No Place Like Home: Development-Induced Displacement - A Crime of Forcible Transfer of Populations

Abstract: This thesis explores how crimes against humanity in general and the crime of forcible transfer of population in particular, cover the most serious situations of development-induced displacement. The focus lies on the legal protection through international criminal law of persons displaced in an unjustified way as a result of development projects, such as the building of dams, roads, and other infrastructure, as well as the exploitation of natural resources in mining and oil projects, to name just a few examples. Although efforts have been made to define crimes against humanity, there is, to date, no universally recognised definition of the crime in customary international law. Hence, the critical lack of consistency in approaching development-induced displacement mirrors a broader jurisprudential debate in the international courts and tribunals regarding the crime of forcible transfer of population. At the heart of the debate is the conceptual problem of identifying the contours of the crime of forcible displacement. However, analysing the relationship between development-induced displacement and crimes against humanity reveals an evolving state of affairs. Although, there is a conspicuous lack of state practice, there is increasingly international recognition that development-induced displacement has many of the same effects upon the displaced as other groups who have been forcibly displaced, such as people who are forced to flee from conflicts or human rights violations. In this thesis this is exemplified by analysing the circumstances surrounding development-induced displacement during the implementation of the Mombasa-Mariakani Road Dualling Project in Kenya. Applying the elements of the crime against humanity to the facts of this case, the forced evictions in Jomvu arguably satisfy the elements of the crime of forcible transfer of population. It is concluded herein that there exist circumstances under which development-induced displacement can equate to other forms of forcible transfer of population. In these situations responsible actors can not rely on an overriding public interests to avoid criminal responsibility.