Andrea Maria Pelliconi, PhD candidate in Law & GTA at City University of London

In an article for the Israel Law Review, Tomer Levinger argues that denying people the right to go back to their own country can be construed as a crime against humanity (CAH).[1] Building upon Levinger’s arguments, briefly presented here, this paper proposes a broader theorisation where denying return is one – possible – component of a wider strategy of demographic engineering. It will be held that this strategy can itself amount to a CAH, if the relevant elements of the crime are present.[2]

Levinger argues that State or State-like agents could incur in international criminal liability if they intentionally inhibit internationally displaced people from returning to their country. Demonstrating a fondness in moral and teleological understandings of international law, Levinger justifies the existence of a right to return not only on the basis of relevant legal instruments, but most notably on two doctrinal justifications: David Miller’ argument of the human need to belong to a community, and prevention of statelessness, or, in Hannah Arendt’s definition, rightlessness. Drawing from David Luban’s theory of CAH as violation of humans’ political nature, Levinger concludes that the denial of the right to return could be classified as such. Finally, Levinger applies this theory to the situation of the Rohingya people forcibly expelled from the Rakhine State in Myanmar, arguing that there are grounds to claim that the denial of their right of return amounts to a CAH.

Miller’s justification of the existence of a ‘right to return’ places great emphasis on the collective dimension. The correspondent CAH is a violation of peoples’ sense of belonging, rather than their individual characteristics. Under this perspective, both the interest in returning, and the consequent right to return, would weaken as time lapses, and could vanish as all community members are expelled from the country of origin. This view is not reflected in the text of the relevant legal instruments,[3] which establish a self-standing individual right to return to one’s country, irrespective of existing community ties. And indeed, as Levinger notes, Arendt’s justification based on the need to avoid rightlessness can stand on its own.

Arguably the two perspectives complement each other. On the one hand, the former supports the idea that one’s country is to be understood with reference to subjective features, rather than formalistic factors like citizenship or legal residency. In addition, the collective dimension of the justification for the individual right to return could support the existence of a group right to return and self-determination instances. On the other hand, by acknowledging that an individual right to return exists (also) irrespective of such strong sense of belonging, legal scholarship would allow for a more liberal approach beyond stringent time limits, and would accommodate those cases – quite plausible in practice – where the whole community has been displaced. Such approach may also give some leverage to claims pertaining to other situations, individualistic in nature, such as the right of foreign fighters to repatriate, or that of offenders to serve the sentence in their country of origin. While these situations may hardly amount to CAH under international criminal law, yet they could be regarded to as other forms of violations of international human rights.

The applicability of Levinger’s theory to the case of Rohingya is supported by jurisprudential developments at the International Criminal Court (ICC) on the currently investigated Bangladesh/Myanmar case. In its ruling on jurisdiction, the Pre-Trial Chamber I anticipated that denying the Rohingya peoples’ right of return to Myanmar could amount to CAH, as long as the required threshold is met.[4] The arbitrary denial of the right to enter one’s own country, in the Chamber’s view, has a ‘similar character’ to the CAH of persecution i.e. unlawful, intentional and severe deprivation of fundamental rights.

In a more articulated way, the ICC Prosecutor argued that the violation of Rohingya’s right to return is likely to amount to the CAH of ‘other inhumane acts’,[5] and investigated the legal basis under article 7(1)(k) of the Rome Statute.[6] Customary international law, the Prosecutor maintained, gives bona fide refugees and victims of forced displacement, who are unable to return as a consequence of the perpetrator’s conduct, a right to return to the State of origin ‘safely and humanely’, provided that the situation has resulted in great physical or mental suffering or serious injury and that there is sufficient connection with the State of return.[7]

The Prosecutor claimed that such fundamental right to return had crystallised in universally accepted customary international law, since every UN member State seems to have accepted at least one material obligation in this regard. Indeed, such norm appears in many core international human rights treaties     [8] and regional charters.[9] This is further confirmed by the recent practice of the UN Security Council in affirming the right of refugees and displaced persons to return to their homes, and requiring States to respect, enforce and facilitate it.[10] The International Committee of the Red Cross also affirms that displaced persons have a right under customary international humanitarian law to voluntary return in safety to their homes as soon as the reasons for their displacement cease to exist, as provided by Article 49 of the Geneva Convention IV.

