Settlements

Geneva Convention (IV)

570. Article 49 (sixth paragraph) of Geneva Convention (IV) promulgates:

Although this prohibition is not enumerated as a grave breach in the Convention itself, Article 85(4)(a) of Protocol I appends it to the list of grave breaches. Article 8(2)(b)(viii) of the Rome Statute of the International Criminal Court stigmatizes as a war crime the ‘transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies’. The words ‘directly or indirectly’ appear neither in the original Geneva text nor in the Protocol. They were inserted in the Rome Statute as a reminder that not only a compulsory transfer into the occupied territories counts, but also one based on acts of ‘inducement and facilitation’. The reminder was intended ‘as a snub to Israel’. In the Elements of Crime, a footnote was appended, whereby ‘[t]he term “transfer” needs to be interpreted in accordance with the relevant provisions of international humanitarian law’.

571. The use of the verbs ‘deport’ and ‘transfer’ in the sixth paragraph of Article 49 (in relation to the Occupying Power's own population) – the same key words employed in the first paragraph of the Article (having to do with protected persons in an occupied territory) (see supra 376) – may cause some confusion.