A/HRC/43/67
a tunnel excavated under Palestinians’ homes at the initiative of a settler organization, was
inaugurated.29 At least five Palestinian families were reported to have left their houses owing
to the damage caused during excavation of the tunnel.30 On 3 June 2019, the Israeli National
Infrastructure Committee rejected a series of objections against a controversial plan to
construct a cable car connecting West Jerusalem to the Kerem Compound, and submitted the
plan to the Government for approval.31 Building the cable car over houses in Silwan will
involve further confiscation and demolition of Palestinian property, and will intensify the
coercive environment.
Coercive environment resulting from settlement policies and
consequent risk of forcible transfer
IV.
A.
Prohibition of forcible transfer of protected persons
37.
International humanitarian law prohibits “individual or mass forcible transfers” of
protected persons within an occupied territory, as well as their deportations outside of the
occupied territory, regardless of motives, although an occupying Power may undertake the
total or partial evacuation of a given area if the security of the population or imperative
military reasons so demand.32 Unlawful transfer constitutes a grave breach of article 147 of
the Fourth Geneva Convention, thus amounting to a war crime. 33 Forcible transfer may also
entail the violation of other provisions of international humanitarian law (for example, the
prohibition of the destruction of private and public property), and may involve violations of
international human rights law, such as the right to adequate housing, the right to family life
and the right to freedom of movement.
38.
According to the jurisprudence of international criminal tribunals, the prohibition of
forcible transfer, which aims at preventing the forced removal of protected persons,34 is to be
interpreted broadly, taking into account the vulnerability of the civilian population. Forcible
transfer does not necessarily require the direct use of physical force, as it may result from
indirect measures creating a coercive environment, where people are forced to leave against
their genuine will.35 Forcible transfer can stem from “the threat of force or coercion, such as
that caused by fear of violence, duress, detention, psychological oppression or abuse of power
or by taking advantage of a coercive environment”. 36 The International Criminal Tribunal for
the former Yugoslavia has exemplified measures, such as “dismissals from employment,
house searches, and the cutting off of water, electricity, and telephone services” and
29
30
31
32
33
34
35
36
8
Nir Hasson, “U.S. Envoys Break Open Tunnel Running Under Palestinian Village in East Jerusalem”,
Haaretz, 30 June 2019.
https://peacenow.org.il/en/the-disputed-tunnel-in-silwan-inaugurated-with-american-support.
https://alt-arch.org/en/jm_cable_car_en/.
Fourth Geneva Convention, art. 49, and Rule 129 of Customary International Humanitarian Law,
International Committee of the Red Cross.
See also Rome Statute, art. 8 (2) (b) (viii).
See PCNICC/2000/1/Add.2. According to the International Criminal Tribunal for the former
Yugoslavia, the legal values protected by deportation and forcible transfer are the “right of the victim
to stay in his or her home and community and the right not to be deprived of his or her property by
being forcibly displaced to another location”. Therefore, “the location to which the victim is forcibly
displaced is sufficiently distant if the victim is prevented from effectively exercising these rights”.
International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Simić et al., Case No. IT-959-T, “Judgement”, 17 October 2003, para. 130.
International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Naletilić (aka “Tuta”) and
Martinović (aka “Stela”), Case No. IT-98-34-T, Trial Chamber, 2003, para. 519; Prosecutor v.
Krajišnik, Case No. IT-00-39-T, Trial Chamber, 2006, para. 724.
PCNICC/2000/1/Add. 2, Article 6 €, para. 1, footnote 5. See also references made extensively in the
case law of the International Criminal Tribunal for the former Yugoslavia, such as Prosecutor v.
Krajišnik, Case No. IT-00-39-T, Appeal Chamber, 2009, para. 319; Prosecutor v. Stakić, Case No.
IT-97-24-T, Appeals Chamber, 2006, para. 281; and Prosecutor v. Krnojelac, Case No. IT-97-25,
Appeals Chamber, 2003, paras. 229 and 233.
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