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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)
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Open this folder and view contentsThe Laws of War: Problems of Implementation in Contemporary Conflicts
Open this folder and view contentsThe Implementation of International Humanitarian Law in the Framework of United Nations Peace-keeping Operations
Open this folder and view contentsInternational Humanitarian Law and the Law of Refugees and Internally Displaced Persons
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European Commission Humanitarian Office

Volume I

How can international humanitarian law be made effective in armed conflicts?

The views expressed in this book are not those of the European Commission.
Le contenu de cet ouvrage ne refl pas l'opinion de la Commission europne.

Cataloguing data can be found at the end of this publication
Une fiche bibliographique figure a fin de l'ouvrage.

Luxembourg: Office for Official Publications of the Euro,oean Communities, 1995
Luxembourg: Office des publications officielles des Communauteuropnes, 1995

Vol. I: ISBN 92-827-5338-7
Vols. I to/I: ISBN 92-827-5337-9

© ECSC-EC-EAEC, Brussels · Luxembourg, 1995
© CECA-CE-CEEA, Bruxelles · Luxembourg, 1995

Printed In Portugal


During the past 50 years the International Community has rarely had to deal with so many armed conflicts at the same time. States, international organizations and non-governmental organizations are engaged in alleviating the suffering of victims of those conflicts - most of which are civil wars. Although humanitarian assistance is provided on a large scale by different humanitarian organizations and individuals, today's wars still have an enormous and growing effect on those who are not fighting, which has become obvious to the global public by intensive media coverage. There are two reasons for this tendency. Despite the development of new conventional weaponry, which is easily available and accessible in contemporary conflicts, it is the deliberate attack on civilians which is the main cause for the great number of victims in civil wars. Secondly, due to the political changes in the state community after the end of the Cold War, new types of conflicts have emerged in which the innocent civilian is a frequent target of those who fight.

It is one of the main objectives of international humanitarian law to protect the victims of armed conflicts. The four Geneva Conventions of 1949 and the two Additional Protocols of 1977 are international treaties stipulating the basic rules as well as detailed regulations on the protection of the wounded and sick, prisoners of war and civilians. These rules have been carefully developed by the state community after the Second World War, taking into account experiences from all major conflicts. The rules set forth by these treaties provide protection against wilful killing, torture and other inhuman practices. The International Court of Justice has pointed out in its famous decision in the Nicaragua case, the basic protective rules as embodied in common Article 3 of the Geneva Conventions are valid in war and peace. Comparing the present practice in armed conflicts with the legal framework of combatant conduct in respect of innocent civilians it is quite clear that the implementation of the pre-existing norms of international humanitarian law is the key precondition for the protection of victims today.

1990 marked a turning point, as Parties to armed conflicts have since been called upon by the International Community to implement the basic rules of international humanitarian law. However, in many instances there was a lack of political will of those fighting in contemporary conflicts, as proven by the reports on murder and torture of victims. Thus the system of implementation of international humanitarian law still needs to be improved in order to foster the political will of parties to an armed conflict towards strict observance of its rules. What is the practice of implementation, what are the main obstacles to improvement, in which areas is it most important and what are the new mechanisms supporting implementation? These are the keytopics of the present international debate.

The present volume meets the need for a more thorough international legal reflection on the question of implementation and recent trends in establishing new implementing mechanisms. The following collection of essays addresses a number of the most important legal aspects, including the practice of the recent past, basic problems of international law concerning the implementation of humanitarian rules and observations on the foundations and legal problems of the new mechanisms. Adam Roberts' essay reviews the reaction of the international community to the implementation problems in specific conflicts such as those in Somalia and Rwanda. Based on his evaluation of this practice, Roberts outlines the difficulties of ensuring compliance with the rules of humanitarian law and how the international system should be further developed to allow for better implementation. The essay by Paolo Benvenuti analyses the implementation of international humanitarian law in UN peace-keeping operations. It includes a detailed discussion of the implementation problems relating to UN forces authorized to carry out enforcement actions. He examines in depth the implementation of international humanitarian law in the so-called "new peace-keeping operations" and the relevance of recent lawmaking in the UN in respect of the status of UN and associated personnel in such operations. Flavia Lattanzi discusses the repression of grave breaches of international humanitarian law through national courts, international courts and tribunals. She also comments on the international legal problems relating to the recent establishment of the UN tribunals dealing with war crimes and crimes against humanity in the former Yugoslavia and Rwanda.

