Thesis: Deportation as a Crime Against Humanity

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Deportation as a Crime Against Humanity

General considerations on crimes against humanity

The judicial concept of crimes against humanity has always been historically difficult to define, because of several reasons. Both main terms in the concept are hard to place in a certain context and in a framework that can have general acceptance of the elements that, put together, could be indicted on a charge of crimes against humanity. Starting with the end of the 19th century and the beginning of the 20th century, the concept of humanity and related terms such as humane or inhumane (treatment or approaches) came to develop the general perspective on what could later be termed as crimes against humanity and the conditions that a crime would need to meet for it to be labeled in this manner and indicted as such.

As, the name itself suggests that the concept is actually formed of an enumeration of terms that are labeled as crimes against humanity. In this case, the problem is that the respective enumeration may not be exhaustive, but will still need to provide a comprehensive list of crimes that all bear the common characteristics of crimes against humanity. Further more, and this is also very important, it will provide a set of defining characteristics that a certain crime would need to have in order to be labeled as a crime against humanity. These will be listed below, but basically they include a systematic or widespread act, the targeting of the civilian population etc.

Second, the concept may have been designed by victors in treating the losing side and, thus, may have carried along some of the subjectivism of such a scenario. There has always been debate, for example, about the Nuremberg Tribunal and, especially, about its legitimacy. The most important issue was whether the Allies (most notably the Soviets) had not, at different occasions and under certain circumstances, also been involved in this type of crimes. If that had indeed occurred, then what could have been the moral stance that they could use in judging the Germans. The lack of a mutually established platform for judgment to be used for such cases created this problem.

Third, sometimes the concept of crimes against humanity may be overlapping with some other similar concepts, such as war crimes or genocide, it is important thus to properly define its particular segment of definition. All of these are perceived strictly through the fact that they bring a distinct harm to the civilian population. However, if one looks more in depth at these issues, it becomes more clear that some of these are war time acts only, while others aim at the complete extermination of the civilian population according to ethnical, religious or national criteria, while the crimes against humanity encompass a large number of crimes against the civilian population, but without bearing these important characteristics of the other two.

Deportation itself is simply one distinctive form of crime against humanity. Starting with the events in the Turkish Empire in 1915, directed towards the Armenian population, deportation or, in its similar for of forcible transfer or displacement, has been used as a mean to intimidate the civilian population, to cause them harm and even to tacitly worsen its economical condition and, thus, make it weaker.

This paper will aim at analyzing the judicial concept of crimes against humanity and at showing, through different historical examples and case studies, that deportation can be seen as such a crime. At the same time, the paper will want to differentiate deportation from other acts that cannot be included in the category of crimes against humanity, but associate it with similar acts, such as forcible transfers, forms of deportation where the transfer is within the boundaries of the state.

The purpose of the paper will be reached by discussing the definition of crimes against humanity, as provided by the Rome Conference, bringing the concept into context and comparing it with other similar forms of crimes against civilians, such as war crimes and genocides, examining the different acts of deportation and emphasizing the objective element in these crimes and including these acts of deportation in the general framework defined in Rome.

Crimes against humanity

Until the Rome Conference, the best definition of crimes against humanity was used in practice during the Nuremberg and Tokyo War Tribunals and included a list of crimes such as murder, extermination, enslavement and deportation. Until then, the concept was used in relations with the vague interpretation of humane or inhumane act, including in previous acts of deportation or forcible transfer, such as that in 1915 in the Ottoman Empire or during the First World War.

The form of the concept that was used in Nuremberg was not a form that had been conceived through the contribution of all or most governments in the world, but rather an instrument created by the victorious powers of the Second World War in an attempt to create a legal and judicial framework in which the criminals of the war could be judged. It was obviously for the entire world, not only for the victors in 1945, that Nazi Germany could list an impressive, albeit unfortunate, list of crimes against humanity and one would need only determine the right framework and its characteristics in order to be able to judge those responsible for the acts.

The Rome Conference and the International Criminal Court Statute eliminated this perceived singularity: 160 countries participated in the creation of the final statute. In addition to this, the new document had some new and relevant specifications aimed at defined the outreach for crimes against humanity more clearly. The contribution of such a large number of countries in the process of elaborating the final statute of the ICC gave the final provisions much more legitimacy and authority.

One of these was the relationship between a state of armed conflict and crimes against humanity. In the previous interpretation, the two were related, mainly because the latter had occurred during the Second World War and because there was no intervention in internal conflicts between the central authority and the civilian population that might have justified dissociating the two categories of crimes.

During World War II, there was distinctive public assertions and protests against German deportations of civilians, the act being included both as a war crime and as a crime against humanity (Bassiouni, 1999). These acts of deportation were taking place both in the context of the war (as was the case with the deportation of numerous populations during the invasion of the Soviet Union), but also inside Germany with the deportation of the Jewish population. The acts were still, however, associated with the conflict that the countries were part of at the time.

However, the majority of delegations in Rome showed that "such a limitation would have rendered crimes against humanity largely redundant, as they would have been subsumed in most cases with the definition of war crimes" (Robinson, 1999). Such a clause allowed for a significant redefinition of the crimes against humanity concept outside the strict war framework and an inclusion of examples such as crimes of the government against its own population etc.

Another convention that came out of the Rome Conference was that a crime does not require a discriminatory motive to be considered a crime against humanity (Robinson, 1999). There are several things worth referring to here. First of all, as mentioned by Robinson in his paper, such an additional requirement would have made the job of the prosecutor significantly more difficult, mainly because it would have meant an additional issue that would have been required to be proven. The problem would not have necessarily been the extra volume of work, but the fact that the prosecutor might have found it unreasonably more difficult to arrive to a positive conclusion with his case, without the discriminatory clause bringing in an additional element for the case itself.

Secondly and somewhat deriving from what was previous said, including such an additional requirement would have probably dramatically increased the chances that some notorious acts would have been excluded from the category of crimes against humanity simply because they were not politically, ethnically or religiously motivated. The decision was correct: the list of possible motives, to which one could add national and racial, is not sufficiently comprehensive to ensure that no crimes would avoid the label of crimes against humanity exactly because of this additional requirement.

The act also needs to be directed against any civilian population, involving multiple acts and a policy element, and be widespread or systematic (Robinson, 1999). This paper will not aim at discussing the entire debate on this particular point, notably whether the act needs to be both systematic and widespread, but will only show that this generous enumeration, while adding to the difficulty of the prosecutor's case, also includes three very important elements for a crime to be considered a crime against humanity: the victims are civilians, there is a policy and this is either… [END OF PREVIEW]

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