The legal nature of forced return of refugees in international law

Abstract

Non-refoulement of refugees in international law is that no signatory state may expel or return a refugee by force in any way to the borders of a territory where his life or freedom might be endangered for racial, religious or national reasons or because of his membership in a particular social group or political opinion. In order to understand the comprehensive concept of forced return, it is necessary to determine the legal nature of the forced return of refugees in terms of whether it falls under any title of international crimes, and is it a crime of genocide? Or a crime against humanity? Or a war crime? This crime is considered a crime against humanity, a crime of genocide, and a war crime, as stated in the agreements, regulations and charters of international courts, including the Rome Statute. The concept of an “underlying act” that amounts to persecution undoubtedly applies to refoulement, as the right to freedom of movement and residence in a place is in fact protected under international law. The prohibition of refoulement aims to ensure that individuals have the right and aspiration to live in their communities and homes without external interference. The forced nature of displacement and forced uprooting of the population of a territory entails criminal responsibility for the perpetrator. The specificity of the crime of persecution lies in the fact that individuals are discriminated against because they are members of a targeted group, and that persons suspected of being members of targeted groups are also included as potential victims of discrimination even if the suspicion proves to be inaccurate. This would seem to suggest that persecution may exist even without an actual discriminatory act against a member of the targeted group; instead, the discriminatory intent in the mind of the perpetrator must be considered as a relevant issue. Deportation and forcible transfer are essentially war crimes and crimes against humanity. One of the main differences between describing them as war crimes rather than crimes against humanity is that the deportation must be part of a widespread and systematic attack against a civilian population, and there is no need to prove the existence of an armed conflict. Whether the crime of deportation is described as another type of crime, the elements that constitute deportation and forcible transfer as crimes under international law are not very different. The core acts that constitute the crime of persecution can often be crimes on their own – if murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts are committed for discriminatory reasons, they amount to persecution. Furthermore, deportation and forcible transfer as acts of persecution are not different from the crimes themselves in terms of prosecution. 8. Deportation and forcible transfer entail the forced displacement of persons, without grounds permitted by international law, from the area in which they are lawfully present. The idea that people must be lawfully present in the area from which they are forcibly transferred or deported has not been carefully scrutinized by international criminal courts.