Toni Pfanner follows with a comprehensive review of the implementation framework in which the ICRC operates. He examines both traditional and modern implementation mechanisms in the light of recent state practice and developments in international law His essay involves an analysis of the main impediments to the implementation of international humanitarian law and how to minimize their effects from an ICRC perspective. In the fifth article of this volume, Rainer Hofmann outlines the inadequacy of present international law concerning the protection of refugees and internally displaced persons. The author discusses the need to improve the substantive rights of refugees in situations of armed conflict as well as the lacunae of international law in respect of internally displaced persons. He argues in favour of a comprehensive approach which is aimed at overcoming the existing differentiation in international law concerning the fields of application of the relevant norms.

The sixth and last contribution to the book by Adama Dieng deals with the responsibility of states in repressing grave breaches of international humanitarian law. His contribution evaluates recent state practice attempting to prosecute and punish individuals for grave breaches of international humanitarian law before national courts and international tribunals. He examines the question of whether human rights mechanisms can be used for the implementation of international humanitarian law. Adama Dieng concludes his observations by discussing the present development towards the establishment of new mechanisms such as the International Criminal Court and an Economic Security Council.

As the co-ordinator of this book, I would like to express my appreciation for the hard work undertaken by the members of the Institute for International Law of Peace and Armed Conflict (IFHV) of the Ruhr-UniversitBochum. My special thanks go to Mr. Ralph Czarnzecki and Mr. Guido Hesterberg for their invaluable and tireless efforts in the editing process.

Horst Fischer
Bochum, October 1995

I. Introduction

In the 1980s and 1990s there has been an unprecedented degree of international attention to the application of the laws of war to contemporary conflicts. This body of humanitarian rules has been a major consideration in much international diplomacy, and has had considerable impact in some wars and military occupations. However, as in wars earlier in this century, implementation of the laws of war has been uneven. Basic norms have been violated in wars both international and internal. Horrific events in the former Yugoslavia since 1991, and in Rwanda in 1994, have impelled the United Nations Security Council to establish international tribunals in the hope of thereby restoring the effectiveness of rules after they have been flouted. The many efforts by the UN and other bodies to act against violations have involved a daunting array of problems, many of which had been only dimly foreseen.

Questions about implementation addressed in this study include: What are the formal provisions and mechanisms by which the laws of war are supposed to be implemented, and why have they been relatively little used? In practice, what other mechanisms of implementation have been used? How effective has been the increased involvement of the United Nations Security Council since the early 1980s in addressing violations of the laws of war? What have been the particular problems of implementation in some of the major armed conflicts around the world in the 1980s and 1990s? What has been the role of the International Court of Justice as regards implementation? Why have diplomatic efforts calling for observance of existing rules so often been unsuccessful? Do belligerent reprisals have a continuing place in ensuring observance of rules? Are other uses of force, not specifically designated as reprisals, important as a means of countering violations? What is the place of individual criminal prosecutions, and of demands for reparations from states responsible for major violations? How can the international community respond to the demands for amnesty which inevitably accompany peace negotiations? What conclusions can be drawn about how the question of implementation could be pursued?

States, by becoming parties to the 1949 Geneva Conventions, have undertaken "to respect and to ensure respect " for the main conventions on the laws of war. What exactly does this obligation imply, and how is it to be interpreted in today's circumstances? The difficulty that members of the international community face in attempting to ensure that rules are implemented, and to restore their effectiveness after they have been violated, should not be underestimated. The international system differs from domestic politics precisely in the fact that there is no strong central authority capable of enforcing the full range of rules that states and nonstate bodies are obliged to follow. On the international level, despite the increased role of international organizations including the UN, authority is still decentralized. It follows that international structures, organizations and rules have to be based in large measure on consensus, and rules have to be implemented largely through the states that are the main members of international society. When states (or, as in some recent cases, forces trying to establish a state) do not observe the rules, it is hard to make them change course. This problem is particularly severe so far as implementation of the laws of war is concerned.

A complicating factor in the application of the laws of war is that the majority of wars in the post-1945 world have failed to fall neatly into the category of "international armed conflict" - the only category of war to which the main body of the laws of war is formally and indisputably applicable. Most conflicts have been civil wars, or at least have contained a major element of such war. The application of the laws of war to civil wars raises both a legal and a practical problem. The legal problem is that governments have usually been reluctant to create or sign up to a body of law which would bind their freedom of action so far as dealing with armed rebellion is concerned: thus the treaty-based rules formally applicable in such conflicts have been inadequate, though there is now a tendency at the UN and elsewhere to view a wide range of humanitarian rules as applicable, as the establishment in 1994 of the International Tribunal for Rwanda confirmed. The practical problem is that civil wars are notoriously bitter, for several reasons: each side is likely to deny the legitimacy of the other, training in the laws of war may be limited, the neat distinction between soldier and civilian frequently breaks down and the scope for a compromise settlement of the war is usually slight. Trying to secure even a minimal level of observance of rules is peculiarly difficult in such circumstances.