The Prosecutor, interestingly, also pointed out the existence of a precedent. In Gotovina, the International Criminal Tribunal for the former Yugoslavia (ICTY) found that restrictive and discriminatory measures regarding housing and property, in conjunction with deportation and other crimes, constituted the CAH of persecution.[11] Such measures included a deliberate policy to incentivise settlement of affiliates to homes abandoned by members of another ethnic group, whose return was deliberately limited to a minimum.[12]

The situation described by the ICTY, however, does not seem to be circumscribed to what is intended with ‘denial of return’ stricto sensu, but rather suggests the existence of a broader strategy comprised of several policy measures. Denial of return may not only be enforced via forcible means and physical constraint, but also via administrative and legal barriers, including criminalisation of returnees, resettlement of ally groups, discriminatory real estate legislation, and a general environment of systemic polity exclusion. More generally, this practice could be part of a series of measures encouraging – rather than compelling – population redistribution in a given area.

This authority-sponsored manipulation of the composition of a territory for strategic purposes can be defined as ‘demographic engineering’. As elaborated by Paul Morland, demographic engineering can be carried out through violent methods such as forcible transfers and ethnic cleansing (‘hard demographic engineering’), administrative and policy measures (‘soft demographic engineering’), or a combination of the two.[13] Either way, this systematic strategy could amount to a CAH.

It is thus held here that demographic engineering can entail, but is not limited to, denial of right to return. This is supported by a series of UN Resolutions on the situation in Syria suggesting that demographic engineering practices implemented in the country may amount to war crimes or CAH.[14] Demographic engineering is intended as including strategies like forced displacements of civilians by the Syrian regime, and the adoption of legal instruments introducing obstacles preventing the return of refugees and displaced people, for example by promoting land appropriation by affiliates.[15]

Understanding denial of return as one of the possible activities constituting demographic engineering helps to frame its gravity within a wider, systematic policy, whose impact is broader than single actions. In addition, the notion of demographic engineering is useful in circumstances of internal displacement, where the argument of right to return to one’s country cannot be used, e.g. non-international armed conflict. This brings another observation regarding perpetrators. Levinger assumes that the State of origin prevents returnees from entering the country. However, one may envisage a potential situation where the State of reception prevents refugees from returning to their home country because of geopolitical or military interests. This sort of ‘mass hostage-taking scenario’ may also be understood as a violation of the right to return within the context of an overall demographic engineering strategy amounting to CAH.

In conclusion, it is argued here that Levinger’s convincing arguments on denial of right to return as a CAH – either ‘persecution’ or ‘other inhumane acts’ – could be applied to the concept of demographic engineering. Framing denial of return as a component of demographic engineering is useful to visualise the broader picture and its real scale, which would help to prove elements of CAH like gravity and systematicity. It also allows to address cases of internal displacement. More generally, demographic engineering could be construed not only as a violation of individual fundamental rights, but also as a violation of a group’s right to self-determination.

[1] Tomer Levinger, ‘Denying the Right of Return as a Crime Against Humanity’ Isr Law Rev (2021) pp. 1 – 31.

[2] This paper does not intend to argue in favour of the need to expand international criminal law and its sanctionatory outreach. First, it is not suggested to add a new crime. Rather, this article is a maieutic exercise to expound the content of an already existing, positivised, and legally knowable criminal offence, i.e. CAH, as long as demographic engineering strategies comply with the ejusdem generis rule. Second, bearing in mind the existing critiques to international criminal law’s hyperinflation, the assumption stands valid that international criminal responsibility is not the ideal means to address these issues. General international human rights law, theories of State responsibility and preventive actions remain the desirable tools of the international law demiurge to tackle demographic engineering and denial of return. Nonetheless, as Bassiouni noted, framing certain actions as international crimes could help deterrence and define the global community’s unequivocal stigma (to be) attached to those actions, thus helping to frame them under international human rights law (see Mahmoud Cherif Bassiouni, International Criminal Law, Vol 1 (3rd ed, Brill 2008) p. 586).

