Vanquishing the oppressive Neo-Assyrian regime in 546 B.C., Persian Emperor Cyrus the Great reversed the practice and left us the first human rights charter, the Cyrus Cylinder (539 B.C.), which articulated in law the unacceptability of the acquisition of territory by force and the often concomitant practice of population transfer. The Cylinder also codified the right of return.
The English Crown eventually perfected population transfer in both ideology and practice, with legal and religious rationale devised to dispossess the Irish people of their lands a century before the British colonization of North America.1 There, population transfer rose to the level of sacrament with the colonial-minded Protestants and fundamentalists clearing the American Colonies of its natural habitat and its populations in a pious re-enactment of scripture.2 In parallel, and in latter-day contradiction, the United States has contributed greatly to the norms that have criminalized the practice of population transfer.
Pressed to specify the meaning and parameters of Martial Law, U.S. President Abraham Lincoln issued General Order No. 100 (Lieber Code),3 which specifically recognized population transfer as unconscionable. It asserted that “Private citizens are no longer murdered, enslaved, or carried off to distant parts...”4
Thereafter, the First International Conference of American States (1890) rejected population transfer as a function of illicit territorial gain and established the international diplomatic and legal tradition of non-recognition of territorial acquisition by force.5 The Hague Regulations (1907) later concurred, but remained silent on the presumably unthinkable practice of population transfer. The resurgent practice of population transfer later required the prohibition of such specific practices in the legal developments that were to follow.
Fifteen years after The Hague Regulations, Winston Churchill’s White Paper on the influx of foreign population in Palestine (1922) observed that:
It is essential to ensure that the immigrants should not be a burden upon the people of Palestine as a whole, and that they should not deprive any section of the present population of their employment.6
That principle preceded recognition of a people’s rights to subsistence and livelihood, both individually as well as a component of collective self-determination.7 However, the post-WWI “Transfer Agreements” between successor States created a retrogressive precedent. Despite the horrendous human and economic losses arising from the post-WW I Agreements,8 they only emboldened other intentional perpetrators.
The precarious interwar years compelled French foreign minister Aristide Briand to propose a bilateral treaty 85 years ago, renouncing war as a means for settling disputes between France and the United States. In the rosy afterglow of Charles Lindbergh’s solo flight to Paris the month before, U.S. political support for the pact was bipartisan.9 However, on implementation, the Kellogg–Briand Pact (Pact of Paris) did not live up to its aim. It remained static even after its entry into force in 1929, as the U.S. conducted its Banana Wars in Central America, Japan invaded Manchuria, Italy invaded and annexed Abbysinia/Ethiopia, and Germany and the Soviet Union invaded Poland.
Nonetheless, the pact is an important multilateral treaty binding the nations that signed it, and a legal basis for criminalizing territorial acquisitions by force and/or population transfer.10 Despite other State behavior at the time, international lawyers refer to 1932 as the date population transfers became legally prohibited.11 U.S. Secretary of State Henry L. Stimson’s statement of January 7, 1932 against the Japanese occupation of Manchuria was pivotal. Echoing the long-standing position of the other American States, the U.S. “did not intend to recognize any situation, treaty or agreement [that] may be brought about by means contrary to the covenants and obligations of the Pact of Paris...”12 The League of Nations Assembly affirmed this principle in a resolution passed on March 11, 1932, unanimously adopting this 42-year-old inter-American policy (with China and Japan abstaining).13 Other pacts in the same period enshrine principles logically consistent with the “established” prohibition against acquisition of territory by force, which typically involves the push and pull factors of population transfer.14
Under its League of Nations Mandate, however, the British government’s Peel Commission (1936–37) recommended partition of Palestine between Zionist settlers and indigenous Palestinians with a corresponding "compulsory population exchange." Shortly thereafter, the Woodhead Commission (1938) and the McDonald White Paper (1939) contradicted that position,15 to the Zionist strategists’ disappointment.
