Forced Displacement, Prevention from Returning and the Jurisdiction of the International Criminal Court

Abstract

This article argues that international criminal law has not adequately addressed the true dimensions and effects of forced displacement. Often protracted in time, forced displacement extends well beyond the conduct of coercively expelling individuals out of territory from which they are lawfully present. Preventing those forcibly displaced from returning is an essential element of forced displacement as a crime against humanity and as such, it requires the full reprehension of international criminal law. This means that the crime continues for as long as prevention from returning is sustained with significant ramifications on the temporal and territorial jurisdiction of the International Criminal Court. This is particularly so in relation to crimes elements of which are committed in the territory of a state not party to the icc Statute, such as in the situation concerning the alleged deportation of the Rohingya before the icc, and crimes which were initiated before the binding force of the icc Statute. The article concludes that recognition of prevention from returning as a continuing element of forced displacement does not infringe state consent, nor does it compromise the principle of legality which are central to the exercise of icc jurisdiction.