James Stewart

Undertaking public interest development projects by States often entails displacements of inhabitants in project areas. Though undertaken in the name of public interest, such displacements sometimes involve flagrant violations of international human rights norms. Consequently, the displacees face severely adverse consequences that are disproportionate and identical to those in displacements due to conventionally recognized causes, e.g., conflict situations. By demonstrating the extending conceptual domain of crimes against humanity, this thesis argues that such grave development-induced forcible displacements (DIFD) in peacetime may fall within the Rome Statute’s formulation of the crime against humanity of forcible transfer of population. Therefore, the thesis proposes that the International Criminal Court (ICC) may prosecute the perpetrators of grave DIFDs where elements of that crime are satisfied and the concerned State is unwilling or unable to prosecute such a crime, as envisaged in the Rome Statute. Recently, the ICC’s Office of the Prosecutor (OTP) has expressed its intention to prosecute such crimes under the Rome Statute. The prosecution grave DIFDs in the ICC, as a last resort, is necessary to end the culture of impunity, which is the consequence of a) the ubiquitous sponsorship of these displacements by State actors and consequent unwillingness to prosecute this offence, or b) the lack of national legal mechanisms and consequent inability to prosecute this offence in the national domain.This thesis demonstrates the expanding domain of crimes against humanity through a detailed discussion on its origin and evolution to situate a grave DIFD within the domain of the crime against humanity of forcible transfer of population. Based on that foundation, it further demonstrates that all the elements of this crime under the Rome Statute may be satisfied in a grave DIFD case. Thereby, it argues that prosecution of a grave DIFD as a crime against humanity of forcible transfer of population is theoretically feasible. The thesis’ case study analysis demonstrates that the theoretical feasibility is also underpinned by factual reality. Therefore, the thesis concludes that, to ensure justice, the OTP should deliver on its commitment to prosecuting such crimes, and the international community should collaborate toward that end.

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International criminal law (and in particular the permanent ICC) is experiencing the new and unique context of operation within ongoing contexts. In an attempt to clarify our intentions and purposes in the orchestration of international tribunals, this thesis confronts the role of incapacitation in such a context. This leads to a new interpretation of justice in both the international, as well as the domestic, criminal law spheres. The thesis methodology comprises of a theoretical consideration of jurisprudential theories of domestic and international criminal law theories (predominantly incapacitation, but also deterrence, retribution, rehabilitation, reparation, and restitution), including a comprehension of the deontological/consequentialist discourse. It subsequently explores case-studies of three chosen situations in which international criminal law has operated. These contexts and examined individuals are : the ‘Butchers of Bosnia’ (Radovan Karadžić and Ratko Mladić) in context of the former Yugoslavia; Joseph Kony and the LRA in Northern Uganda; and President Al Bashir in Sudan’s Darfur region. These studies encompass a historical, social, political, and legal perspective of the context and perpetrated crimes. Results of the explorations and theoretical discoveries within this paper lead to a new, expanded concept of incapacitation that brings light to both international and domestic criminal legal theory. Law is portrayed as a carefully wielded weapon which may render culpable, powerful war criminals toothless and alone. ‘Incapacitation’ so called becomes a broader and substantially different concept. This contains a new distinction between ‘direct’ and ‘indirect’ incapacitation – the latter referring to the possibility of law to impact on the actions of the accused before incarceration, for instance by restraining personal liberty, political power, freedom of movement, and overall legitimacy. Recommendations for how this newly defined power can be harnessed by international criminal institutions and actors are explored. There is also a reflection on the potential negative outcomes of international criminal law, which must be taken seriously if the ultimate objective of the law is indeed consequential.

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