4. Such order was not justified by the security of the civilians involved or by military necessity

4. Such order was not justified by the security of the civilians involved or by military necessity

In the Krstić case, the Trial Chamber found that:

"Article 49 of the Fourth Geneva Convention and Article 17 of Protocol II allow total or partial evacuation of the population 'if the security of the population or imperative military reasons so demand'. Article 49 however specifies that 'persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased'."[1]

"As a preliminary matter, this condition is not satisfied in the present case. The Srebrenica citizens who had gathered in Poto~ari were not returned to their homes as soon as hostilities in the area in question had ceased. In fact, active hostilities in Srebrenica town itself and to the south of the enclave had already ceased by the time people were bussed out of Poto~ari. Security of the civilian population can thus not be presented as the reason justifying the transfer."[2]

"The atmosphere of terror in which the evacuation was conducted proves, conversely, that the transfer was carried out in furtherance of a well organised policy whose purpose was to expel the Bosnian Muslim population from the enclave. The evacuation was itself the goal and neither the protection of the civilians nor imperative military necessity justified the action."[3]

"The Chamber next must determine whether the civilians were in fact forcefully transferred. The commentary to Article 49 of Geneva Convention IV suggests that departures motivated by the fear of discrimination are not necessarily in violation of the law."[4]

"The term "forcibly" is not restricted to direct physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment."[5]

In Krnojelac, the Trial Chamber found that:

"The term 'forcibly' is not restricted to direct physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment."[6]

In the Furundžija Trial Judgement it was held that:

"[...] in addition to actual forced expulsion, by analogy, the force or coercion necessary to constitute rape can consist of force or threats of force against the victim or a third person, such threats being express or implied and placing the victim in reasonable fear that he, she or a third person will be subjected to violence, detention, duress or psychological oppression."[7]

In the Krstić case, however, the Chamber found that:

"The threats to Srebrenica residents far transcended mere fear of discrimination. The evacuation took place at the final stage of a campaign conducted to force the population to flee the enclave during a time when VRS troops were actively threatening and injuring the Bosnian Muslim civilians of Srebrenica. The negotiations between the Bosnian Muslim 'representative', Nesib Mand`ič, and General Mladič at the second meeting in the Hotel Fontana on 11 July attest to the intimidating conditions in which the Bosnian Muslim civilians were evacuated. The Trial Chamber has already found that, despite the attempts by the VRS to make it look like a voluntary movement, the Bosnian Muslims of Srebrenica were not exercising a genuine choice to go, but reacted reflexively to a certainty that their survival depended on their flight."[8]

The Trial Chamber in Gotovina et al. stated that:

"Deportation and forcible transfer both entail the forcible displacement of persons from the area in which they are lawfully present, without grounds permitted under international law. The crime of deportation requires that the victims be displaced across a de jure state border, or, in certain circumstances, a de facto border. Forcible transfer involves displacement of persons within national boundaries."

"Forcible displacement means that people are moved against their will or without a genuine choice. Fear of violence, duress, detention, psychological oppression, and other such circumstances may create an environment where there is no choice but to leave, thus amounting to the forcible displacement of people. Displacement of persons carried out pursuant to an agreement among political or military leaders, or under the auspices of the ICRC or another neutral organization, does not necessarily make it voluntary."

"International humanitarian law recognizes limited circumstances under which the displacement of civilians during armed conflict is allowed, namely if it is carried out for the security of the persons involved, or for imperative military reasons. In such cases the displacement is temporary and must be carried out in such a manner as to ensure that displaced persons are returned to their homes as soon as the situation allows. Whether a forcible displacement of people is lawful is, however, more appropriately dealt with when considering the general elements of crimes against humanity [...]."[9]

The Trial Chamber in Perisic held that:

"Forcible transfer is considered in the jurisprudence of the Tribunal to constitute 'other inhumane acts'. Forcible transfer entails the forcible displacement of persons from the area in which they are lawfully present, without grounds permitted under international law."

"The actus reus of forcible transfer is the forced displacement of persons within national boundaries. The element that the displacement be forced requires that the victims had no genuine choice in their displacement. Fear of violence, duress, detention, psychological oppression, and other such circumstances may create an environment where there is no choice but to leave, thus amounting to the forced displacement of persons. In situations where the victims have consented, or even requested, their removal, that consent 'must be real in the sense that it is given voluntarily and as a result of the individual's free will, assessed in the light of surrounding circumstances'. Consequently, the trier of fact must consider the prevailing situation and atmosphere, as well as all relevant circumstances, including in particular the victims' vulnerability, when assessing whether the displaced victims had a genuine choice to remain or leave."

"International law recognises limited circumstances under which involuntary displacements are permitted on humanitarian grounds. Thus, in cases where displacements are permitted on humanitarian grounds, the act of displacement cannot constitute the actus reus of forcible transfer. However, displacements for humanitarian reasons are not justifiable where the humanitarian crisis that caused the displacement is itself the result of the accused's own unlawful activity."[10]

The Trial Chamber in Tolimir stated that:

"The crimes of forcible transfer and deportation are substantially similar. Both are defined by the forced displacement of persons by expulsion or other forms of coercion from an area in which they are lawfully present without grounds permitted by international law. The distinction between the two crimes lies in the location to which the victims are displaced. For an act to constitute deportation, the displacement of persons must occur across a de jure border between States or, in certain circumstances, a de facto border between states. Forcible transfer applies to the movement of persons internally within a national border."[11]