The expulsions of ethnic Kurds, Turkmen, and Assyrians from the Kirkuk region amount to an Iraqi government policy of forced transfer of populations, pursued to change the demographic nature of the Kirkuk region-a policy commonly referred to as the "Arabization" of the Kirkuk region. Underlying this demographic change is the government's desire to reduce the political power and presence of ethnic minorities in order to retain or increase government control over this oil-rich region. The forced and arbitrary transfer of populations, that is, without any grounds permissible under international law, is a crime against humanity.
Prior to the coming into force of the International Criminal Court (ICC) treaty, international criminal law sometimes did not distinguish between the crime of deportation, defined as "the forced removal of people from one country to another," and the crime of forced population transfer, defined as the "compulsory movement of people from one area to another within the same State."93 Deportation has been recognized as a crime against humanity in each of the major international criminal instruments prior to the ICC, including the Nuremberg Charter, the Tokyo Charter, the Allied Control Council Law No. 10, and the statutes of the international criminal tribunals for the former Yugoslavia and Rwanda.94 The long-standing definition of "deportation" as a crime against humanity included the crime of forced population transfer within a state's borders.95
The Statute of the ICC, which came into force on July 1, 2002,96 includes among its definition of crimes against humanity "deportation or forcible transfer of population." According to one commentator, forcible transfer of population was specifically included "to make it expressly clear that transfers of populations within a State's borders were also covered."97 The crime of forcible transfer of population includes "the full range of coercive pressures on people to flee their homes, including death threats, destruction of their homes, and other acts of persecution, such as depriving members of a group of employment, denying them access to schools, and forcing them to wear a symbol of their religious identity."98
In order to be recognized as a crime against humanity under the requirements put forth by the ICC, the forced transfer of population also must be committed as "part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack."99 The "attack" does not necessarily need to be a military attack as defined under international humanitarian law, and "need not even involve military forces or armed hostilities, or any violent force at all."100 In the landmark Akayesu judgment, the International Criminal Tribunal for Rwanda defined "attack" to encompass the forced transfer practices used by Iraq and described in this report, stating:
The expulsions of ethnic Kurds, Turkmen, and Assyrians from Kirkuk meet the other elements of the "part of a widespread or systematic attack directed against any civilian population" test. Almost all of the expelled persons are civilians. In order to be widespread, the attacks must include "massive, frequent, large scale action, carried out collectively with considerable seriousness," a requirement which is met by the tens of thousands of victims of the expulsion policies.102 The use of standardized expulsion procedures-such as expulsion orders, and specialized detention centers-as well as the clear involvement of Iraqi officials in all aspects of the expulsions including opposition to U.N. facilitated returns, also reflects the systematic character of these attacks, a requirement that is defined as requiring "a pattern or methodical plan" that is "thoroughly organized and following a regular pattern."103
The actions of the Iraqi government meet all the requisite elements of the crime against humanity of forced transfer of civilian populations. First, Iraq has "forcibly transferred, without ground permitted under international law," thousands of Kurds, Turkmen, and Assyrians "to another ...location, by expulsion or other coercive acts."104 Second, the persons expelled or forcibly transferred from the Kirkuk region "were lawfully present in the area from which they were deported or transferred."105 Third, the Iraqi government knew that the expelled persons were lawfully present in the Kirkuk region.106
The expulsions from Kirkuk are pursued as a matter of government policy, as indicated by the existence of standard documents such as the "expulsion orders," the existence of "deportation centers," the government opposition to U.N. facilitated returns, and the similarity of the experiences of the expelled persons.
