|Law in Humanitarian Crises Volume I : How Can International Humanitarian Law Be Made Effective in Armed Conflicts? (European Commission Humanitarian Office)|
|International Humanitarian Law and the Law of Refugees and Internally Displaced Persons|
|II. The Inadequacy of International Refugee Law in Situations of Armed Conflict|
The strictly humanitarian task of according protection and assistance to refugees in general and refugees from situations of armed conflicts in particular is to be fulfilled by the international community as a whole. With a view to the ever increasing demand for such measures and the limited resources available to the international community and its members, the States, the role of non-governmental relief organisations is of utmost relevance. But even taking into consideration the enormous amount of human and other resources spent in order to fulfil this task, it is obvious that such resources are limited and, thus, the wasting of such resources must be avoided. Therefore, in particular with a view to the increasing number of reports indicating detrimental competition among the various assistance and relief organisations, ways and means have to be explored to improve co-operation and co-ordination between such institutions.
Another factor to be seriously taken into consideration concerns the question of an improved burden-sharing, both on the global and the regional level. It is suggested that the allegedly increasing phenomenon of "compassion fatigue" and the corresponding difficulties of international organisations and institutions to raise the funds necessary to fulfil their humanitarian task results, at least partially, from growing public concerns in many countries as to an equal sharing of the financial and material burden inevitably resulting from large-scale refugee movements which are characteristic of situations of armed conflicts.
a) Institutional Aspects
Since the task of exploring and implementing means to ensure an improved co-operation between international organisations and other institutions involved in protecting and assisting refugees and to bring about better co-ordination of their respective activities presupposes quite profound expertise and experience as to the institutional aspects of the UN family and their complex relations with non-governmental organisations, this part of the paper will be limited to some short remarks of a more general nature.
Firstly, on the universal level, experts should continue their efforts to identify ways and means to further reduce unnecessary bureaucratic structures within the UN system that are rightly considered to increase the costs of protection and assistance activities and to decrease the efficiency of such actions. It is further suggested that studies be undertaken with a view to further decentralize the decision-making process, in particular within UNHCR, by means of conferring additional powers on regional or sub-regional offices. On the other hand, it is strongly suggested that the current debate as to the establishment of one single UN body dealing with humanitarian affairs be continued; in fact, there seem to be many good reasons justifying the creation of such a body which, with a view to its long-standing pertinent experience, should be UNHCR. It must be emphasized, however, that the institutional structure of that "new" body should reflect the aforesaid need for decentralized decision-making competences.
On the regional level, it is suggested that regional organisations engage themselves further m the task of protecting and assisting refugees, however, in close co-operation and co-ordination with UNHCR or its regional offices if the proposed further decentralization of UNHCR will be effected. In this context, particular efforts should be devoted to successfully re-activate the Bureau of Placement and Education of African Refugees (BPEAR); pertinent discussions should also address the issue of a significant extension of its competences. With a view to the legal and political possibilities now offered by Art. J.1 of the European Union Treaty, it is suggested that the member States of the European Union consider the question of the future role of the European Communities Humanitarian Office which, eventually, could become the institution competent not only to co-ordinate these States' policies as regards assisting refugees outside Europe but could also be vested with a sufficient material capacity to conduct, in co-operation and coordination with UNHCR, an assistance policy of its own.
Finally, as regards a possible improvement of the relationship between governmental and non-governmental organisations, it is suggested that permanent structures be established ensuring close cooperation and co-ordination between all the participants involved in the task of protecting and assisting refugees in general and refugees from armed conflicts in particular. It goes without saying that, due to its longstanding experience and undisputed high reputation, ICRC will continue to play a most important role in this context.
b) International Burden-sharing
Within the framework of this paper, it is not possible to embark upon a thorough discussion as to the various possibilities of an improved sharing of the financial and material burden placed upon the international community as a whole and its members by, in particular, massive influxes of refugees from armed conflicts. Therefore, this section will be limited to some remarks of a more general nature.
aa) First of all, it must be emphasized that such a burden is to be borne, in principle, by all members of the international community as, it is suggested, contributing to alleviate the human suffering of the persons concerned is an obligation that results from the responsibility of the international community for the well-being of all humankind and, thus, applies to all its members; therefore, the need for burden-sharing.
bb) Secondly, the sharing of such a burden must comply with the principles of fairness and equality, i.e. the differing financial and material capacities of the various members of the international community must be taken into account when determining which share of such a burden ought to be borne by each of them. It is suggested that there is universal agreement with this statement as a principle; the intricate problem consists, however, in achieving general consensus as to the different criteria to be applied in order to determine the actual share of every individual member of the international community and the relevance of the respective criteria.
