The International Court of Justice (‘Court’) delivered the Israel’s Practices and Policies Advisory Opinion on 19 July 2024. While examining the legality of the measures taken by Israel, the court gave due consideration to ‘the large-scale confiscation of land and the deprivation of access to natural resources … inducing [the Palestinian population’s] departure’ (para. 143). The Court referred to a number of reports by United Nations bodies to rule on the nature of displacement of the Palestinian population.

In its Advisory Opinion, the Court relied on Article 49 of the Fourth Geneva Convention (‘GCIV’) to determine the illegality of the forced displacement of the Palestinian population. The Court stated that the policies and practices of Israel leave the Palestinians with ‘no choice … but to leave’ (para. 147). The Court interpreted this compulsion to leave to be within the meaning of ‘forcible’ under the first paragraph of Article 49. For this constructive interpretation, the Court relied on the travaux of GCIV and the case of Stakić of the International Criminal Tribunal for the former Yugoslavia (‘ICTY’). In light of this, we discuss, in greater detail, the evolution of the interpretation of forcible transfers under Article 49 of GCIV, leading up to the latest Advisory Opinion rendered by the Court.

Article 49 of GCIV deals with deportations, transfers, and evacuations of protected persons under occupied territory. The first paragraph of the Article prohibits ‘individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, … regardless of their motive’. Moreover, as per the second paragraph, internal displacement of the population through total or partial evacuation is prohibited except for the ‘security of the population or imperative military reasons’.

During the drafting of this Article, the delegate of the Soviet Union emphasised the need to include the word ‘forcible’ in the obligation under the first paragraph. It was also proposed that the phrase ‘against their will’ be deleted from the Stockholm draft of the Article due to potential misinterpretations and abuses that might arise from such wording, especially considering that freely exercising one’s will was not possible in an occupied territory (Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II, Section A, p. 664). Ultimately, the Drafting Committee decided to prohibit only forcible transfers, leaving open the possibility of voluntary transfers (p. 827).

It seems, therefore, that the word ‘forcible’ accounts for not only the physical force used for effecting the transfers without consent but also the forced nature of consent itself. It implies that even in cases where the movement of population appears voluntary, in the absence of direct action by the forces of the Occupying Power, the circumstances prevailing in the occupied territory are such that the population finds it preferable, in the interest of their safety and security, to move out.

Indeed, the ICTY adopted this interpretation, also citing the preparatory works of GCIV. In Prosecutor v. Krnojelac, the Appeals Chamber overturned the Trial Chamber’s judgement concerning the forcible deportation of detainees. It determined that although some prisoners expressed happiness about the exchanges, this did not meet the threshold of genuine choice, as the surrounding circumstances deprived it of any meaningful value (para. 229). Similarly, in Prosecutor v. Stakić, the Appeals Chamber, drawing on the precedent set in Krnojelac, explicitly held the definition of forced deportation to include ‘other forms of coercion such that the displacement is involuntary in nature’ (para. 279). This definition recognised that, beyond the use of physical force, the mere threat of force or coercion – resulting in fear of violence, duress, or even psychological oppression – could constitute forcible deportation.

For instance, in Prosecutor v. Krajišnik, the Trial Chamber observed that Muslims and Croats were forcibly displaced from numerous municipalities as local authorities and forces had created ‘severe living conditions’, making it practically impossible for these groups to remain (para. 729). The measures included house searches, cutting off of water, electricity, and telephone services, illegal arrests and interrogations, as well as individual killings and massacres.

The International Criminal Court (ICC) as well as the International Residual Mechanism for Criminal Tribunals (MICT) later adopted this expanded approach towards forcible transfers. In Prosecutor v. Ntaganda, the ICC Trial Chamber, after relying on the above-mentioned jurisprudence, observed that ‘when assessing whether the persons who were transferred had a genuine choice to remain or leave and thus whether the resultant displacement was unlawful, the Chamber will take into account the prevailing situation and atmosphere, … including in particular the victims’ vulnerability’ (para. 1056). The MICT Appeals Chamber, in Prosecutor v. Seselj, even went as far as to recognise the role of anti-Croatian hate speeches, considering the general atmosphere of constant threats of violence and coercion, along with the lack of assistance from local authorities, as constituting forcible displacement (para. 150).

In light of these judgments, it is evident that international criminal courts and tribunals, initially relying on the travaux of GCIV, have accepted a constructive definition of forcible transfers of protected populations. Similarly, the Elements of Crimes for the Rome Statute explicitly defines the term ‘forcibly’ to include not only physical force but also threats and other forms of coercion (Elements of Crimes, fn. 12).

The ICRC Commentary on Article 49 clarifies that the specific prohibition on forcible transfers allows certain protected persons to leave voluntarily – particularly persecuted religious and ethnic minorities who might have legitimate desires for wishing to leave. However, it does not address the possibility that such desires might be influenced by the coercive and discriminatory policies and practices of the Occupying Power. Therefore, the Court’s acceptance of this constructive interpretation of Article 49 in its latest Advisory Opinion is particularly significant. This approach recognises that, in reality, the choice to leave or stay is often merely nominal, given the pervasive coercion and discrimination in occupied territories. In this regard, a careful examination of the totality of conditions that the protected persons are situated in is essential to give effect to this Article and uphold its purpose in safeguarding protected populations in occupied territories.

Shagnik Mukherjea is an undergraduate student at the Rajiv Gandhi National University of Law, Punjab, India. His research interests include public international law and comparative constitutional law.

Kusha Grover is an undergraduate student at Rajiv Gandhi National University of Law, Punjab, India. Her research interests include public international law and constitutional law.

Read more about this and related topics in the Asian Journal of International Law.