Prosecuting Denial of Right of Return of Georgian IDPs under the Rome Statute

[Giorgi Nakashidze (LL.B., LL.M) is a Ph.D. (expected 2021) in international law at the Tbilisi State University. His primary research areas are international criminal, humanitarian and human rights law, use of force and international litigation. He is also a reporter for Oxford Reports on International Law. Currently he is serving as Chargé d’Affaires ad interim at the Embassy of Georgia to the Kingdom of the Netherlands. The views expressed herewith are the solely author’s own in his personal capacity and do not in any way intend to represent the official views of any organization the author may be affiliated with.]

Introduction

Following the 2008 Russo-Georgian armed conflict, reportedly about 135,000 Georgian nationals fled (IIFFMCG, para. 28) Tskhinvali Region/South Ossetia and Abkhazia. Since then, internally displaced persons (IDPs) have been deliberately prevented from returning to their homes in the Russian-occupied Georgian territories.

In January 2021, the Grand Chamber of the European Court of Human Rights (“ECtHR”) delivered its long-awaited judgment in the case of Georgia v. Russia (II). The ECtHR, inter alia, held (paras. 292-301) that prevention by the Russian Federation and the de facto authorities of Abkhazia and South Ossetia of Georgian IDPs from return to their homes amounts to a violation of freedom of movement, which is guaranteed under the European Convention on Human Rights (Article 2 of Protocol No. 4). Unlike the ECtHR’s previous case law on rights of IDPs, which always reshaped around the private life and property rights, Georgia v. Russia (II) was the first case when the ECtHR upheld the right to return of IDPs under freedom of movement. Thus, this judgment is perhaps a culmination point in recognizing the right of return of Georgian IDPs.

Whilst the issue of Georgian IDPs and their right of return has now been upheld by the ECtHR and had been heavily scrutinized before (see e.g. analysis by UNHCR), far less attention is paid to possible repercussions under international criminal law.

Against this backdrop, the present post seeks to fill this gap by arguing that deliberate prevention of Georgian nationals from returning to their homes in the occupied regions can be prosecuted by the International Criminal Court (ICC) in its ongoing investigation in the Situation in Georgia as a distinct crime against humanity (“CaH”) under Article 7(1)(k) of the Rome Statute (I will not address the war crimes). The basis of this assertion is ICC’s obiter dictum from its recent Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute” in the Situation in Bangladesh/Myanmar (“Rohingya Decision”), where the Pre-Trial Chamber (PTC) I opined that prevention of Rohingyas from returning to their homes may fall within under Article 7(1)(k) of the Rome Statute.

Denial of Right of Return as an “Other Inhumane Act” under Article 7(1)(k) of the Rome Statute

Denial of right of return of displaced persons (IDPs or refugees) is not a separate CaH under the Rome Statute. While the Rome Statute explicitly mentions that forced displacement of population from their habitual residence may constitute crimes against humanity under Article 7(1)(d) or war crimes under Articles 8(2)(a)(vii) and 8(2)(b)(viii) (provided that other requirements are met), neither Article 7 nor Article 8 outlaw denial of the right of return as a distinct criminal act.

Yet, Article 7(1)(k) of the Rome Statute criminalizes “other inhumane acts” which meet the contextual threshold of CaH under Article 7(1) of the Rome Statute (“a widespread or systematic attack directed against any civilian population”), and specific threshold of “other inhumane acts” (“acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”). In this sense, Article 7(1)(k) is a catch-all crime since it was unfeasible to enumerate all CaH under Article 7 (Werle/Jeßberger (2020), p. 436). On a more general level, this residual clause, together with the principle of nullum crimen sine lege, encompass “serious violations of international customary law and the basic rights pertaining to human beings, drawn from the norms of international human rights law, which are of a similar nature and gravity to the acts referred to in article 7(1)” (ICC, Katanga and Ngudjolo Chui, para. 448).

In Rohingya Decision, PTC I held that following the deportation of Rohingya people, who allegedly lived in appalling conditions in Bangladesh and were supposedly impeded to return to Myanmar, prevention of their return would fall within article 7(1)(k) of the Rome Statute if these allegations were to be established to the required threshold:

“[…] article 7(1)(k) of the Statute stipulates that “[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”, amount to a crime against humanity within the jurisdiction of the Court. The Chamber notes that, following their deportation, members of the Rohingya people allegedly live in appalling conditions in Bangladesh and that the authorities of Myanmar supposedly impede their return to Myanmar. If these allegations were to be established to the required threshold, preventing the return of members of the Rohingya people falls within article 7(1)(k) of the Statute. Under international human rights law, no one may be arbitrarily deprived of the right to enter one’s own country. Such conduct would, thus, be of a character similar to the crime against humanity of persecution, which “means the intentional and severe deprivation of fundamental rights contrary to international law”. Furthermore, preventing a person from returning to his or her own country causes “great suffering, or serious injury […] to mental […] health”. In this manner, the anguish of persons uprooted from their own homes and forced to leave their country is deepened. It renders the victims’ future even more uncertain and compels them to continue living in deplorable conditions.” (Rohingya Decision, para. 77 (footnotes omitted)).

However, in the subsequent authorization decision (para. 111) PTC III did not find it necessary “to form any view” on this matter. Nevertheless, PTC I’s obiter dictum prompted some new scholarly analysis, arguing that the denial of the right of return can be contemplated as a separate CaH under Article 7(1)(k) of the Rome Statute (see here and here).

