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IV. Legal Standards

Forced Population Transfers as a Crime Against Humanity

The expulsions of ethnic Kurds, Turkomans, and Assyrians from northern Iraq amount to an Iraqi government policy of forced transfer of populations, aimed at changing the demographic nature of northern Iraq—a policy commonly referred to as “Arabization.”  Underlying this demographic change was the Iraqi government’s desire to reduce the political power and presence of ethnic minorities in order to consolidate government control over this oil-rich region.  The forcible and arbitrary transfer of populations--that is, without any grounds permissible under international law—has been defined in the International Criminal Court statute as a crime against humanity.³⁰ Although the crimes described here occurred prior to the ICC statute’s coming into force, and Iraq in any case is not a party to the statute, the statute itself is considered to reflect customary international law.

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.”³¹ 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 (ICTY) and Rwanda (ICTR).³²  The long-standing definition of “deportation” as a crime against humanity included the crime of forced population transfer within a state’s borders.³³

The Statute of the ICC, which came into force on July 1, 2002,³⁴ includes among its definitions of crimes against humanity “deportation or forcible transfer of population.”  According to one commentator, forcible transfer was specifically included “to make it expressly clear that transfers of populations within a State’s borders were also covered.”³⁵  The crime of forcible transfer of populations 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.”³⁶

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.”³⁷  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.”³⁸  In the landmark Akayesu judgment, the International Criminal Tribunal for Rwanda defined attack in a way that encompasses the forced transfer practices used by Iraq and described in this report, stating:

An attack may also be nonviolent in nature, like imposing a system of apartheid, which is declared a crime against humanity [by the] Apartheid Convention of 1973, or exerting pressure on the population to act in a particular manner, may come under the purview of an attack, if orchestrated on a massive scale or in a systematic manner.³⁹

The expulsions of ethnic Kurds, Turkomans, and Assyrians from northern Iraq 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 were civilians.  In order to be widespread, the attacks must include “massive, frequent, large-scale action, carried out collectively with considerable seriousness,”⁴⁰ a requirement met by the hundreds of thousands of victims of the expulsion policies.  The use of standardized expulsion procedures—such as the expulsion orders and specialized detention facilities used in the 1990s in Kirkuk—as well as the clear involvement of Iraqi officials in all aspects of the expulsions including opposition to U.N.-facilitated returns,⁴¹ also reflect the systematic character of the attacks, a requirement that is defined as requiring “a pattern or methodical plan” that is “thoroughly organized and following a regular pattern.”⁴²

The actions of the former 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,” hundreds of thousands of Kurds, Turkomans, and Assyrians “to another …location, by expulsion or other coercive acts.”⁴³  Second, the persons expelled or forcibly transferred from northern Iraq “were lawfully present in the area from which they were deported or transferred.”⁴⁴  Third, the Iraqi government knew that the expelled persons were lawfully present in northern Iraq.⁴⁵  Finally, the expulsions from northern Iraq were pursued as a matter of government policy.

Human Rights Provisions Relevant to Forced Transfer

Article 12 of the International Covenant on Civil and Political Rights (ICCPR), to which Iraq became a party in 1971, establishes that everyone shall have “the right to liberty of movement and freedom to choose his residence.”⁴⁶  The freedom to choose one’s residence incorporates the right not to be forcibly moved.⁴⁷  Restrictions on movement and choice of residence are permitted only when provided by law and for reason of “national security, public order (ordre public), public health or morals, or the rights and freedoms of others,” and such restrictions must be consistent with other rights recognized in the ICCPR.

“Ethnic Cleansing”

Ethnic cleansing refers to the policy of “rendering an area ethnically homogeneous by using force or intimidation to remove targeted persons or a given group from the area.”⁴⁸  Ethnic cleansing is not defined in any international criminal convention or under customary international law, but it is a concept that is “culled from the Yugoslav conflict, where the term has been used by the Serb leadership in connection with their military campaigns to cleanse territories that are intended to be part of ‘Greater Serbia.’”⁴⁹  Ethnic cleansing is similar to forced population transfer, but involves an additional element of the use of “terror-inspiring violence.”⁵⁰  The United Nations has repeatedly characterized the practice of ethnic cleansing as a violation of international humanitarian law, and has demanded that perpetrators of ethnic cleansing be brought to justice.⁵¹

The 1988 Anfal campaign, which caused the deaths of some 100,000 Kurds and the displacement of hundreds of thousands of others and the destruction of their villages, included the use of terror-inspiring violence.  Iraqi policies shared with Balkan ethnic cleansing policies an intent to alter permanently the ethnic make-up of northern Iraq—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 opinion relating to Bosnia-Herzegovina: “any 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.”⁵²

The Right of Forcibly Displaced Persons to Return to their Home, or be Compensated for their Losses

International law not only specifies the forced and arbitrary transfer of populations as a crime against humanity, but also provides for a remedy for the persons victimized by these forced transfers.  Persons forcibly transferred from their homes in violation of international standards are entitled to return to their home areas and property, a right known as the “right to return.”⁵³

Most international human rights instruments recognize the right to return to one’s country.⁵⁴  Although there is no specific provision in international covenants affirming the right of internally displaced persons to return to their places of origin, 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.⁵⁵  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.  Moreover, as noted by the United Nations High Commissioner for Refugees, “the right to return to one’s own country is increasingly seen as linked with the right to adequate housing.”⁵⁶ 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.”⁵⁷