Some Zionist ideologues cited the post-WWI population-exchange agreement between Greece and Turkey, as they perceived it as a legalizing precedent for their own transfer scheme.16 Envoy Malcomb McDonald upheld the Churchill recommendation,17 advising against unlimited immigration, the indispensable pull factor of the Zionist population transfer project. He presciently warned that permitting the current trend would spell interminable conflict.18 House of Commons MP Reverend Dr. James Little ominously observed that “the House is being asked to set up a witches' cauldron in Palestine, something similar to that which a former Government set up in Ireland.”19
By the end of the 1930s, a moral, legal and international relations line had been drawn, establishing the unacceptability of the acquisition of territory by force and its concomitant practice of population transfer. However, the colonizers continued to resent and defy the norms.20
Resurgence and Criminalization
All of the jus cogens legal development did not deter the crime from being repeated. Population transfers continued defiantly through the subsequent decade in such diverse cases as the “option clauses” and “Transfer Agreements” concluded with the Third Reich,21 the partition of India, the Allies’ forced transfer of Germans after WW II22 and, of course, the Nakba of Palestine and the nearly simultaneous Chinese annexation of Tibet.
In light of these developments, the law prohibiting population transfer became more explicit during and after WWII. The earliest explicit mention of population transfer in an international legal document was the recognition of "forced resettlements" as a war crime in the Allied Declaration on German War Crimes that was adopted by representatives of the nine occupied countries, exiled in London, in 1942.23 The Polish Cabinet in Exile issued a decree on the punishment of German war crimes committed in Poland, which provided that life imprisonment or the death penalty would be imposed "if such actions caused death, special suffering, deportation or transfer of population."24
With the International Military Tribunal (IMT) the Allies tried the principle war criminals. The IMT Charter introduced into international law the notions of crimes against the peace, war crimes and crimes against humanity. It defined "war crimes" to include deportation of civilian population of or in occupied territory for any purpose.25 Article 6(c) of the Charter defined "crimes against humanity" to include:
…deportation and other inhumane acts committed against any civilian population before or during the war...in execution of, or in connection with any crime within the jurisdiction of the Tribunal...26
In addition to the four Powers that approved the IMT Charter, 19 other States acceded to it as well. The United Nations General Assembly also affirmed the principles of international law recognized by the IMT Charter and reflected by the judgment of the Tribunal.27
The IMT judgments at Nuremberg variously dealt with displacement of civilians from the occupied territories and their replacement by German settler-colonists. In the Nuremberg Trials, critical violations of economic/social/cultural rights (ESCR) were adjudicated under the auspices of two central themes; Germanization and spoliation. Germanization had as its goal the assimilation of conquered territories politically, culturally, socially, and economically into the German Reich. In order to achieve Germanization, the Nazis sought obliteration of the former national character of the conquered territories and the extermination of all elements that could not be reconciled with the Nazi ideology. The conduct associated with Germanization included forced displacement, deportation and/or population transfer of the inhabitants of occupied territories, as well as the transfer and settlement of German nationals into occupied territories or settlements encircling occupied territories.28 Spoliation referred to the plunder, pillaging and destruction of public or private property and the exploitation of the natural resources and the people of the occupied territory.
The cases of Alfred Jodl and Alfred Rosenberg are exemplary of the prosecution of violations as crimes against humanity and war crimes, namely, destruction of property, plunder of private and public property, and deportation. The Nuremberg Trial prosecutors and judges repeatedly condemned the practice of "Germanizing" or "Nazifying" occupied or "annexed" territories by deporting or expelling the original population and moving in German settlers. In this respect, the Nuremberg Trial set the precedent for what would later be codified in Article 49 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949: that population transfers and colonization in occupied territory constitute both a war crime and a crime against humanity, and that deportation of persons is illegal.