Various U.N. bodies have further defined this right. In a 1997 resolution, the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the U.N. Commission on Human Rights affirmed "the right of persons to remain in their own homes, on their own lands, and in their own countries." It also urged governments and other actors to do everything possible "to cease at once all practices of forced displacement [and] population transfer ...in violation of international legal standards."109
While the Iraqi efforts to expel the ethnic Kurdish, Turkmen, and Assyrian populations from the Kirkuk region have not generally included the same level of terror-inspiring violence which characterized ethnic cleansing in the Balkans, the Iraqi policies do appear to share with the Balkan policies an aim to permanently alter the ethnic make-up of the Kirkuk region-hence the common characterization of the Iraqi government policy as "Arabization." Such attempts to alter permanently the ethnic make-up of a region have been characterized as contrary to international law by the U.N. Committee on the Elimination of Racial Discrimination, in a 1995 decision relating to Bosnia-Herzegovina:
[A]ny attempt to change or uphold a changed demographic composition of an area, against the will of the original inhabitants, by whichever means, is a violation of international law.114
The Right of Forcibly Displaced Persons to Return to their Homes
Most international human rights instruments recognize the right to return to one's country.116 There is no specific provision in international covenants affirming the right of internally displaced persons to return to their places of origin. However, this right, or at least the obligation of states not to impede the return of people to their places of origin, is implied. For example, article 12 of the ICCPR recognizes the right to enter one's own country.117 Article 12 also recognizes the right to choose freely one's own place of residence, which incorporates the right to return to one's home area. In some cases, the right to return to one's former place of residence is also supported by the right to family reunification and to protection for the family. Recognizing these various rights, the Sub-Commission on the Promotion and Protection of Human Rights has reaffirmed "the right of all refugees ...and internally displaced persons to return to their homes and places of habitual residence in their country and/or place of origin, should they so wish."118
Numerous resolutions of the U.N. General Assembly and of the Security Council as well as several international peace agreements also recognize the right to return to one's home and/or property.119 The right to an effective remedy, contained in ICCPR article 2(3), requires that Iraqis should be able, in principle, to repossess their homes after being deprived of them under the "Arabization" policy.
The Commission on Human Rights has often recognized the need for property restitution as an effective remedy for forced displacement.120 In 1996, the European Court of Human Rights recognized the right of a displaced Greek Cypriot to claim her property, despite the fact that she had not resided there for twenty-two years.121 Finally, the ICC Statute authorizes restitution as a remedy, stating that "[t]he Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation."122
When displaced persons are unable to return to their homes because their property has been destroyed or claims against a current occupant are unsuccessful, they are entitled to compensation. The right to an effective remedy, contained in ICCPR article 2(3), suggests that there should be a right to financial compensation when a displaced person cannot repossess her property. In the Cyprus case mentioned above, the European Court of Human Rights recognized the plaintiff's right to compensation for the years that she had been denied access to her property.123
While the ethnic Kurds, Turkmen, and Assyrians displaced by the "Arabization" policies have a right to return to their homes in the Kirkuk region and receive compensation for their losses, it is important that this right is implemented in a manner that does not cause additional human rights abuses. The Iraqi government has brought ethnic Arab populations-some also against their will, others with financial incentives-to Kirkuk to advance its "Arabization" drive, and many of those ethnic Arabs now live in the former homes of displaced persons. The right to repossess private property must be balanced against any rights these secondary occupiers may have in domestic or international law, using impartial and efficient procedural safeguards.124 In Bosnia, property claims administrators have attempted to resolve these disputes in a manner that respects the rights of the first possessor as well as the secondary occupier.125
In many conflicts, the collapse of an abusive administration is often followed by a security vacuum in which the former victims of abusive policies may wreak revenge on perceived government supporters.126 Programs aimed at returning displaced populations and re-creating multi-ethnic communities in the Balkans after years of forced displacement have faced severe obstacles, including continuing discrimination policies and violence between ethnic communities.127 In order to prevent communal violence and retaliation, any program to implement the right to return of the displaced communities must take place in a legal and security context that ensures the protection of the rights of all involved persons, including the displaced as well as the communities that have taken their place.
93 M. Cherif Bassiouni, Crimes Against Humanity in International Law (The Hague: Kluwer Law International, 1999), p. 312.
