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Making Arbitrary Displacement a Crime: Law and Practice

2022-03-23
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This research aims to contribute to the effective prosecution of, and punishment for, arbitrary displacement. While arbitrary displacement is still often considered a less serious crime or a consequence of other crimes rather than a crime in itself, it is often used as a strategy to take control of a territory and remove populations from it for different purposes. As a result, it is particularly important to support efforts to end impunity for it and to hold those responsible accountable.

Developed for the United Nations High Commissioner for Refugees (UNHCR) and the Task Team on Law and Policy of the Global Protection Cluster (GPC), this paper provides guidance and concrete recommendations for States as well as for practitioners supporting States in discharging their responsibilities in this particular area.

More specifically, States need to criminalize arbitrary displacement in order to:

(i) clearly reject it as illegal conduct, in line with international and regional obligations and standards;

(ii) contribute to the prevention of arbitrary displacement; and (iii) support the achievement of durable solutions for internally displaced persons (IDPs).

Under international law, States have an obligation to prevent and prohibit arbitrary displacement. This obligation entails, among other things, the criminalization of some acts of arbitrary displacement that amount to international crimes. In line with their obligations under international treaties and standards (including the Geneva Conventions and their Additional Protocols, the Rome Statute of the International Criminal Court and customary international law), States have an obligation to define international crimes as criminal acts in domestic legislation. In addition, States can further fulfil their international obligations to prevent arbitrary displacement by establishing criminal offences for instances of arbitrary displacement that do not amount to international crimes, yet are prohibited under international law. In so doing, criminal law provisions may address a broader scope of behaviours, include parameters that are easier to satisfy than international crimes, and be tailored to the domestic displacement and legal contexts.

States can criminalize arbitrary displacement by inserting specific criminal offences into existing legislation or by developing stand-alone legislation, according to their national context and legal system. Once the legislation is adopted, it is important to support its dissemination and build the capacity of relevant actors to encourage the prosecution of acts of arbitrary displacement and ultimately, to foster the achievement of durable solutions for IDPs and the prevention of new arbitrary displacements. Indeed, the purpose of a judicial process in the context of arbitrary displacement is to ensure justice, repair damages, generate and promote social sanction for acts of arbitrary displacement, contribute to alleviating the suffering and eliminating the stigmatization that victims often endure, and last but not least, restore their dignity. The criminal process is not an end in itself, but it is essential for achieving these goals.

The paper concludes by presenting other mechanisms that exist at the international, regional and national level and contribute to hold perpetrators of arbitrary displacement accountable when the criminalization of arbitrary displacement itself is not sufficient.