When a civil war is internationalized, in the sense of involving foreign troops on one or both sides, there is a much stronger argument that the whole body of the laws of war is formally in force, especially as concerns the conduct of the outside forces involved. Even then, however, application may involve practical difficulties arising from the special characteristics of civil wars.

A related problem is how to ensure that the rules themselves are sufficiently realistic that they are capable of being applied by belligerents in the peculiarly difficult circumstances of war, that they reflect a real consensus, and that there is a serious intention to observe them. The progressive development and increasing complexity of the rules, especially in the past two decades, may have gone so far that the laws of war have lost meaningful contact with the thinking and actions of at least some states, armed forces, and non-state entities. Further, the manner in which the law is discussed and advocated may have caused problems. Rules which are not properly incorporated in the training and mentality of fighting forces obviously will not work.

Implementation can assume a variety of forms, of which war crimes trials are only one. The term "implementation" is used here to refer to the many ways in which states generally (including belligerents in an armed conflict) apply, and sometimes fail to apply, the international rules applicable in armed conflict. They can be grouped under three headings:

1. In peacetime: training, education and planning, including within armed forces.

2. In time of occupations and armed conflicts: the codes of conduct, rules, commands and actions of the governments and forces involved; and what one belligerent does, during or after a conflict, in response to another's alleged violations of the rules.

3. The actions of third-party states (i.e. those not directly involved in a conflict), non-governmental bodies, and international organizations, aimed at trying to secure compliance by belligerents, including when belligerents have committed major violations of the rules.

In this study I have generally used the term "laws of war". This refers to those streams of international law (especially the various Hague and Geneva Conventions) specifically intended to apply in armed conflicts. In some eyes the term "laws of war" is old-fashioned. However, it has merits. It accurately reflects the well-established Latin term for the subject of this enquiry, ius in bello; and it is brief and easily understood. It has two modern equivalents, both longer. The term "law applicable in armed conflicts" is unexceptionable, but adds little. "International humanitarian law" (IHL), often with the suffix "applicable in armed conflicts", has become the accepted term in most diplomatic and United Nations frameworks. However, it has the defect that it seems to suggest that humanitarianism (rather than interest or professional standards) is the main foundation on which the law is built, and thus invites a degree of criticism from academics, warriors and others who subscribe to a "realist" view of international relations. However "IHL" also has the merit that it is widely seen as encompassing relevant parts of the international law of human rights. Preference for the term " laws of war " does not imply a down-playing of the significance of human rights provisions, whose merging with the laws of war is one of the most significant developments in this field in recent decades.

In the conflicts of the 1980s and 1990s, the actual practice of belligerents has often fallen far short of what might have been expected granted the important developments in treaty law, the high level of formal adherence to treaties, and the unprecedented involvement of the United Nations (especially the Security Council) in matters relating to implementation of the laws of war. Gross violations of well established rules have occurred in the Iran-Iraq War, in the Iraqi occupation of Kuwait in 1990-91, in the former Yugoslavia since 1991, and in many other conflicts both international and internal. In most cases these violations attracted much diplomatic attention, but no effective response. Those engaging in illegal and inhumane practices could and did exhibit contempt not merely for the laws of war but also for those who sought so ineffectually to uphold them.

The problem of implementation has increasingly come to be seen as the central problem of the laws of war. Sir Frank Berman, Legal Adviser to the UK Foreign and Commonwealth Office, has said:

"It seems to many that the problem is not to discover what the law is, or how to apply it to the particular case, or even whether the existing rule is 'satisfactory' or not, but rather how to secure or compel compliance with the law at all".

A natural response to a pattern of violations of the laws of war is to call for new systems of implementation and enforcement. However, since at least 1949, treaties on the laws of war have included a range of formal provisions on implementation generally, including penal sanctions of various kinds; and there have been numerous efforts, including within a UN framework and also by governmental and non-governmental bodies, to reinforce these mechanisms of enforcement and to develop new ones. Why such provisions and efforts have had relatively little impact is the underlying question which needs to be explored.

If a high level of formal adherence by states to the major treaties were a guarantee of enforcement, there should be little problem. At mid 1995 the four 1949 Geneva Conventions had 185 parties - the same overall total as that of UN members, though the two lists were not quite identical. The two 1977 Additional Protocols had gained a respectable number of parties: Protocol I had 138 states parties, and Protocol II had 128.