94 See Roy Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Ardsley, NY: Transnational Publishers, 2001), p. 86; M. Cherif Bassiouni and Peter Manikas, The Law of the International Criminal Tribunal for the Former Yugoslavia (New York: Transnational Publishers, 1996), p. 627-28 (arguing that the crime of "deportation" under the Nuremberg Charter included "all unjustified forceful transfers [including] internal displacement").
95 See, e.g. Draft Report of the International Law Commission on the Work of its 43rd Session, U.N. Doc. A/CN.4/L.464/Add.4/1991 at 31 (stating that the prohibition of deportation as a crime against humanity also applies internally); Prosecutor v. Radilslav Krstic (stating that "[d]eportation presumes transfer beyond State borders, whereas forcible transfer relates to displacements within a State. However, this distinction has no bearing on the condemnation of such practices in international humanitarian law"); Prosecutor v. Nikolic, ICTY Trial Chamber I, 1995 (finding that unlawful transfers of civilians within Bosnia "could be characterised as deportation and therefore crimes against humanity"); Crimes Against Humanity Charges, Serious Crimes Unit, February 25, 2003 (announcing the indictment, on February 24, 2003, by the Serious Crimes Unit of the U.N.M.S.E.T. (established by Security Council Resolution 1272, 1999), of eight Indonesian and East Timorese government and military officials for crimes against humanity for the "forcible transfer of civilians from districts across East Timor to West Timor").
96 In 1998, 120 countries voted in favor of the Statute of the ICC at the United Nations Diplomatic Conference of Plenipotentiaries in Rome, and the statute came into force on July 1, 2002 two months after the sixtieth state ratified the treaty.
97 R. Lee, The International Criminal Court, p. 86.
98 Christopher K. Hall in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (Baden-Baden: Nomos Verlagsgesellschaft, 1999), p. 162.
99 ICC Statute, art. 7(1).
100 Rodney Dixon in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (Baden-Baden: Nomos Verlagsgesellschaft, 1999), p. 124.
101 Prosecutor v. Akayesu, Judgment, Case No. ICTR-96-4-T, September 2, 1998, para. 581.
102 Rodney Dixon in O. Triffterer, Commentary on the Rome Statute of the International Criminal Court, p. 126.
104 R. Lee, The International Criminal Court, p. 86 (defining the relevant elements of the crime of deportation).
107 International Covenant on Civil and Political Rights, art. 12.
108 See, e.g., Patrick McFadden, "The Right to Stay," Vanderbilt Journal of Transnational Law, vol. 29, p. 36 (1966).
109 United Nations, Economic and Social Council, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, "Freedom of Movement and Population Transfer," E/CN.4/SUB.2/RES/1997/29. See also United Nations, Economic and Social Council, Commission on Human Rights, "Report of the Representative of the Secretary General, Dr. Francis Deng, Addendum, Compilation and Analysis of Legal Norms, Part II: Legal Aspects Relating to the Protection Against Arbitrary Displacement," E/CN.4/1998/53/Add.1, Section II, A, paragraph 4.
110 Bassiouni and Makinas, The Law of the International Criminal Tribunal, p. 608.
111 Ibid., pp. 608-609.
112 Ibid., p. 609.
113 See Security Council resolutions 771 (1992), 780 (1992), 808 (1993), 820 (1993), and 941 (1994), and U.N. General Assembly resolutions 46/242 and 47/80.
114 U.N. Committee on the Elimination of Racial Discrimination, Decision 2 (47) of August 17 1995, on the situation in Bosnia and Herzegovina, U.N. Doc. A/50/18/1995, para. 26.
115 The right to return has been recognized by some experts as a norm of customary international law. See "Current Trends in the Right to Leave and Return," U.N. Doc. E/CN.4/Sub.2/1985 (emphasizing that the right to return is part of the whole body of human rights, and stating that the "concordance of State practice and common opinion juris, [the right to return] created a legal obligation according to customary international law.")
