Current Developments at the Ad Hoc International Criminal Tribunals

Extract

1. Substantive Developments

A. Crimes

1. Crimes Against Humanity

(a) Deportation (Article 5(d) ICTYSt.) and Forcible Transfer (Other Inhumane Acts — Article 5(i) ICTYSt.) — Forced displacement without grounds permitted under international law

The Trial Chamber¹ in Gotovina et al. held that a principle recognized by the Eritrea Ethiopia Claims Commission (EECC),² under which belligerent states have broad although not absolute powers to expel nationals of an enemy state from their territory during an armed conflict, did not apply in the circumstances of the Gotovina et al. case.³ The Trial Chamber considered the case distinguishable from the EECC situation for two reasons: first, the citizenship of the Serb people fleeing the largely Serb-inhabited Krajina region in Croatia was unclear. Second, even assuming that they were citizens of an enemy state, their forcible displacement was abusive and arbitrary because it was caused by an unlawful attack on civilians and civilian objects and thus not comparable to the procedures followed by the Ethiopian authorities.⁴