In the Stakić Appeal Judgement the Appeals Chamber found that the participation of an NGO in facilitating displacements does not in and of itself render an otherwise unlawful transfer lawful. Pursuant to this approach, the Appeals Chamber in the Simić case found that the presence of representatives from the UNPROFOR and the ICRC during some of the exchanges that took place did not render the displacements at issue lawful, nor did it lead to the conclusion that the forcible displacements were of insufficient gravity to rise to the level of persecution. See paragraph 180. 

At paras 284 to 286 of the Judgement, the Appeals Chamber considered the issue of displacement for humanitarian reasons. It concluded:

Although displacement for humanitarian reasons is justifiable in certain situations,[1] the Appeals Chamber agrees with the Prosecution that it is not justifiable where the humanitarian crisis that caused the displacement is itself the result of the accused’s own unlawful activity.[2]

151. The Appeals Chamber notes that the Trial Chamber appears to use the terms deportation and forcible transfer interchangeably. The Geneva Conventions prohibit forcible transfers and deportation. Article 49 of Geneva Convention IV provides that “[i]ndividual 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.” Article 147 of Geneva Convention IV, listing grave breaches to which Article 146 relates, refers to “unlawful deportation or transfer or unlawful confinement of a protected person.” Article 85 of Additional Protocol I prohibits “the transfer by the occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or part of the population of the occupied territory within or outside this territory in violation of Article 49 of the Fourth Convention.” In addition, Article 17 of Additional Protocol II provides:

1. The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand. Should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition.

2. Civilians shall not be compelled to leave their own territory for reasons connected with the conflict.

152. The Appeals Chamber in the Krnojelac case held that:

 Forcible displacements, taken separately or cumulatively, can constitute a crime of persecution of equal gravity to other crimes listed in Article 5 of the Statute. […]

The Appeals Chamber concludes that displacements within a state or across a national border, for reasons not permitted under international law, are crimes punishable under customary international law, and these acts, if committed with the requisite discriminatory intent, constitute the crime of persecution under Article 5(h) of the Statute.[1]

153. In light of the foregoing analysis and jurisprudence, the Appeals Chamber considers that at the time relevant to the Indictment in this case, deportation, forcible transfer, and forcible displacement constituted crimes of equal gravity to other crimes listed in Article 5 of the Statute and therefore could amount to persecutions as a crime against humanity.

217.    The Appeals Chamber will now examine which acts of displacement may constitute persecution when committed with the requisite discriminatory intent and whether the acts alleged by the Prosecution were such that they were acts constituting the crime of persecution. The Appeals Chamber holds that, in order to do this and contrary to what the Prosecution claims, it is not necessary to define deportation as “an umbrella term that covers acts of forcible displacement, whether internal or cross-border” so as to consider whether these acts were such as to constitute the crime of persecution.

218.    The Appeals Chamber holds that acts of forcible displacement underlying the crime of persecution punishable under Article 5(h) of the Statute are not limited to displacements across a national border. The prohibition against forcible displacements aims at safeguarding the right and aspiration of individuals to live in their communities and homes without outside interference. The forced character of displacement and the forced uprooting of the inhabitants of a territory entail the criminal responsibility of the perpetrator, not the destination to which these inhabitants are sent.

219.    The Appeals Chamber holds that the crime of persecution may take different forms. It may be one of the other acts constituting a crime under Article 5 of the Statute[2] or one of the acts constituting a crime under other articles of the Statute.[3]

220.    However, a conviction can only be based on an offence that existed at the time the acts or omissions with which the accused is charged were committed and which was sufficiently foreseeable and accessible.[4] It is therefore necessary to investigate which acts of displacement are considered crimes under customary international law. The Geneva Conventions are considered to be the expression of customary international law.[5] Article 49 of the Fourth Geneva Convention prohibits displacement to another state, within or from occupied territory. It provides that: “[i]ndividual 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.”[6] Moreover, Article 85 of Additional Protocol I prohibits “the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or part of the population of the occupied territory within or outside this territory in violation of Article 49 of the Fourth Convention.”[7] Furthermore, Article 17 of Additional Protocol II to the Geneva Conventions explicitly prohibits the forced displacement of the population within or outside a country in which an internal armed conflict has broken out. It reads as follows:

Article 17 - Prohibition of forced movement of civilians - 1. The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand. Should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition. 2. Civilians shall not be compelled to leave their own territory for reasons connected with the conflict.