[3] See e.g. Universal Declaration of Human Rights, 10 December 1948, art. 13(2); International Covenant on Civil and Political Rights, 16 December 1966, art. 12(4); International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, art. 5(d)(ii); Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, art. 49. See also the broad authoritative definition of ‘own’s nation’ by the UN Human Rights Committee, which implicitly seems to exclude the necessity of existing community ties: HRC General Comment 27 CCPR General Comment No. 27, art. 12, 2 November 1999 [CCPR/C/21/Rev.1/Add.9].

[4] ICC, Situation in Bangladesh/Myanmar, Decision on the ‘Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute’, ICC-RoC46(3)-01/18, Pre-Trial Chamber I, 6 September 2018, para. 77.

[5] ICC, Situation in Bangladesh/Myanmar, Request for Authorisation of an Investigation pursuant to Article 15, ICC-01/19-7, Pre-Trial Chamber III, 4 July 2019, para. 124.

[6] Rome Statute of the International Criminal Court (entered into force 1 July 2002) 2187 UNTS 90, art 7(1)(k).

[7] A potential contentious issue is Myanmar’s claim that Rohingya were, in fact, illegal migrants and land occupants. Many efforts have been devoted to construing this narrative, which is reflected in the deliberate and longstanding exclusion of Rohingya from citizenship rights. Myanmar may advance this defence to challenge the argument that Rohingya are trying to return to their own country, and that they hold a sufficient connection. The evidence and counter arguments against this position could be explored elsewhere.

[8] International Covenant on Civil and Political Rights, International Convention on the Elimination of All Forms of Discrimination, Convention on the Rights of the Child, Convention on the Rights of Persons with Disabilities, International Convention on the Suppression and Punishment of the Crime of Apartheid, besides the Universal Declaration of Human Rights.

[9] Protocol 4 to the European Convention on Human Rights, American Convention on Human Rights, African Convention on Human and Peoples’ Rights, Arab Charter on Human Rights.

[10] See e.g. UNSC Res. 876/1993, para. 5; UNSC Res. 859/1993, para. 6; UNSC Res. 1031/1995, para. 8; UNSC Res. 1088/1996, para. 11; UNSC Res. 1096/1997, para. 8; UNSC Res. 1239/1999, para. 4; UNSC Res. 1244/1999, paras. 9, 11.

[11] ICTY, Prosecutor v Gotovina et al, IT-06-90-T, Judgement of 15 April 2011, TJ vol. II, paras. 1843, 1846, 2057, 2090-2098, 2308, 2312.

[12] Id.

[13] Paul Morland, Demographic Engineering: Population Strategies in Ethnic Conflict (Routledge 2014).

[14] See inter alia HRC, thirty-eighth session, Res. 38/16 The human rights situation in the Syrian Arab Republic, 2 July 2018 [A/HRC/38/L.20] point 21; HRC, forty-second session, Res. 42/27 The human rights situation in the Syrian Arab Republic, 24 September 2019 [A/HRC/42/L.22] point 32; UNSC, seventy-fourth year, Report of the Secretary-General on the implementation of resolutions 2139 (2014), 2165 (2014), 2191 (2014), 2258 (2015), 2332 (2016), 2393 (2017), 2401 (2018) and 2449 (2018) (S/2019/820), The situation in the Middle East, 24 October 2019 [S/PV.8645], Russian Federation and United Kingdom.

[15] See UN Side-Event “Forced displacement in Syria and the need for gender sensitive accountability”, Statement by Mr François Delattre, Permanent Representative of France to the United Nations, 10 July 2018, available at <https://onu.delegfrance.org/Forced-displacement-in-Syria-and-the-need-for-gender-sensitive-accountability>.