116 The right to return to one's former place of residence is related to the right to return to one's home country. Article 13 (2) of the 1948 Universal Declaration of Human Rights (UDHR) states that "Everyone has the right to leave any country, including his own, and to return to his country." This language is reflected in Article 5 of the 1965 International Convention on the Elimination of all Forms of Racial Discrimination (CERD) which guarantees "the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: . . ." These include in Article 5 (d) (ii) "The right to leave any country, including one's own, and to return to one's country."
117 ICCPR, Art. 12.
118 See Sub-Commission on the Promotion and Protection of Human Rights, Housing and Property Restitution in the Context of the Return of Refugees and Internally Displaced Persons, Resolution 1998/26.
119 With regard to Bosnia, see U.N. Security Council resolutions 947 (1994) and 859 (1993). See also Report of the Committee on the Elimination of Racial Discrimination, U.N. Doc. A/50/18 (1995) (requiring that "persons be given opportunity to safely return to the places they inhabited before the beginning of the conflict."). With regard to Kosovo, see U.N. Security Council resolutions 1199 (1998), 1203 (1998), 1239 (1999), and 1244 (1999). With regard to Israel, see U.N. General Assembly resolutions 3236 (1974), 3089(D) (1974). With regard to Cyprus, see U.N. General Assembly resolutions 253 (1983), 30 (1979), 3212 (1974), and U.N. Security Council resolutions 774 (1992), 361 (1974). With regard to Cambodia, see Agreements on a Comprehensive Political Settlement of the Cambodia Conflict (1991). With regard to Guatemala, see Agreement on Identity and Rights of Indigenous Peoples (1995) and Agreement on Resettlement of the Population Groups Uprooted by the Armed Conflict (1994). With regard to Rwanda, see Arusha Peace Agreement (1993).
120 See, e.g. Commission on Human Rights Resolutions 2000/41 and 1999/33 (recognizing the "right to [property] restitution . . . for victims of grave violations of human rights."). In addition, the Dayton Accord, the peace agreement ending the 1991 war in the former Yugoslavia, recognizes the right of all displaced persons to return to their former homes in Annex Four. Since Annex Four is now the Bosnian Constitution, the right in this context is recognized in both international and domestic law.
121 See Loizidou v. Turkey, 28 Eur. Ct. H.R. 2216 (1996). This decision was based on article 1 of protocol 1 of the European Court of Human Rights (ECHR), which provides that "every natural or legal person is entitled to the peaceful enjoyment of his possessions."
122 See Rome Statute, art. 75, para. 1.
123 See Loizidou v. Turkey, 81 Eur. Ct. H.R. 1807, 1817 (1998).
124 For example, in 1998, the Sub-Commission on the Promotion and Protection of Human Rights urged "all States to ensure the free and fair exercise of the right to return to one's home and place of habitual residence by all refugees and internally displaced persons and to develop effective and expeditious legal, administrative and other procedures to ensure the free and fair exercise of this right, including fair and effective mechanisms designed to resolve outstanding housing and property problems." See Sub-Commission on the Promotion and Protection of Human Rights, Resolution 1998/26, August 26, 1998.
125 For example, the Dayton Agreement set up the Commission for Real Property Claims (CRPC) and the Office of the High Representative Ombudsperson to resolve property disputes. See Dayton Agreement, Annex 7 (1995).
126 See, for example, Human Rights Watch, "Abuses Against Serbs and Roma in the New Kosovo," A Human Rights Watch Report, vol. 11, no. 10(D), August 1999. Similar abuses were committed by Kurdish and Shi'a forces in Iraq during the brief uprisings against the Iraqi government in 1991. See Human Rights Watch, Endless Torment.
127 See, for example, Human Rights Watch, "Unfinished Business: Return of Displaced Persons and other Human Rights Issues in Bijeljina," A Human Rights Watch Report, vol. 12, no. 7(D), May 2000; Human Rights Watch, "Second Class Citizens: The Serbs of Croatia," A Human Rights Watch Report, vol. 11, no. 3(D), March 1999.