Unfortunately, the question of how the laws of war are, or are not, implemented has not been the subject of a vigorous tradition of thought. Lawyers tend to think in terms of enforcement through legal processes after a violation, when implementation may take many other forms. Indeed, its most important aspect is implementation through education and training in well-organized armed forces. Much writing on implementation, including that published in law journals, has been narrowly legal or prescriptive in character. There has too often been a formalistic assumption that the main modes of implementation are, or ought to be, those laid down in the conventions. The problems faced by soldiers and decision-makers in armed conflicts have not been explored in depth. It has been assumed - understandably, but perhaps too easily that the main form of analysis involved is judging the behaviour of belligerents by a legal yardstick, when there is also a case for judging the laws of war by the harsh test of how they operate, or fail to operate, in the circumstances for which they were designed.

Analysis of the question of implementation can benefit from a more descriptive approach, looking systematically at the many difficulties, and opportunities, that have been encountered in applying the laws of war. Such an approach employs the methodologies not only of law but also of history, politics, international relations, and strategic studies. The major single-author work along such lines, Geoffrey Best's examination of whether international humanitarian law has worked well or not since the Second World War, reaches pessimistic conclusions. He draws a picture of a body of law with an impressive and admirable superstructure built on insecure foundations, of which perhaps the shakiest is the central, critical distinction between the soldier and the civilian. The law's impact has been much less than had been hoped. Sometimes, indeed, it has been little more than an instrument of propaganda warfare.

This study is based on six underlying propositions:

1. Difficulties in securing compliance are not unique to the laws of war, but arise also in many aspects both of international law more generally, and of the domestic law of states.

2. Implementation of rules of conduct in war is usually best achieved when parties to a conflict have a political and military culture, and a perception of their own interests, which is broadly favourable to observance. Implementation is therefore largely a matter of proper preparation in peacetime. States, their armed forces, their governments, and their legislatures, are among the most important entities for implementing the laws of war. Securing compliance by states (or non-state entities) after there have been violations of the rules is just one small part of the much broader process of implementation.

3. Punishing transgression of norms is particularly complex in cases in which offences are committed in what is perceived as a public cause, in which large numbers of people are implicated in different ways in the commission of the offences, and in which the state or non-state entity in whose name the offences were committed continues to exist and to protect its own citizens.

4. States which are neutral in a particular conflict, or which do not wish to extend or deepen a limited belligerent role, may be particularly reluctant to take measures to punish war crimes by a belligerent.

5. The actual processes by which compliance with law is induced are by no means the same thing as the formal treaty provisions to that end. Institutions whose role is outlined in the conventions, such as Protecting Powers and the International Fact-finding Commission, have hardly had any role in implementation. In practice, when there are legal procedures, they often assume a different character from that envisaged in the conventions: for example, commissions of inquiry rather than trials. In some extreme cases, it may be only possible to induce compliance with the law by making credible threats of reprisals against an adversary, or by major states showing a willingness to intervene militarily to uphold international standards - courses which manifestly involve numerous risks.

6. The public demand in many countries for more effective implementation of international norms regarding warfare will not go away.


This section looks at the formal provisions regarding implementation as set out in the conventions from 1899 to 1981, and glances briefly at aspects of the wider range of pressures and mechanisms which may in fact be involved in processes of implementation. When in an actual armed conflict the laws of war do play a part in shaping the decisions made by belligerents, they may do so for complex reasons. Action in consonance with the laws of war may owe much to a wide range of political, military, diplomatic and ethical factors: these may include a fear of military reprisals, and an anxiety to project a reasonable image with the domestic public and with actual or potential allies.

The 1992 German tri-service military manual lists thirteen factors, mainly treaty-based, that "can induce the parties to a conflict to counteract disobedience of the law applicable in armed conflicts and thus to enforce observance of international humanitarian law ":

· consideration for public opinion;
· reciprocal interests of the parties to the conflict;
· maintenance of discipline;
· fear of reprisals;
· penal and disciplinary measures;
· fear of payment of compensation;
· activities of protecting powers;
· international fact-finding;
· the activities of the International Committee of the Red Cross (ICRC);
· diplomatic activities;
· national implementing measures;
· dissemination of humanitarian law; and
· the personal conviction and responsibility of the individual.

As has been recognized in many treaties and manuals on the subject, the laws of war are implemented largely through the medium of individual countries. It is usually through their government decisions, laws, courts and courts-martial, commissions of inquiry, military manuals, rules of engagement, and training and educational systems, that the provisions of international law have a bearing on the conduct of armed forces and individuals. The overwhelming majority of legal cases in connection with the laws of war have been in national, not international, courts.

Even where the problem is one of international enforcement following a violation - to get a foreign state or armed force to comply with the rules - the actions of individual governments have often been important. For example, neutral states may influence the conduct of belligerents, through private or public diplomatic pressure, economic inducements, embargoes, and even threats of military action. On the other hand, they are sometimes hesitant to do so, and when they do act their intervention is often rebuffed by belligerents.