Article 17 of Additional Protocol II uses the term “forced movement” to describe displacements within and across borders during an internal armed conflict. However, the Commentary to this Protocol states that the term “forced movement” also covers “deportation measures obliging an individual to leave his country”.[9] The Geneva Conventions and their Additional Protocols prohibit forced movement within the context of both internal and international armed conflicts. This is relevant when determining the gravity of the acts in question, which is what the Appeals Chamber will now consider.

221.    For these acts to be considered acts constituting the crime of persecution, they must have been committed, separately or cumulatively, with discriminatory intent and must constitute a crime of persecution the gravity of which is equal to the other crimes listed in Article 5 of the Statute. On several occasions, the Tribunal’s Trial Chambers have found that the forced displacement of the population within a state or across its borders constituted persecution.[10] The Secretary-General’s report, which was approved by the Security Council,[11] states that “[c]rimes against humanity are aimed at any civilian population and are prohibited regardless of whether they are committed in an armed conflict, international or internal in character.”[12] It further states that “[c]rimes against humanity refer to inhumane acts of a very serious nature, such as wilful killing, torture or rape” and that “[i]n the conflict in the territory of the former Yugoslavia, such inhumane acts have taken the form of so-called ‘ethnic cleansing’ and widespread and systematic rape.”[13] The Security Council was therefore particularly concerned about acts of ethnic cleansing and wished to confer jurisdiction on the Tribunal to judge such crimes, regardless of whether they had been committed in an internal or an international armed conflict. Forcible displacements, taken separately or cumulatively, can constitute a crime of persecution of equal gravity to other crimes listed in Article 5 of the Statute. This analysis is also supported by recent state practice, as reflected in the Rome Statute, which provides that displacements both within a state and across national borders can constitute a crime against humanity and a war crime.[14]

222.    The Appeals Chamber concludes that displacements within a state or across a national border, for reasons not permitted under international law, are crimes punishable under customary international law, and these acts, if committed with the requisite discriminatory intent, constitute the crime of persecution under Article 5(h) of the Statute. The Appeals Chamber finds that the facts accepted by the Trial Chamber fall within the category of displacements which can constitute persecution.

223.    For the reasons set out above, the Appeals Chamber holds that at the time of the conflict in the former Yugoslavia, displacements both within a state and across a national border were crimes under customary international law. Consequently, the principle nullum crimen sine lege has been respected.[15]

918. In addition, Župljanin’s argument that the Trial Chamber was required to find that he intended coercive acts under the first category of joint criminal enterprise because the actus reus of the JCE I Crimes requires that the act inducing the departure be criminal, finds no support in the jurisprudence of the Tribunal. […] Contrary to Župljanin’s unreferenced assertion, the jurisprudence of the Tribunal does not require that persons be displaced as a result of criminal acts.[1]

56. The Appeals Chamber finds no error in the Trial Chamber’s determination that the Indictment sufficiently pleaded the crime of deportation and recalls that, in relation to the alleged forcible displacements of Bosnian Muslims and Bosnian Croats […] the Indictment stated that such displacements occurred “either across a de facto or de jure border or internally without the crossing of a de facto or de jure border”.[1] The Appeals Chamber further considers that the allegations were pleaded with sufficient specificity, particularly considering that the expulsions resulted from a number of attacks over a prolonged period of time and that Karadžić was not alleged to have directly participated in such expulsions.[2] The Appeals Chamber likewise considers, in view of the established practice allowing cumulative charging, that the Prosecution was not required to distinguish in the Indictment which events resulted in deportation as opposed to inhumane acts (forcible transfer).[3]