The Prohibition of Deportation and Forcible Transfer of Civilian Populations in the Fourth Geneva Convention and Beyond

The present chapter analyses the prohibition of deportation and forcible transfer of civilian population set forth in Article 49(1) of the Geneva Convention relative to the protection of civilian persons in time of war of 12 August 1949 in the light of the travaux préparatoires and subsequent practice—including Article 17(1) of Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977. After a brief survey of historic precedents supporting the customary nature of the prohibition at the time of the adoption of the Convention, the attention is then concentrated on Article 49 GC IV. The peculiar legal nature of the provision is analysed both as a peremptory norm of international law (jus cogens) and as a rule the violation of which entails individual criminal responsibility. The scope of application of the prohibition is then carefully examined in its temporal, personal, geographical and material dimensions, with special attention to the case law of international criminal tribunals. In a third section, the limits of the prohibition are explored, starting with the cases of displacement that fall outside the scope of the prohibition—because they result from a genuine choice of the concerned civilian persons. The notion of temporary evacuation on the grounds of the security of the population or imperative military grounds is then explored.