One means of enforcing the law is reprisals. A reprisal may be defined as a retaliatory measure, normally contrary to international law, taken by one party to a conflict with the specific purpose of making an opponent desist from particular actions violating international law. It may be intended, for example, to make the adversary abandon an unlawful practice of warfare. The use of reprisals is controversial. They can on occasion be little more than a fig-leaf thinly disguising the resort to unrestrained warfare; and certain types of reprisal are now prohibited in 1977 Geneva Protocol I. At ratification, a number of states made declarations which, in interpreting some of the Protocol's provisions, appeared to keep open the possibility of reprisals. Italy's long statement of interpretation included the following: "Italy will react to serious and systematic violations by an enemy of the obligations imposed by Additional Protocol I and in particular its Articles 51 and 52 with all means admissible under international law in order to prevent any further violation". On occasion the threat or actuality of reprisals can be an important means of inducing restraint.

One other powerful instrument of enforcement is neglected in most discussions of the subject. Sometimes illegal conduct by a belligerent, including the commission of atrocities, may contribute to the formation of an international military coalition against the offending state; and may influence the coalition's willingness to use force. Such conduct has been a significant element in the building of many coalitions, including the anti-Axis alliance in the Second World War, the international coalition against Iraq in 1990-91, the intervention in Somalia in December 1992, and the decision by NATO and the UN to initiate "Operation Deliberate Force" in Bosnia-Herzegovina on 30 August 1995. Even the possibility of such a process is almost entirely neglected in the legal literature. It constitutes a little-recognized but important link between ius in bello (the law applicable in armed conflicts) and ius ad bellum (the law governing resort to armed conflict). It is discussed further at several points in this study.

The treaty provisions regarding implementation, discussed in subsequent parts of this section, are of many kinds. They include stipulations about the trial and punishment of individual offenders, and about reparations by states. They touch on reciprocity as a basis for observing the laws of war, and on the controversial issue of threats of reprisals as a means of enforcing the law. They contain a variety of arrangements, including monitoring, negotiating, and fact-finding, in order to secure implementation of the conventions. Despite this wealth of provisions, concentration on the treaty arrangements for securing compliance can easily mislead. Many of the formal written provisions have proved less important in practice than was hoped. Arrangements and forms of pressure that were not envisaged in the laws of war treaties have sometimes had more impact.

1. From 1899 to the Second World War

The 1899 and 1907 Hague Conventions on Land War, and the Regulations annexed to them, are vague on the matter of ensuring compliance. Article 1 of the 1899 and 1907 Hague Conventions requires the powers to issue instructions to their land forces in conformity with the Regulations. Article 3 of the 1907 Convention says that a belligerent party violating the Regulations "shall, if the case demands, be liable to pay compensation". In addition, Article 56 of the 1899 and 1907 Hague Regulations makes a vague reference to legal proceedings in the event of violation of its rules about certain types of public property. Nothing more is said about how these or other provisions are to be enforced. The many striking omissions regarding enforcement exposed the Hague system to the accusation that it was based on unduly optimistic assumptions.

However, the relative paucity of formal provisions in the Hague Conventions and Regulations did not mean that there was no implementation system at all. The central assumption, of which the above-summarized provisions are a mere reflection, was of a responsibility on states to ensure that the rules were observed and offenders brought to justice. This assumption has many weaknesses, of which the most obvious, easy to identify but hard to remedy, is that most governments have been, quite understandably, reluctant to prosecute their own servants in cases where their violations of the laws of war were carried out while pursuing government policy. It is this problem above all which has sustained an unbroken series of calls for some diminution of national sovereignty so far as the punishment of war crimes and crimes against humanity is concerned. In twentieth century practice, the Hague Regulations have provided the basis for numerous trials, appeals, arbitrations, and inquiries - not only by national, but also by international, bodies. Their modes of implementation have been richer than those specified in the original texts.

After the First World War a number of international agreements included reference to the punishment of war crimes. The 1919 Treaty of Versailles, Articles 227 to 230, required Germany to surrender for trial members of its armed forces charged with violations of the laws of war. However, by subsequent arrangement with Allied governments, Germany itself tried German offenders, very few of whom were convicted The Versailles Treaty also imposed heavy reparations on Germany on account of its perceived responsibility for the outbreak and therefore the costs of the war - a matter of ius ad bellum rather that ius in bello. The 1929 Geneva Convention on Wounded and Sick, Article 29, provided for punishment of violations on the basis of national penal legislation. The 1929 Geneva Convention on Prisoners of War, Article 86, provided for Protecting Powers to monitor observance of the Convention. both these 1929 Conventions are now defunct, having been superseded by the 1949 Conventions.)