The U.N. Security Council and other U.N. bodies have also repeatedly asserted the right of internally displaced persons to return to their former homes.  The Security Council, in its resolution 820 (1993) dealing with Bosnia and Herzegovina, stated that “all displaced persons have the right to return in peace to their former homes and should be assisted to do so.”  Similar language by the Security Council affirming this right to return can be found in resolutions addressing the conflicts in Abkhazia and the Republic of Georgia, Azerbaijan, Bosnia and Herzegovina, Cambodia, Croatia, Cyprus, Kosovo, Kuwait, Namibia, and Tajikistan.⁵⁸  The U.N. Committee on the Elimination of Racial Discrimination (CERD), in its General Recommendation XXII on Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination has stated:

All … refugees and displaced persons have, after their return to their homes of origin, the right to have restored to them property of which they were deprived in the course of the conflict and to be compensated appropriately for any such property that cannot be restored to them.⁵⁹

Section V of the United Nations Guiding Principles on Internal Displacement (the Guiding Principles) contain the Principles Relating to Return, Resettlement and Reintegration of Internally Displaced Persons. Principle 28 provides that:

Competent authorities have the primary duty and responsibility to establish conditions, as well as provide the means, which allow internally displaced persons to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country. Such authorities shall endeavour to facilitate the reintegration of returned or resettled internally displaced persons.”⁶⁰

This principle further provides that special efforts should be made to ensure the full participation of all internally displaced persons in the planning and management of such processes. The participation of women, in particular, is essential.

The Commission on Human Rights has often recognized the need for property restitution as an effective remedy for forced displacement.⁶¹  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.⁶²  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.”⁶³

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.⁶⁴

Principle 29(2) of the Guiding Principles provides that:

competent authorities have the duty and responsibility to assist returned and/or resettled  internally displaced persons to recover, to the extent possible, their property and possessions which they left behind or were dispossessed of upon their displacement. When recovery of such property and possessions is not possible, competent authorities shall provide or assist these persons in obtaining appropriate compensation or another form of just reparation.

Compensation, when it is provided, must be given in a manner which is reasonable in relation to the damage suffered.⁶⁵ The European Court of Human Rights, in a ruling, clearly stated that compensation for deprivation of property “must be given in a prompt, appropriate and effective manner and in ‘an amount reasonably related to [the value of the property]”⁶⁶

The Need for Fair and Impartial Procedures and the Rights of Secondary Occupants           

While the ethnic Kurds, Turkomans, and Assyrians displaced by Iraq’s Arabization and other forced displacement policies have a right to return to their homes or 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 ethnic Arab populations brought in by the Iraqi government—some against their will, but most with financial or other incentives—also have accumulated rights that must be respected.  Many Arabs paid the government for the homes or land they occupied, or built their own homes on the land.  Because of the time that has elapsed since the original expropriations in some areas—nearly thirty years for the expropriations and expulsions of the mid-1970s—many properties have changed hands a number of times, and the current occupants are often far removed from the original beneficiary of the expropriation and Arabization policies. 

First and foremost, any attempt to redress past abuses and to repossess private property should be free of violence, intimidation, and threats.  In many prior 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 and beneficiaries.⁶⁷  Such revenge attacks constitute serious human rights abuses. Iraqi government forces, along with U.S.-led coalition forces have a duty to prevent such abuses, and the Iraqi government has the responsibility to bring the perpetrators to justice.

The right to repossess private property must be balanced against any rights these secondary occupiers may have under domestic or international law, using impartial and efficient procedural safeguards.  The U.N. 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 and administrative procedures to ensure the free and fair exercise of this right, including fair and effective mechanisms to resolve outstanding housing and property problems.”⁶⁸  In the former Yugoslavia, the Dayton Accords created a Commission for Real Property Claims (CRPC) and the Office of the High Representative Ombudsperson to resolve property disputes.⁶⁹  All parties to the property disputes in Iraq, including the victims as well as the beneficiaries of the Arabization policies, have a right to fair and unbiased procedures to determine their conflicting claims.

One particular difficulty faced by many programs aimed at returning displaced persons and re-creating multi-ethnic communities in the Balkans after years of forced displacement and severe human rights abuses is continuing discrimination policies and violence between ethnic communities, which make it nearly impossible for minorities to live peacefully among hostile majorities, even when their legal claims have been recognized.⁷⁰  In order to prevent communal violence and retaliation, any program to implement the right to return of the displaced communities must ensure that persons who have their claims legally recognized can actually return to their homes in safety.

Finally, it must be recognized that adjudication of individual property claims and the recognition of the right to return will not be a sufficient response to address the consequences of nearly three decades of Arabization in northern Iraq.  Programs will need to be developed to provide alternative housing, land, or compensation for the parties who will not have their rights to property recognized, in order to avoid making tens of thousands of families homeless and landless.

Moreover, care must be taken to ensure that even those who do not have lawful or other rights to dwell within housing or property registered to returnees do not become homeless or subject to other human rights violations. In this regard, account should be taken of the views of the U.N. Committee on Economic, Social and Cultural Rights. Paragraph 16 of the Committee’s General Comment 7 (1997) on Forced Evictions states

Evictions should not result in rendering individuals homeless or vulnerable to the violation of other human rights. Where those affected are unable to provide for themselves, the State party must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive lands, as the case may be, is available.⁷¹