In the years that followed WWII, multilateral institutions and experts sought to clarify the legal prohibition of population transfers as especially problematic for international relations, the pursuit of the peace and the forward development enshrined in the UN Charter. In light of the scourges of the war, the States gathered in 1949 to adopt the Fourth Geneva Convention and revived the issue from the silence of its predecessor, the 1907 Hague Regulations. In addition to States, legal experts remained seized with the codification and specification of law prohibiting the crime of population transfer.29 Legal developments in the next decade added further clarity to the prospects of prosecution. An ECOSOC resolution30 led to a 1967 debate in the United Nations that resulted in an instrument affirming the non-application of a statute of limitations on war crimes and crimes against humanity.31 Ten years later, the Additional Protocol I to the Geneva Conventions reaffirmed population transfer as a grave breach.32
Twenty years ago, the UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities conducted its analytical mandate through a comparative lens. Its 1992 resolution on “the human rights dimensions of population transfer, including the implantation of settlers and settlements,”33 mandated a study that focused on incremental and en masse forced eviction, on the one hand, and colonization—in cross-border operations—and under a State’s domestic demographic manipulation practices. The study34 found that the “pull” factor (implantation of settlers and settlements) likely would constitute a breach of international law, whether carried out within or across state borders, violating a "bundle of rights."35 In its discussion of “population transfer” as a legal term, the Sub-Commission stated that the term:
…implies purpose in the act of moving a population; however, it is not necessary that a destination be predefined. The State’s role in population transfer may be active or passive, but nonetheless contributes to the systematic, coercive and deliberate nature of the movement of population into or out of an area. Thus, an element of official force, coercion or malign neglect is present in the State practice or policy. The State’s role may involve financial subsidies, planning, public information, military action, recruitment of settlers, legislation or other judicial action, and even the administration of justice….36 Transfer can be carried out en masse, or as "low-intensity transfers" affecting a population gradually or incrementally.37
While the Sub-Commission’s population transfer rapporteur mechanism culminated in a model “Draft Declaration on Population Transfer and the Implantation of Settlers” in 1997,38 that exercise preceded by one year the explicit prohibition and enforcement in a binding international treaty. The Rome Statute of the International Criminal Court (ICC) defines "Deportation or forcible transfer of population" as a crime against humanity (Article 7) and “Unlawful deportation or transfer” as a war crime (Article 8).The International Criminal Tribunal for the Former Yugoslavia has used such prohibition on population transfer to convict at least 15 politicians and military commanders charged with forced deportations.39 Other accused perpetrators are under indictment for population transfer crimes and face trial before the ICC, pending their apprehension.40
While such trials are essential to the transitional justice processes in those affected countries, the prosecution of war crimes and crimes against humanity has remained selective. The question persists as to whether international criminal justice can achieve the intended deterrence of crimes such as population transfer. In the cases of population transfers in Cyprus,41 East Timor and Western Sahara throughout and since the 1970s, many States did not uphold even the erga omnes non-recognition doctrine.42 The case of forced displacements and related crimes in Sri Lanka, Israel’s military ally,43 remains unaddressed and likely to spawn future upheavals.44 Meanwhile, no State party, High Contracting Party to the Geneva Conventions, or depositary government has fulfilled its obligation to “ensure respect” for the Fourth Geneva Convention, including its quintessential Article 49.45
With the long-confirmed demise of any putative “peace process,” events have led authoritative experts to call upon the UN to withdraw from the Middle East Quartet’s lawless approach.46 Indeed, the push and pull of population transfer continues at the level of punishable crime. However, the current political process actually impedes enforcement, with no small credit to the compliant selectivity of the current ICC Prosecutor.
Meanwhile, Israeli political leaders boldly persist in calling for more population transfer.47 As contradictory politics continue to undermine the force and meaning of international criminal law on population transfer, the politicians may doom humanity to repeat its unspeakable practice.
1. Nicholas P. Canny, "The ideology of English colonization: From Ireland to America," William and Mary Qtrly., 3d Ser., XXX (1973), 575–98; also Francis Jennings, The Invasion of America: Indians, Colonialism and the Cant of Conquest (New York and London, W.W. Norton, 1976).
2. Joseph Schechla, “A Covenant of Dispossession and Genocide,” in Barry Tharaud and Elizabeth Pallito, eds., The Endangered Planet in Literature Selected Proceedings, 16–18 November 2005 (Istanbul: Doğuş University, 2005),328–46.
3. Francis Lieber, LL.D., “Instructions for the Government of Armies of the United States in the Field,” General Orders No. 100, Adjutant General's Office, 1863, (Washington: Government Printing Office, 1898)..