Moreover, the Rohingya Decision is noteworthy for another clarification: referring to the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY), PTC I, for the first time in the ICC’s case law, made a distinction between deportation and forcible transfer of population under Article 7(d). According to the PTC I, those acts are two separate crimes against humanity on the ground of “destination requirement”: while deportation involves displacement across national borders, a forcible transfer is committed within the national borders (Rohingya Decision, para. 57).

The Possibility to Prosecute Denial of Right of Return of Georgian IDPs by the ICC

On 27 January 2016, ICC authorized the Prosecutor to open proprio motu investigation in the Situation in Georgia in relation to alleged CaH and war crimes committed in and around Tskhinvali Region in the context of Russian-Georgian international armed conflict of 2008. One of the alleged crimes on which the ICC’s investigation focuses is forcible transfer of population under Article 7(d). The ICC was satisfied that the specific requirements of the crimes against humanity of “deportation or forcible transfer of population” were met (Georgia, Decision, para. 31).

Notably, in the ICC treated “deportation or forcible transfer of population” under Article 7(d) as a single crime (Georgia, Decision, para. 31). However, as shown above, under Article 7(d) deportation is a cross-border crime and forcible transfer has an intrastate nature. Since in the Situation in Georgia displaced persons did not cross Georgia’s international borders and were displaced within Georgia’s national borders, this seems to be a reason why the ICC’s webpage on the Situation in Georgia, unlike the authorization decision in the same Situation, omits deportation and mentions only forcible transfer of population.

Thus, the circumstances are not identical between Bangladesh/Myanmar and Georgia in terms of forced displacement: in the former, ICC’s pronouncement was made in the context of deportation (cross border displacement), while the latter concerns forcible transfer of population (intrastate displacement). This raises the question of whether preventing victims of intrastate displacement to return to their homes in the occupied territories can be prosecuted as an “other inhumane act” in ICC’s ongoing investigation in Georgia.

I believe that the answer can be in the affirmative. As the space does not permit to assess the every aspect of this assertion in detail, I will shortly address three points.

Firstly, it is the ICC Prosecutor’s prerogative to file charges under Article 7(1)(k) and show that preventing Georgian IDPs from returning is prosecutable as “other inhumane act”. Making this step is to be facilitated by the fact that contextual threshold of CaH under Article 7(1) of the Rome Statute has already been positively decided by the ICC, and what remains is to assess whether the requirements of “other inhumane acts” are met. Moreover, in the Situation in Georgia, the ICC gave the Prosecutor leeway to file additional charges if they are “sufficiently linked thereto [the parameters of the situation] and, obviously, fall within the Court’s jurisdiction” (Georgia, Decision, para. 64).

Secondly, it will be necessary for the Prosecutor to plead that while the right of return can be qualified as “other inhumane acts” in respect of deportation (cross border displacement), this is also mutatis mutandis attainable in case of forcible transfer of population (intrastate displacement). ICC’s observation in relation to cross-border displacement is that “preventing a person from returning to his or her own country causes “great suffering or serious injury […] to mental […] health” (Rohingya Decision, para. 64). The same can be argued in respect of people who are prevented from returning to their homes in the occupied territories. Put differently, if cross-border displacement can meet the threshold of “other inhumane acts”, so is intrastate displacement, as the common underlying feature in both situations is “the anguish of persons uprooted from their own homes” (Rohingya Decision, para. 77) and not the destination, where they were forced to flee.

Finally, one could potentially take the view that the analogy between cross-border and intrastate displacement for the purposes of prosecution denial of right of return of Georgian IDPs is manifestly forced. However, the following question should be asked: can occupied territories have “borders” for the purposes of deportation under CaH? While the ICC did not touch upon this issue since it was not necessary to do so in the Situation in Bangladesh/ Myanmar, the ICTY Appeals Chamber in Stakić case (para. 301), while examining the issue of deportation under CaH, averred that forced displacement from “the de facto borders of occupied territory […] would automatically be sufficient to amount to deportation under customary international law”. Thus, occupied territories may have “borders” for the purposes of deportation of CaH. Accordingly, denial of right of return of Georgian IDPs is prosecutable not only from the perspective of “the anguish of persons uprooted from their own homes”, but also from the viewpoint of “destination requirement” as Georgian IDPs were forced the “the de facto borders” of the Russia-occupied territories.

Conclusion

The purpose of this post was to outline the possibility of prosecuting denial of the right of return of Georgian IDPs as a distinct crime against humanity by the ICC in its ongoing investigation. As rightfully mentioned elsewhere, no international criminal tribunal has prosecuted denial of the right of return as a distinct crime to date. ICC’s novel obiter dictum that denial of right of return may be qualified as a distinct crime of “other unhuman act” under Article 7(1)(k) of the Rome Statute should be welcomed for at least doctrinal development of CaH and for further advocating rights of displaced persons. In practical terms, embedding denial of the right of return of IDPs within Article 7(1)(k) of the Rome Statute may contribute to improving the international regime of the legal protection of IDPs. To keep the bigger picture of international justice in mind, prosecuting denial of the right to return of Georgian IDPs would complement the state responsibility as found by the ECtHR in Georgia v. Russia (II) with individual criminal responsibility under the Rome Statute.