By contrast, a major laws of war agreement of the inter-war years, the 1925 Geneva Protocol of Gas and Bacteriological Warfare, said nothing about implementation other than in the noble but vague formulation "that this prohibition shall be universally accepted as a part of International Law, binding alike the conscience and the practice of nations" On ratification, France and many other states remedied the gap by making it clear that they would cease to be bound by the Protocol if their enemies used the prohibited weapons. Here was a clear threat of reprisals. Fear of reprisals almost certainly played some part in subsequent cases of non-use of such weapons, including during the Second World War and the 1991 Gulf War.

2. The Post-Second World War Trials

There were very many war crimes trials at the end of the Second World War, mainly in national courts of the victorious powers and of the countries they had liberated. The best-known were the international military tribunals at Nuremberg and Tokyo which tried major Axis war criminals. They constitute the major precedent for implementation through international trials. Today, when new international tribunals in respect of war crimes have been established, the post-1945 international tribunals merit re-examination.

The bare facts of the two international tribunals are easily summarized. They originated in Allied declarations in London (13 January 1942) and Moscow (1 November 1943) which declared the prosecution of war crimes to be one of the Allies' principal war aims. On the basis of these statements much work was done to prepare for the numerous national trials. This left the special problem of what to do about major figures whose crimes were not tied to any particular location. On 8 August 1945 the London Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis was concluded. Article 6 specified three types of crimes:

· 6(a) crimes against peace (relating to ius ad bellum);
· 6(b) war crimes (violations of the laws or customs of war); and
· 6(c) crimes against humanity (discussed further below).

On this basis, the International Military Tribunal at Nuremberg sat from 20 November 1945 to 1 October 1946. Of the twenty-two defendants, all but three were found guilty on some charges. Twelve were sentenced to death. Seven received prison sentences ranging from ten years to life. The International Military Tribunal for the Far East, based on the same principles as at Nuremberg, was held in Tokyo from 3 May 1946 to 12 November 1948. There were twenty-eight defendants, of whom two died during the trial, and a third was found mentally incompetent. All twenty-five remaining were found guilty on some charges. Seven were sentenced to death. Sixteen were given life imprisonment, one twenty years, and one seven years. The Tokyo Tribunal has been even more heavily criticized than its counterpart at Nuremberg, not least because it placed comparatively less emphasis on the well-established category of war crimes against protected persons such as prisoners and inhabitants of occupied territories.

The significance of the Nuremberg and Tokyo tribunals is notoriously a subject of controversy. Some aspects of the controversy are not relevant to the present inquiry, such as certain procedural deficiencies and the question of whether the charge of waging aggressive war was well founded in existing international law, and fairly applied, especially at Tokyo. Three other grounds of criticism are closely related to present-day problems of applying the law. These are: (1) that the tribunals applied a body of law some aspects of which had not before 1945 been clearly enunciated in treaty form, or were in treaties which were not fully applicable to the events under scrutiny; (2) that the tribunals were one-sided, as possible war crimes committed by the Allies were neither fully considered there nor dealt with elsewhere; and (3) that large numbers of guilty individuals were either not prosecuted at all, or were treated too leniently. The first and second of these grounds feed into the commonly-uttered view that these trials constituted victor's justice.

The point about whether new law was being developed deserves attention today because it sheds light on the issue of whether there are some standards of behaviour so basic that they must apply to all states and their citizens, in peacetime and in wartime, irrespective of whether or not those standards are clearly spelt out in treaties to which the state in question has subscribed. Several elements are involved.

The first element is the notion of "crimes against humanity". To some extent these were simply war crimes writ large, but in addition they could encompass actions before as well as during the war, and could apply to a government's offences against its own citizens. However, the wording of Article 6(c) of the 1945 Charter of the Nuremberg Tribunal suggested that they had to be committed "in execution of or in connection with any crime within the jurisdiction of the Tribunal" - a curious proviso which blunted the impact of this innovative category. Like the simultaneous development of human rights law in the Charter of the United Nations, the introduction of the idea of "crimes against humanity" can be seen as creative law-making. It did have some basis, albeit shadowy, in existing law. For example, the 1899 and 1907 Hague Conventions had stated in the Martens Clause that in cases not included in the Regulations, "the laws of humanity" remain a source of law of key importance. Whatever the validity of the basic concept of "crimes against humanity", it had even less concreteness and independent existence in the Nuremberg judgment than it had had in the London Charter. Its role was yet further attenuated in the Tokyo trial. Subsequent developments, however, including in the Barbie case, and in the statutes of the international tribunals for the former Yugoslavia and Rwanda, suggest that this legal category is growing in importance and is reinforcing the idea that a wide range of crimes and factual situations is subject to international legal rules.