4. Article 23.
5. First International Conference of American States, held in Washington, D.C., from October 1889 to April 1890. Reaffirmed in Inter-American Reciprocal Assistance and Solidarity (Act of Chapultepec), resolution approved by the Inter-American Conference on Problems of War and Peace, Mexico City, 6 March 1945; entered into force 8 March 1945, 60 Stat. 1831; Treaties and Other International Acts Series 1543.
6. McDonald, para. 12.
7. The International Covenant on Economic, Social and Cultural Rights (1966), in its Article 1 on self-determination, provides that “In no case may a people be deprived of its own means of subsistence.” Article 11 recognize “the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.”
8. About 1.5 million Greeks (Christians) and half a million Muslims were moved from one side of the international border to the other, following creed-based criteria.
9. In June 1927, interventionists thought it would lead to U.S. acceptance of the League of Nations; isolationists and peace groups hoped it would end war. Read more at: http://www.answers.com/topic/kellogg-briand-pact#ixzz1rZrRrrD0.
10. “Signatories and adherents,” at: http://en.wikipedia.org/wiki/Kellogg%E2%80%93Briand_Pact#cite_note-7
11. Claire Palley, “Population Transfer,” in Donna Gomein, ed., Broadening the Frontiers of Human Rights: Essays in Honour of Asbjørn Eide (Oslo: Scandinavian University Press, 1993), 229; and Claire Palley, “Population Transfer and International Law” (paper delivered at “UNPO Conference Population Transfer” conference, Tallinn, Estonia, 11–13 January 1992). See also “UNPO Conference Population Transfer” (conference report), at: http://unpo.org/downloads/Population-Transfer-1992.pdf and Ian Brownlie, International Law and the Use of Force by States (London: Clarendon Press, 1963), p. 410.
12. American Journal of International Law I, 1 (1932), 342.
13. U.S., Department of State, Publication 1983, Peace and War: United States Foreign Policy, 1931–1941 (Washington: U.S. Government Printing Office, 1943), pp.3–8.
14. In addition to the First International Conference of American States in 1890, the United States Stimson Doctrine of 1932 and the 1932 League of Nations resolution on Japanese aggression in China is the Buenos Aires Declaration of 1936 and the Atlantic Charter of 1941. See Lynk, S. Michael, “Conceived in Law: The Legal Foundations of Resolution 242,” 2 July 2007, at: http://ssrn.com/abstract=1411698.
15. One year after the Peel Commission, the Woodhead Commission pointed many practical difficulties of the partition and transfer schemes, and the MacDonald White Paper (1939) announced that Britain would no longer support partition and would limit land transfers and immigration. See Report of the Partition Commission (Woodhead Commission), Cmd. 5854 (1938) and Great Britain, Palestine, Statement of Policy (The MacDonald White Paper), Cmd. 6019 (1939).
16. These spokespersons included Israel Zangwill,Baron Edmond de Rothschild, Arthur Ruppin, Nachman Syrkin, Max Nordau, Leo Matzkin, Chaim Weizmann and, most notably, David Ben Gurion, Israel's first prime minister. See Shabtai Teveth, “The evolution of ‘transfer’ in Zionist thinking,” (Tel Aviv: Moshe Dayan Center for Middle East and African Studies, Shiloah Institute, Tel Aviv University, 1989); also Nur Massalha, Expulsion of the Palestinians: The Concept of “Transfer” in Zionist Political Thought, 1882–1948 (Washington: Institute for Palestine Studies, 1992).
