Home, Community, Property: Crimes of Displacement and the Evolution in Focus from Sovereign Interests to Victim Rights-Holder
This article analyzes the evolution in the doctrine on international law’s crimes of displacement—deportation and forcible transfer—from a focus on sovereign interest to a grounding in the rights of the victim in home, community, and property. The article contrasts the predominant frame of argument and analysis in post-World War II prosecutions for deportation—centered on the interests and duties of authority-holders with present-day doctrine centrally grounding in the criminalization of coerced internal and external displacement in internal and international conflict in the rupture of victims’ rights in home, property, and community. This progressive doctrinal evolution improves the scope of vision in international law on forced displacement and has important implications for human rights law, which is wrestling with how to protect internally displaced people who have historically been harder to help because of traditional n9otions of state sovereignty. This article’s analysis proceeds in three parts. The first part provides background by tracing the crystallization of the criminalization of forcible displacement in international humanitarian law. The second part contrasts the predominant frame of argument and analysis in post-World War II prosecutions and adjudications of crimes of deportation—focused on sovereign interest and authority—with the recent jurisprudence of the international criminal tribunal for the former Yugoslavia (ICTY), explicitly and centrally grounding the criminalization of deportation and forcible transfer in the rights of victims. The third part argues that international humanitarian law’s explicit grounding of the criminalization of forced transfer and deportation in rights in home, community, and property, and protection in both internal and international conflict, has important implications for the human rights dilemma of how to help internally displaced people historically submerged behind the bulwark of traditional notions of sovereignty.
Displaced persons, Deportation, Forcible transfer, Positive international law, State sovereignty, International criminal tribunals
Human Rights Law | International Law | Law
Fan, Mary D. “Home, Community, Property: Crimes of Displacement and the Evolution in Focus from Sovereign Interests to Victim Rights-Holder” in The Global Community Yearbook of International Law and Jurisprudence 2008, edited by Giuliana Ziccardi Capaldo, 267-283. New York: Oxford University Press, 2009.