A second aspect of new law-making arose from the way in which the judgment of the International Military Tribunal at Nuremberg asserted the universal applicability of a key part of existing law, the 1907 Hague Convention IV on land war. The Hague Convention's Article 2, its "general participation clause", had stated that its provisions were applicable only if all the belligerents in a conflict were parties to the Convention. The defence at Nuremberg contended that because some belligerents, Albania being one example, were not parties to the Hague conventions, therefore Germany had not been bound by these conventions, at any rate vis-is non-parties. The Tribunal's judgment said that during the Second World War this treaty applied to all countries, because it had by then become customary law. With this statement, the judges from the victor powers were saying that irrespective of the adherence or otherwise of states to particular accords, irrespective of the legal niceties and the small print, there had to be some minimal universal standards.

All this was part of that aspect of Nuremberg which significantly tempered the central role of governments by injecting the idea of personal responsibility in respect of universal standards. The doctrine that superior orders are not a defence against a charge of war criminality was another manifestation of this approach. In short, the old idea of a society of states was having to yield, however slowly, to a society where governments were subject to certain over-arching principles, and could not order around their citizens, even their officers, just as they wished. Modern ideas of legal positivism, based on treaty law alone, were subtly yielding to older ideas of natural law.

As to the accusation that the Nuremberg and Tokyo trials were onesided, it is easy - and it was well done by the defence lawyers at the trials- to point out that there had been terrible deeds on both sides in the war. On some matters, such as submarine warfare and city-bombing, the Allies, just as much as the Axis powers, had ignored existing treaties and legal principles. The Soviet record regarding treatment of prisoners had been appalling. However, there was one major category of activity on which the law was clear, and in respect of which there was little comparison between Axis powers and at least most of the Allies. This category was in the end a main basis for the conviction of most of the major war criminals. It concerned, not combat itself, but treatment of those more or less hors de combat The Axis atrocities against many of those who were directly under their control - whether Jews, prisoners of war or inhabitants of occupied territories - formed the strongest ground for conviction. It cannot have been wrong to punish these acts. They were clear violations of the most elementary principles of decency, as well as being contrary to the 1907 Hague Land War Convention and the 1929 Geneva Prisoners of War Convention.

The accusation that the many trials at the end of the Second World War did not go far enough is serious. The administration of justice was, as perhaps it had to be, extremely selective. Many German and other individuals who had been accomplices in mass murder escaped the Allied net, or else were considered too useful to the Allies to be prosecuted The attempt at Nuremberg to establish "organizational guilt" through membership of criminal organizations such as the SS (Schutzstaffeln) was not successful. As time wore on, the Allies rapidly lost enthusiasm for criminal prosecutions, and thousands of cases were not pursued. The "denazification programme" was a preferred if still flawed substitute In the end, an implicit principle of Nuremberg and Tokyo was to hold highly-publicized trials of a few leaders primarily responsible for a process of criminality in which hundreds of thousands had in fact been culpable in one way or another.

While these and other criticisms of the Nuremberg and Tokyo trials are well founded, they do not for the most part suggest that the trials were not worthwhile. The trials responded to wholly exceptional circumstances. They greatly strengthened the idea that the conduct of states and armies was subject to some over-arching legal standards however imperfectly enforced in this instance.

The post-Second World War trials may have been "victor's justice", but in retrospect that is not only their greatest weakness but also their greatest strength. The fact that they were victors enabled them to gather the necessary evidence, arrest a high proportion of the main suspects, and hold trials. There were few worries about whether the trial process might actually worsen the conflict with the Axis powers, since they were already defeated. The costs of the process were underwritten The contrast with the International Criminal Tribunal for the Former Yugoslavia, which has experienced difficulties in such matters as getting hold of suspects and securing adequate resources, is striking.

A questionable part of the legacy of Nuremberg is the creation of expectations that, in general, trials are an appropriate way to handle war crimes issues. As Telford Taylor has put it:

"Also, in terms of enforcement, whether the charge is war crimes or crimes against humanity, I think it is a mistake to expect that the device of a criminal trial is the major way in which the enforcement of those limitations and obligations is going to be achieved. As one vho has taught criminal law for several years, I always try to instill in my students a basic appreciation that most law enforcement is voluntary. Therefore, in the international field as well, the idea that trials alone (or statutes and treaties) can bring about the reforms and remedies that we hope for is misplaced reliance .