Somewhat simplifying the issue, it may be stated that the international community must not accept that only those States that are situated in close geographic neighbourhood to the country of origin have to bear the burden of receiving large numbers of refugees. This implies that also non-neighbouring States, including those situated in other regions of the world, have to contribute their share. Such contribution may, again somewhat simply, consist of financial and material assistance given to the countries of refuge and those international institutions involved in assisting refugees and countries of refuge, and/or in accepting a certain number of refugees to be resettled in such third countries; as a principle, this statement should meet with general consent. Furthermore, there seems to exist widespread consensus that the amount of such assistance and the number of refugees to be accepted for resettlement ought to reflect the financial and material resources of the various members of the international community; these could be determined upon the basis of the respective gross national product, bearing in mind, however, that specific circumstances in a country might result in the modification of its share of the global expenditures. It is suggested that an international body be entrusted with the task to determine such expenditures on an annual basis. This however, seems only useful if the members of the international community could agree upon methods as to the evaluation of the financial, material and social costs incurred by offering refuge (or possibilities of resettlement) to refugees; it is admitted, however, that at least for the time being it is indeed not very likely that universal acceptance of such methods could be achieved.
Nevertheless, a proposal for a system of international burden-shanng as regards refugees in general and refugees from situations of armed conflict in particular should be made in order to offer some basis for future discussion: in practical terms, such a system should imply that, as a first step, the overall financial amount needed to protect and assist refugees would be determined by an international body which would then, as a second step, also determine each individual State's share of that overall amount from which, as a third step, would be deduced the costs incurred by every State in offering refuge and/or resettlement to refugees in its territory; the remaining sum would then, as a fourth step, be paid into an internationally administered fund which, as a final step, would then offer financial and/or material assistance to those States the expenditures of which for protecting and assisting refugees within their respective territories exceed their individual share as determined by the aforementioned methods. In this context, it would be imperative, however, to ensure mechanisms to prevent financially more resourceful States from (completely) fulfilling their obligation to contribute their share by simply financing other States and international institutions; therefore, it is suggested that, based upon the increasingly held view that refugees be offered refuge or resettlement preferably in States situated in "their" geographical region and in a country with the population of which they share some common features (traditions, culture, life-style, religion, ethnicity, etc.), the States belonging to the same region as the country of origin would be primarily responsible for protecting and assisting the refugees originating therefrom. To give an example: as regards refugees from the former Yugoslavia, the task of offering refuge and/or resettlement to such persons would rest primarily upon the European States whereas resourceful non-European States might be obliged to financially or materially contribute to that task provided that their individual share of the global expenditures for refugees had not yet been "paid" by either receiving refugees from their own region or by assisting countries of refuge therein. On the other hand, as regards, e.g., the African refugee-receiving countries, it is suggested that they would be clearly entitled to receive substantial financial and material support from the aforementioned fund because, as a rule, their share of the global burden would be clearly exceeded by their receiving large numbers of refugees from within their region.
Obviously, the - it is admitted: presently rather unlikely implementation of such a model needs considerable further discussion; suffice to mention as an example the potential conflict between such a system of global burden-sharing and the need for scrupulously observing the very fundamental principle of non-refoulement; here, it would be imperative to ensure that States may not refouler refugees upon the argument that they have already fulfilled "their share" as determined according to the criteria of such a system. Another issue to be solved concerns the institutional structure of such a system or, more precisely, the question of how to ensure that the establishment of such institutions does not result in additional inefficient international bureaucracies.
cc) Thirdly, it is suggested that the international community begins to seriously consider ways and means in order to prevent States from conducting refugee-generating policies and, in particular, to force such States to bear their appropriate share of the burden placed upon the international community by their policies. Assuming that such refugee-generating policies constitute serious violations of international law, such policies might justify the recourse to the legal and political possibilities offered by the emerging rules of state responsibility and actions taken by the UN Security Council under Chapter VII of the UN Charter (including the issue of humanitarian intervention to be addressed elsewhere in this paper). In any case, it is suggested that the establishment of a system of global burden-sharing along the lines presented above might contribute to evolve the political will to efficiently address such violations of international law that result in large-scale movements of refugees.