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close this bookLaw in Humanitarian Crises Volume I : How Can International Humanitarian Law Be Made Effective in Armed Conflicts? (European Commission Humanitarian Office)
close this folderInternational Humanitarian Law and the Law of Refugees and Internally Displaced Persons
close this folderIII. The Inadequacy of International Law in Respect of Internally Displaced Persons
View the document(introduction...)
View the document1. Existing Norms of International Law Applying to Internally Displaced Persons
View the document2. The Lacunae of International Law in Respect of Internally Displaced Persons
View the document3. Possible Ways of Improving the Legal Situation of Internally Displaced Persons
View the document4. The Need for Further Consideration of International Action in Favour of Internally Displaced Persons

2. The Lacunae of International Law in Respect of Internally Displaced Persons

It results from the foregoing that international law does provide for a system of rules to protect persons from forcible displacement, persecution and other gross violations of fundamental human rights within the context of internal armed conflicts. However, reality shows that this system is not efficiently working and does not serve to prevent the causes of displacement. This fact results from the incomplete nature of this protection machinery, in particular the deficiencies of the international legal system as regards the implementation and enforcement of States' obligations under human rights and humanitarian law. An additional factor may be the absence of international norms specifically addressing the needs of internally displaced persons.

a) The Absence of Effective Means for Implementing the Existing Body of International Law With Regard to Internally Displaced

Persons

aa) One aspect of the incompleteness of this protection machinery stems from the fact that not all states are members of the relevant international instruments. This applies in particular to the 1966 International Covenant and Protocol II, whereas the 1949 Geneva Conventions are in force in virtually all countries.

This leads to the question of whether and to what extent the provisions of those instruments which lack quasi-universal membership may, however, be considered to represent customary international law, and with regard to some rights even ius cogens, thereby binding upon all States irrespective of whether they are in fact parties to the relevant instrument. This question cannot be adequately dealt with in the framework of this paper; it is suggested, however, that such fundamental human rights such as the right to life, freedom from torture, right to a fair trial, the prohibition of discrimination based upon racial and religious grounds (and, correspondingly, persecution based upon ethnic grounds), and the obligations specified in common Art. 3 have the legal status of customary international law.

Another aspect of the incompleteness of the existing protection machinery concerns the fact that the 1949 Geneva Conventions and their Additional Protocols are not applicable to civilians during certain internal conflict situations: if the internal conflict is not to be considered as an internal armed conflict under common Art. 3 or Protocol II, these rules are inapplicable. Consequently, governments may be tempted to label a conflict a riot or an isolated or sporadic act of violence which would, therefore, constitute only an internal disturbance or tension rather than an internal armed conflict, and thereby avoid the applicability of common Art. 3 and the provisions of Protocol II; this situation is aggravated by the fact that there is no mechanism for determining, with binding force upon the parties concerned, whether a situation of internal conflict qualifies as an internal armed conflict in the sense of international humanitarian law.

bb) In addition to these shortcomings of the existing protection system, there is, as in all fields of international law, the issue of implementation or enforcement of a State's obligations. Notwithstanding the fact that the human rights instruments relevant in situations of imminent or ongoing internal displacements do provide for mechanisms to protect the individuals concerned, it is suggested that such mechanisms, simply due to their structure, fail to offer prompt relief for any internally displaced person or to avert the root causes resulting m a person becoming internally displaced.

Furthermore, these mechanisms are not structured in such a way as to allow the international community to force a State to remedy situations of, or resulting in, internal displacements. It is a well known deficiency of, in particular universal, human rights law that even if the relevant instrument provides for a complaints system available to individuals or other States, the subsequent findings of the bodies called upon to deal with such complaints are, from a legal point of view, of a non-binding character. The efficiency of these systems is, moreover, considerably limited by the very slow and time-consuming character of the procedures to be followed which prevents them from constituting an effective mechanism to avert or to remedy situations of internal displacement.

Similar considerations apply with regard to international humanitarian law: neither the 1949 Geneva Conventions nor Protocol II provide for any mandatory mechanism for bringing violations of the humanitarian law rules laid down in common Art. 3 and Protocol II to the attention of the international community or for enforcing the obligations resulting from these instruments. It is, moreover, a well known deficiency of international humanitarian law that, whereas the International Committee of the Red Cross or any other governmental or non-governmental organisation may offer their services to victims of internal armed conflicts, there is no provision which entitles such bodies to provide assistance and protection to civilians if the State concerned refuses to allow their officers access to these victims.

These facts link the issue of internal displacement to the general problem of determining how the international community should react to (widespread and systematic) violations of international law. Doubtless this problem constitutes one of the - if not the - crucial issues to be addressed by practitioners and scholars of international law alike in the last decade of this century; it relates, inter alia, to the future role of the UN system, in particular the Security Council, in making use of the means offered by Chapter VII of the UN Charter, the legal and political possibilities offered by the emerging rules of state responsibility, the future role of the institute of humanitarian intervention,73 and to the legal questions related to the concept of obligations erga omnes; all these aspects of current international law raise intricate questions, in particular because the present practice of the international community and their competent organs is characterized by a most deplorable selective and partial approach which has severely damaged all expectations for the establishment of a "new world order" based upon universal observance and enforcement of the rule of international law as it seemed to become possible subsequent to the end of the Cold War.

b) The Absence of International Norms Specifically Addressing the Needs of Internally Displaced Persons

An additional factor of, however, considerable importance is the absence of any international instrument specifically addressing the needs of internally displaced persons. This relates to the striking contrast between the level of assistance and protection available to externally displaced persons as refugees (or, more precisely, persons entitled to temporary refuge), and internally displaced persons. As stated above, international refugee law even in its broad sense, i.e. also encompassing persons who have fled from situations of armed conflict, does not apply to internally displaced persons although their "need of protection" is more or less identical to that of refugees from situations of armed conflict. Furthermore, UNHCR leads and co-ordinates quite a sophisticated international legal and institutional framework providing for assistance and protection to refugees whereas internally displaced persons have only a limited protection under human rights and humanitarian law and receive only ad hoc assistance and protection from States and international organisations which, moreover, must be organized and coordinated in each situation of internal displacement; this holds true notwithstanding recent efforts at the UN level and decisions aiming at an even more active involvement of UNHCR in remedying the plight of internally displaced persons.