17. Ibid, para. 12.
18. McDonald reported: “If immigration has an adverse effect on the economic position in the country, it should clearly be restricted; and equally, if it has a seriously damaging effect on the political position in the country, that is a factor that should not be ignored. Although it is not difficult to contend that the large number of Jewish immigrants who have been admitted so far have been absorbed economically, the fear of the Arabs that this influx will continue indefinitely—until the Jewish population is in a position to dominate them—has produced consequences [that] are extremely grave for Jews and Arabs alike, and for the peace and prosperity of Palestine.……it cannot be denied that fear of indefinite Jewish immigration is widespread [among] the Arab population and that this fear has made possible disturbances [that] have given a serious setback to economic progress, depleted the Palestine exchequer, rendered life and property insecure, and produced a bitterness between the Arab and Jewish populations [that] is deplorable between citizens of the same country. If, in these circumstances, immigration is continued up to the economic absorptive capacity of the country, regardless of all other considerations, a fatal enmity between the two peoples will be perpetuated, and the situation in Palestine may become a permanent source of friction [among] all peoples in the Near and Middle East.”Malcomb McDonald, “PALESTINE: Statement of Policy,” [Command Paper No. 6019], May 1939, para. 13, at:
19. House of Commons Debates (over Command Paper No. 6019), Vol. 347, cc 2129–97, 23 May 1939, at:
20. Ben Gurion later testified that: “the prohibition of Jewish settlement on land and the arbitrary limitation of immigration, have been bitterly resented by the Jews who have represented that they are contrary to His Majesty's Government's obligations under the Mandate.” Oral Evidence Presented at Public Meeting, Lake Success, New York” (transcript), United Nations Special Committee on Palestine, Report of the General Assembly, Vol. III, Annex A, A-364-Add.2 PV16, 4 July 1947, at:
21. See Joseph B. Schechtmann, "The option clause in the Reich's treaties on the transfer of population," American Journal of International Law, Vol. 38, No. 3 (July 1944), pp. 356–74.
22. Alfred-Maurice de Zayas, Die Nemesis von Potsdam (Munich: Herbig Verlag, 2005).
23. British and Foreign State Papers, Vol. 144, p. 1072.
24. On 17 October 1942. See Louise W. Holborn, ed., War and Peace Aims of the United Nations: 1 September 1939–31 December 1942 (Boston: World Peace Foundation, 1943), p. 462.
25. Article 6 (b) of the Charter of the International Military Tribunal; International Military Tribunal, Trial of the Major War Criminals before the International Military Tribunal (IMT), Nuremberg, 1945–1946, 42 vols. (London, H.M. Stationery Office, 1947–1949) vol. I, p. 11.
27. See General Assembly resolution 95 (1), adopted on 11 December 1946.
28. The earliest explicit mention of population transfer in an international legal document was the recognition of "forced resettlements" as a war crime in the Allied Declaration on German War Crimes, adopted by representatives of the nine occupied countries, exiled in London, in 1942. It stated, inter alia: “With respect to the fact that Germany, from the beginning of the present conflict, has erected regimes of terror in the occupied territories...characterized in particular by...mass expulsions…229 On 17 October 1942, the Polish Cabinet in Exile issued a decree on the punishment of German war crimes committed in Poland, which provided that life imprisonment or the death penalty would be imposed "if such actions caused death, special suffering, deportation or transfer of population."
29. "Les transferts internationaux de populations" (quatrième commission), report and questionnaire by Giorgio Balladore Pallieri, responses by Baron F.M. van Asbeck, Max Huber, Herbert Kraus, Henri Rolin, Georges Scelle, Walter Schätzel, J. Spiropoulous, Alfred Verdross, Fernand De Visscher and Bohdan Winiarski, Annuaire, vol. 44, No. 2 (1952), pp. 138–199.
30. The Economic and Social Council urged States “to take any measures necessary to prevent the application of statutory limitations to war crimes and crimes against humanity”. ECOSOC resolution 1158 (XLI), 5 August 1966, adopted with 22 votes in favor, none against and 2 abstentions.
31. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, 26 November 1968.
32. Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, Art 85.4(a).
33. At its forty-fourth session, in resolution 1992/28 of 27 August 1992, adopted without a vote, the Sub-Commission entrusted Mr. Awn Shawkat Al-Khasawneh and Mr. Ribot Hatano as Special Rapporteurs with preparing a preliminary study on “the human rights dimensions of population transfer, including the implantation of settlers and settlements.”
