraqi Children After 2003, the Ministry of Human Rights of Iraq stated:
After the collapse of the dictatorial regime and consequent collapse of state institutions and the continuation of military operations and resulting suffering of children [from] displacement, murder, kidnapping and trafficking among other practices which are a product of wars and bloody conflicts[,] … children and women … are among such vulnerable groups that are least capable to provide protection for themselves.