Unlawful Population Transfer and the Limits of International Criminal Law

This article examines the draft Declaration on Population Transfer and Implantation of Settlers developed within the framework of the UN Sub-Committee on the Prevention of Discrimination and the Protection of Minorities. The draft declaration provides for the criminalisation of involuntary population transfer. This article argues that the Declaration will be ineffective in practice and will introduce inconsistency and confusion into the law. However, the attempt to introduce a crime of unlawful population transfer reflects a lacuna in existing law. And yet, this gap is unlikely to be filled by extending existing international crimes to cover ethnic cleansing. This is because existing crimes do not address the international community’s sense of what it is that makes ethnic cleansing so heinous. Thus some action needs to be taken. However, this article argues that the ability of the international community to proceed appropriately is stymied by the fact that international criminal lawyers lack the basic tools and the concepts by which to categorise different types of harm.