Unpopular Population Transfers: Defining Violations of and Remedies Under Geneva Convention Article 49(6)

Abstract

Pursuant to Article 49(6) of the Fourth Geneva Convention: an “Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” Adopted in 1949, Article 49(6) has no parallel provision in the Hague Convention of 1907, and the prohibition against civilian transfers is not typically considered a part of customary international law. As a result of its relative newness, there have been few occasions to interpret exactly how the provision applies. It is unclear, for example, whether a State has violated Article 49(6) if its civilians settle in an occupied territory “voluntarily.”In an effort to better understand Article 49(6) and to move toward a more consistent application of its prohibition, this Essay looks at the experience and treatment of civilian settlers in the context of several other arguably belligerent occupations (i.e., situations that were or would today be governed by occupation rules). Each of the conflicts explored in Parts I through IV - which examine the transition of East Timor from Indonesian control to independence, the continuing negotiations between Morocco and the Sahrawi people of the Western Sahara, the ongoing peace talks between Turkish and Southern Cyprus, and the break-up of the Baltic States toward the end of Soviet power - involves the transfer of settlers into a territory that was not previously independent and that was controlled by an external foreign power in an arguably illegitimate way.The similar trajectories of these conflicts suggests that the ICJ was correct in assuming a state’s material “encouragement” of civilian settlers is enough to bring the state within the purview of Article 49(6). However, neither international political bodies nor the new governments of previously occupied territories have ever embraced forcible removal of illegally transferred civilian settlers. To the contrary, history suggests that such settlers often get a voice in deciding the territory’s fate and, in most circumstances, have a right to remain in the area after occupation has ended. Despite the black and white rhetoric of the ICJ’s reparation principle, history shows that any remedy provided under Article 49(6) must in practice carefully balance the rights of persons harmed by the occupying power, the comparative innocence of settlers transferred into an occupied territory, and the feasibility of implementation in any particular case before it will be deemed acceptable to the U.N.’s governing bodies and the international community writ large.