Creating Accountability: Improving Responses to Forced Displacement Crimes

According to the United Nations Refugee Agency, the number of people forcibly displaced worldwide was 79.5 million at the end of 2019 and most were forced to migrate due to conflict, persecution, human rights violations and serious disturbances to public order. About 45.7 million people are displaced within their own country while others have fled, often to neighbouring and developing countries. Approximately 40 per cent of the world’s displaced peoples are children.

“Growth in these numbers is driven in part by states that deliberately displace their own populations in contravention of international law,” A/Prof Orchard said, adding that his project, funded by an Australian Research Council Discovery Project grant of $181,755 over three years, is examining the effectiveness of a range of current efforts to hold those responsible for forcing them to flee and seek safety elsewhere accountable.

“The project will assess how effective various mechanisms are at holding states and individuals to account for deliberate displacement through a range of case studies and examine future options for improving state accountability for forced displacement crimes.”

A/Prof Orchard said he is examining seven accountability mechanisms that already exist at the international, regional, and domestic levels and that can be used to ensure state and individual perpetrators are held accountable for forced displacement crimes

“This is a critical issue, and the independent World Refugee Council has recently recommended that ‘governments of countries hosting refugees [should] pursue criminal charges against political leaders who deport or forcibly expel their citizens or habitual residents from their territory…’,” A/Prof Orchard explained.

Accountability mechanisms

Mechanisms at the international level include the International Criminal Court, the UN Human Rights Council’s Universal Periodic Review, and the Responsibility to Protect doctrine (R2P), which establishes that states have a responsibility to not engage in genocide, war crimes, crimes against humanity, and ethnic cleansing; to assist others in fulfilling this responsibility; and – at the extreme – that the UN Security Council can engage in military interventions when a state is manifestly failing to uphold their responsibilities.

At the regional level, there is the African Union’s Kampala Convention for the Protection and Assistance of Internally Displaced Persons in Africa and the human rights mechanisms of the Organization of American States.

At the domestic level there is universal jurisdiction (national courts may prosecute individuals for serious crimes against international law) as well as the Magnitsky Acts, which have been introduced in a number of countries, including the United States, United Kingdom, and Canada, and allow states to impose sanctions against people responsible for corruption or gross human rights abuses.

Each of these mechanisms has contributed to progress in many ways but the overall problem of forced displacement persists and perpetrators of violence and war crimes aren’t consistently held accountable.

“For example, forced deportations across state borders and forcible transfers within a state can constitute war crimes and crimes against humanity under the International Criminal Court (ICC)’s Rome Statute. And both are violations of the R2P doctrine. In spite of this, both individual and state-based accountability for the commission of forced displacement crimes by the ICC and the R2P doctrine remains limited,” A/Prof Orchard explained. “But the ICC has so far only convicted one person –Bosco Ntaganda- of forcible transfers, though two other trials will shortly be underway.”

Influencing foreign policy

A/Prof Orchard also noted that this project directly helps support Australia’s foreign policy. “The government has made a number of core commitments to improve the response to refugees and internally displaced persons globally and to protect people affected by conflict. The findings of this project will help Australia’s responses to the challenge of forced displacement and help to also support international policy at the global level. Most importantly, the project has the goal of seeking to avert future forced migrant movements by holding the states that cause them to account.