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Without order, anything goes? The prohibition of forced displacement in non-international armed conflict

30-09-2009 Article, International Review of the Red Cross, No. 875, by Jan Willms

Article 17(1) of Additional Protocol II and customary international humanitarian law seem only to prohibit the "ordering" of displacement in non-international armed conflict. However, by interpreting these norms in light of State practice, the author concludes that forced displacement is prohibited regardless of whether it is ordered or not. Nevertheless, an order may still be required to constitute the crime of forced displacement under the Rome Statute.


Jan Willms is former legal attache¤ at the International Committee of the Red Cross and former Carlo Schmid Fellow at the International Criminal Tribunal for the former Yugoslavia. He holds an LL.M. in Public International Law from the University of Nottingham. 
At first glance, merely the ‘ordering’ of displacement seems to be prohibited in noninternational armed conflict. However, after interpreting Article 17(1) AP II and Rule 129(B) of the ICRC Customary Law Study with particular regard to State practice and opinio juris, the author concludes that these norms prohibit forced displacement regardless of whether it is ordered or not. On the other hand, the ICC Elements of Crimes for the crime of forced displacement under Article 8(2)(e)(viii) ICC Statute require an order. It remains to be seen whether the ICC adopts that interpretation in its jurisprudence.  


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