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Commentary - Prohibition of forced movement of civilians
    [p.1471] Article 17 -- Prohibition of forced movement of civilians


    General remarks

    4847 The prohibition of forced movement is an important element in the protection of the civilian population. In fact, such displacements are all too often considered as measures falling within the range of military operations, and all too often [p.1472] civilians are uprooted from their homes and forced to live in difficult or even quite unacceptable conditions.

    4848 The problem was raised in 1949. In fact, Article 49 of the fourth Convention already laid down some norms as protection against deportations, transfers and evacuations in or from occupied territories, and it was not considered necessary to supplement these rules in Protocol I.

    4849 However common Article 3 is silent on this matter. (1) And yet the problem is particularly acute in situations of non-international armed conflict in which there have been cases, for example, of the forced movement of ethnic groups and national groups opposed to the central government.

    4850 Article 17 serves to fill this gap in the protection. The ICRC introduced this provision in its draft; it was based on a proposal put forward by experts in 1972 and inspired by the wording of Article 49 of the fourth Convention. (2) The text which was adopted, with a few additions, has the same tenor as the original draft. (3)

    4851 It should be noted that the present article only covers forced movement and does not, of course, restrict the right of civilians to move about freely within the country, subject to any restrictions that may be imposed by the circumstances, or to go abroad. (4)

    Paragraph 1

    4852 This paragraph covers displacements of the civilian population as individuals or in groups within the territory of a Contracting Party where a conflict, within the meaning of Article 1 ' (Material field of application), ' is taking place. Forced movement beyond the national boundaries is dealt with in paragraph 2.

    ' First sentence '

    4853 This sentence prohibits the forced displacement of the civilian population, except in exceptional circumstances of two kinds:

    1) The security of the civilian population. It is self-evident that a displacement designed to prevent the population from being exposed to grave danger cannot be expressly prohibited.
    2) Imperative military reasons. Military necessity as a ground for derogation from a rule always requires the most meticulous assessment of the circumstances. In this case, military necessity is qualified by referring to [p.1473] "imperative military reasons"; Article 49 of the fourth Convention also refers to "imperative military reasons". The French text uses a slightly different expression: "impérieuses raisons" while the Spanish text uses here the expression "razones imperiosas". All these terms mean the same thing. The situation should be scrutinized most carefully as the adjectiv "imperative" reduces to a minimum cases in which displacement may be ordered.

    4854 Clearly, imperative military reasons cannot be justified by political motives. For example, it would be prohibited to move a population in order to exercise more effective control over a dissident ethnic group.

    4855 The article prohibits forced movements "for reasons related to the conflict". In fact, displacement may prove to be necessary in certain cases of epidemics or natural disasters such as floods or earthquakes. Such circumstances are not covered by Article 17, and this clarification was included in the text for that reason. (5)

    ' Second sentence '

    4856 In accordance with this paragraph, forced movements must remain exceptional and be limited to cases where it is required by the security of the civilian population or imperative military reasons. In such cases "all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition". Obviously the same conditions should apply to the movement itself. These practical points are aimed at guaranteeing the displaced population with decent living conditions. They are based on Article 49, paragraph 3 , of the fourth Convention. Security conditions are related to the location of camps intended for accommodating the population; they should not be situated in the vicinity of military operations and military objectives. (6)

    4857 Like Article 49 of the fourth Convention, Article 17 emphasizes that all possible measures must be taken. The reference to "all possible measures" takes into account the fact that there might be practical difficulties, but even so it should not serve to reduce the effect of the obligation in any way. It is essentially concerned with cases where evacuation may have to be improvized on short notice and where urgency is essential in order to protect the population against imminent and unforeseen dangers. (7)

    Paragraph 2

    4858 This paragraph prohibits compelling civilians to leave their own country for reasons connected with the conflict.

    [p.1474] 4859 First, there is a question whether, within the meaning of this provision, the term "territory" is equivalent to country. The ICRC draft referred to "national territory". (8) Some amendments proposedsubstituting the formula "across the frontiers of the country of origin". (9) It is clear that there was never any doubt in anyone's mind that the phrase was intended to refer to the whole of the territory of a country. However, the text states that it is prohibited to compel civilians to leave "their own territory". In fact, this formula appears to be better suited to all the possible cases which might arise in a situation covered by Protocol II, and to take into account, in particular, situations where the insurgent party is in control of an extensive part of the territory. In this case the insurgents, too, should respect the obligation laid down here, and not compel civilians to leave the area under their authority. (10)

    4860 The prohibition covers measures taken against civilians, either individually or in groups.

    4861 An example would be expulsion of groups of civilians across the boundaries by armed forces or armed groups because of military operations. Basically these are the kind of cases that the Conference intended to cover.

    4862 The problem may prove to be more complex in individual cases. In our view, to get one or more people to leave the country by means of threats should also be considered as forced movement.

    4863 What is the position as regards deportation measures obliging an individual to leave his country?

    4864 If such a measure arises from the situation of conflict, it constitutes forced movement within the meaning of this article; however, this conclusion is not without possible exceptions as, for example, a sentence following conviction giving the option to leave the territory, might not be considered as such.

    4865 If the conviction is not related to the conflict, it is clear that that measure is not covered by the article under consideration here.

    4866 Some delegations preferred to include explicit exceptions, but these were not adopted for the sake of simplification of the text. (11)

    4867 In specific cases each Contracting Party will probably seek an interpretation related to already existing national legislation on this subject, without losing sight of the humanitarian aim of the obligation imposed upon it by this article.

    4868 Finally, it should be noted that national legislation concerning aliens is not affected by this provision. (12)

    ' S.J. '


    * (1) [(1) p.1472] Although common Art. 3 is silent on the question of transfers as such, it does prohibit inhumane and degrading treatment;

    (2) [(2) p.1472] See ' CE 1972, Report ', Vol. II, p. 50, CE/COM II/85, and Art. 49, paras. 1-3, Fourth Convention. See also Resolution 2675 (XXV) of the United Nations General Assembly, Principle 7;

    (3) [(3) p.1472] Draft Art. 29;

    (4) [(4) p.1472] O.R. XIV, p. 224, CDDH/III/SR.24, para. 46;

    (5) [(5) p.1473] O.R. XV, p. 295, CDDH/215/Rev.1, paras. 149-150;

    (6) [(6) p.1473] O.R. XIV, p. 224, CDDH/III/SR.24, paras. 44-47. On the concept of military objectives, see Art. 52, para. 2, of Protocol I, and the commentary thereon, supra, p. 635;

    (7) [(7) p.1473] See ' Commentary IV, ' p. 281 (Art. 49);

    (8) [(8) p.1474] Draft Art. 29;

    (9) [(9) p.1474] O.R. IV, p. 94, CDDH/III/12 and CDDH/III/327;

    (10) [(10) p.1474] See O.R. XIV, p. 325, CDDH/III/SR.24, para. 52;

    (11) [(11) p.1474] See O.R. XV, p. 324, CDDH/215/Rev.1 (Art. 29). The text read as follows: "except in cases in which individuals finally convicted of crimes are required to leave that territory or having been offered the opportunity of leaving the territory, elect to do so, or individuals are extradited in conformity with law". See also O.R. IV, p. 103, CDDH/427;

    (12) [(12) p.1474] See ' Commentary Drafts, ' p. 161;