Deportation of Civilians as a War Crime under Customary Law
Asbjørn Eide's strong interest in human rights, humanitarian law, and their interrelationship is demonstrated not only by his writings but also by his organizing in Oslo ( 1987), and co-organizing in Turku\ Abo ( 1990), conferences to develop and to promote the acceptance by the international community of a declaration on internal strife (the Turku Declaration of Minimum Humanitarian Standards). It is, therefore, appropriate, in a collection of essays in his honour, to focus on an important humanitarian law question, namely, whether deportations of civilians by an occupying power in the context of an armed conflict of an international character constitute violations of customary international law, or war crimes. Although deportations carried out in violation of Article 49 of the Fourth Geneva Convention1 constitute grave breaches of the Convention (Article 147), the question whether that prohibition is not only conventional but customary in nature is important both for those states that are not as yet parties to the Geneva Conventions and for those that maintain that the Convention qua convention is not applicable in the territories they occupy.
The object of this article is to demonstrate, largely through an analysis of the Nuremberg jurisprudence, that deportations from occupied territories had been prohibited under customary international law already prior to the adoption of the Geneva Conventions. Since the adoption of the Fourth Geneva Convention on August 12, 1949 there have been many expressions of support for its customary law nature (opinio juris). However, the practice of states demonstrating the Convention's customary law character has been limited. It is for this reason that I shall focus on the situation preceding the adoption of the Convention. Although the prohibition of deportations by a number of major human rights instruments is of relevance to the issue under consideration, the article will be limited to questions of humanitarian law.
Deportation of civilians was already prohibited by Article 23 of Lieber's Code, which states that '[p]rivate citizens are no longer murdered,____________________