34. “The human rights dimensions of population transfer, including the implantation of settlers” (preliminary report presented by Mr. A.S. al-Khasawneh and Mr. R. Hatano), E/CN.4/Sub.2/1993/17, 6 July 1993, at:
35. Ibid., p. 44.
36. Ibid, paras. 14–15.
37. Ibid., para. 31.
38. to apply in all situations and to all persons, groups and authorities (Arts 1 and 2 Draft Declaration on Population Transfer and the Implantation of Settlers.
39. For instance, Momčilo Krajišnik is the highest ranking Serbian politician to be tried for crimes in former Yugoslavia. On 27 September 2006, Krajišnik was convicted of crimes against humanity, including persecution, deportation and forced transfer. For those crimes he was sentenced to 27 (reduced to 20) years imprisonment. View the sentencing at: http://www.youtube.com/watch?v=ezVyxjpyZow. Serving his sentence in Belmarsh, England, he is currently appealing for early release.
40. At least one ICC defendant from the Lord’s Resistance Army, Okot Odhiambo (Uganda), has been indicted for attacking displaced persons. All six ICC indictments for crimes in the post-election violence in Kenya include deportation or forcible transfer of a population. For the crimes committed in Darfur, four Sudanese are under arrest warrant for offenses including deportation or forcible transfer of population: Ahmad Muhammad Harūn ("Ahmad Harūn"), the former Minister of State for the Interior of the Government of Sudan and Minister of State for Humanitarian Affairs of Sudan is allegedly criminally responsible for 42 counts on the basis of his individual criminal responsibility under articles 25(3)(b) and 25(3)(d) of the Rome Statute, including forcible transfer of population (article 7(1)(d)), and 22 counts of war crimes.
Ali Muhammad `Ali `Abd al-Rahmān ("`Ali Kushayb"), alleged leader of the Militia/Janjaweed, faces prosecution and an arrest warrant for 50 counts of individual criminal responsibility, of which 22 are for crimes against humanity, including deportation or forcible transfer of population.
`Umar Hasan Ahmad al-Bashīr, president of the Republic of Sudan since 16 October 1993, faces individual criminal responsibility for ten counts of crimes against humanity, including forcible transfer and genocide.
`Abd al-Rahīm Muhammad Husain, current Minister of National Defense and former Minister of the Interior and the Sudanese President’s Special Representative in Darfur now faces 13 counts of his individual criminal responsibility for seven counts of crimes against humanity, forcible transfer (article 7(1)(d)); and six counts of war crimes that include attacks against a civilian population (article 8(2)(e)(i)) and destruction of property (article 8(2)(e)(xii)). International Criminal Court, at:
41. Cyprus v Turkey European Court of Human Rights [ECtHR] 10 May 2001; Cyprus v Turkey [European Commission of Human Rights] 4 October 1992).
42. S/RES/384 (1975), adopted by the Security Council at its 1869th meeting on 22 December 1975, at:
43. Wayne Madsen, “Sri Lanka: Israel’s dirty secrets,” Online Journal (8 May 2009), at:
44. The Sri Lankan military’s control over the political and economic life of the Northern Province is deepening the alienation and anger of northern Tamils and threatening sustainable peace. Sri Lanka’s North I: The Denial of Minority Rights and Sri Lanka’s North II: Rebuilding under the Military, two reports from the International Crisis Group, examine how de facto military rule and various forms of government-sponsored “Sinhalisation” of the Tamil-majority region are impeding international humanitarian efforts after the forced transfers under the government’s counterinsurgency policies throughout 2009.
45. For a set of options for implementing corresponding State obligations under the Fourth Geneva Convention, see “Human Rights Groups Urge Meaningful Geneva 4 Conference,” at: http://www.hic-mena.org/documents/HCP%20conference%20concept%20final.pdf; and annex: “Toward the Conference of High Contracting Parties of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949) on measures to enforce the Convention in the occupied Palestinian territory,” at: http://www.hic-mena.org/documents/HCP%20conference%20concept%20final.pdf.
46. “Quartet Has Paid Little Attention to Human Rights of Palestinians,” GA/SHC/3893, at:
47. Barak Ravid, “Lieberman presents plans for population exchange at UN,” Haaretz (28 September 2010), at: http://www.hlrn.org/news.php?id=pG1nag==