[TimorLesteStudies] Article: Unpopular Population Transfers: Defining Violations of and Remedies Under Geneva Convention Article 49(6)

[Bu Wilson]

Brusca, Dana, Unpopular Population Transfers: Defining Violations of and
 Remedies Under Geneva Convention Article 49(6) (June 16, 2010). 

Available at SSRN: http://ssrn.com/abstract=1865805


Abstract: 
    



Pursuant to Article 49(6) of the Fourth Geneva Convention: an “Occupying
 Power shall not deport or transfer parts of its own civilian population
 into the territory it occupies.”  Adopted in 1949, Article 49(6) has no
 parallel provision in the Hague Convention of 1907, and the prohibition
 against civilian transfers is not typically considered a part of 
customary international law.  As a result of its relative newness, there
 have been few occasions to interpret exactly how the provision applies.
 It is unclear, for example, whether a State has violated Article 49(6) 
if its civilians settle in an occupied territory “voluntarily.”

In
 an effort to better understand Article 49(6) and to move toward a more 
consistent application of its prohibition, this Essay looks at the 
experience and treatment of civilian settlers in the context of several 
other arguably belligerent occupations (i.e., situations that were or 
would today be governed by occupation rules). Each of the conflicts 
explored in Parts I through IV - which examine the transition of East Timor
 from Indonesian control to independence, the continuing negotiations 
between Morocco and the Sahrawi people of the Western Sahara, the 
ongoing peace talks between Turkish and Southern Cyprus, and the 
break-up of the Baltic States toward the end of Soviet power - involves 
the transfer of settlers into a territory that was not previously 
independent and that was controlled by an external foreign power in an 
arguably illegitimate way.

The similar trajectories of these 
conflicts suggests that the ICJ was correct in assuming a state’s 
material “encouragement” of civilian settlers is enough to bring the 
state within the purview of Article 49(6). However, neither 
international political bodies nor the new governments of previously 
occupied territories have ever embraced forcible removal of illegally 
transferred civilian settlers. To the contrary, history suggests that 
such settlers often get a voice in deciding the territory’s fate and, in
 most circumstances, have a right to remain in the area after occupation
 has ended.  Despite the black and white rhetoric of the ICJ’s 
reparation principle, history shows that any remedy provided under 
Article 49(6) must in practice carefully balance the rights of persons 
harmed by the occupying power, the comparative innocence of settlers 
transferred into an occupied territory, and the feasibility of 
implementation in any particular case before it will be deemed 
acceptable to the U.N.’s governing bodies and the international 
community writ large.  

--
Dr Bu V.E. Wilson
T: Australia +61  0  407 087 086
T: Timor-Leste + 670 744 0011
E: buvewilson at gmail.com

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://mailman.anu.edu.au/pipermail/easttimorstudies/attachments/20110809/a21a111b/attachment.html