Since 1945, many countries have conducted national trials for war crimes committed in the Second World War. Often there has been special legal provision to permit such prosecutions long after the offences. Thus the UK government, while failing to take action regarding Iraqi war crimes in the 1990-91 conflict over Kuwait, and acting over the objections of the House of Lords, passed the War Crimes Act 1991, enabling UK courts to try offences arising from the Second World War. The UK government appeared to be pressing ahead towards possible trials of octogenarians who had held middle- or low-ranking positions in the Second World War. An argument for the UK government's approach was that these individuals were under UK jurisdiction, and hence it was actually possible to take action. To date, extensive investigations of possible suspects have only led to one indictment.

3. The Post-1945 Conventions: General

After two world wars the need for some penal and other mechanisms for securing compliance with the laws of war was self-evident. The major treaties in the field since 1945, particularly the four 1949 Geneva Conventions, contain an unprecedented range of provisions about dissemination, instruction of armed forces, humanitarian and monitoring tasks during armed conflicts, and repressing breaches These provisions, discussed below, did not follow a single standard form, and contained many innovations.

A general trend in the post-1945 conventions has been to try to get beyond the previous unsatisfactory situation in which it was assumed that implementation was fundamentally an internal matter for states. The Nuremberg and Tokyo tribunals had self-evidently taken a bold step beyond the idea that states could be relied on to punish their own nationals. In several ways, itemized in the following sections, the Geneva Conventions and other laws of war agreements advanced the concept of international involvement in implementation - especially through proposals regarding fact-finding and universal jurisdiction for war crimes. Three agreements since 1945 have specifically provided for a United Nations role in securing implementation of their terms and in dealing with violations.

Common Article 1 of the four 1949 Geneva Conventions is often, and increasingly, viewed as providing a basis for states to involve themselves in ensuring implementation of the conventions not merely within their own territories and areas of operations, but also more generally. It says: "The High Contracting Parties undertake to respect and ensure respect for the present Convention in all circumstances". The words "and ensure respect", which had not appeared in previous conventions, have been widely seen as signifying that states, whether or not involved in a particular conflict, have a responsibility to help ensure implementation of the conventions wherever and whenever they are being violated. Such an interpretation of common Article 1 was already evident in Jean commentary, in which he said, in expansive terms going beyond the narrow confines of legal analysis: "It follows [..] that in the event of a Power failing to fulfil its obligations, the other Contracting Parties (neutral, allied or enemy) may, and should, endeavour to bring it back to an attitude of respect for the Convention". This view has prevailed in much subsequent analysis and advocacy, including at the ICRC.

This interpretation of Article 1 does not appear to have a basis in the negotiating history of the 1949 Geneva Conventions. In the various meetings at Stockholm and Geneva, the words "to ensure respect" had another meaning: to ensure that the whole population of a country which was party to the conventions would respect the law in all circumstances, even perhaps in the case of civil war. There appears to be little or nothing in the records of the 1949 Diplomatic Conference to suggest an awareness on the part of government delegates, or indeed ICRC participants, that the phrase "to ensure respect" implied anything beyond this.

Whatever the original intention behind it, the interpretation of common Article 1 as implying a duty to promote implementation generally has helped to bring the question of implementation of the laws of war more centrally into the discourse of states and the activities of international organizations. It played some part in the EC Dublin summit Declaration on the Middle East of 26 June 1990. States are indeed at liberty to interpret, or reinterpret, their obligations under Article 1 in this way; and it may be especially appropriate to do so in view of developments since 1949, including the world-wide concern over laws of war issues. Yet states need to be aware that in so doing they are entering difficult territory, probably not envisaged by the negotiators of the 1949 conventions, and containing pitfalls for the unwary.

4. The Post-1945 Conventions: Humanitarian, Monitoring and Fact-Pinding Tasks

The 1949 Geneva Conventions put considerable, perhaps too much, emphasis on that long-established diplomatic institution, the Protecting Power, as a means of ensuring implementation of their terms during armed conflicts. Pictet defines a Protecting Power thus:

"A Protecting Power is, of course, a State instructed by another State (known as the Power of Origin) to safeguard its interests and those of its nationals in relation to a third State (known as the State of Residence). It will be seen at once that the activities of a Protecting Power are dependent on two agreements: the first between the Power of Origin and the Protecting Power and the second between the Protecting Power and the State of Residence".

The 1977 Geneva Protocol I, Article 2(c), offers the following definition for the purposes of the Protocol:

"'Protecting Power' means a neutral or other State not a Party to the conflict which has been designated by a Party to the conflict and accepted by the adverse Party and has agreed to carry out the functions assigned to a Protecting Power under the Conventions and this Protocol".

The 1949 Geneva Convention IV makes extensive provision for Protecting Powers to look after the interests of civilians, including in occupied territory. Protecting Powers have a general duty to protect the interests of the parties to the conflict; they are to lend their good offices in cases of disagreement either about the interpretation of the Convention or about its application; they can facilitate the establishment of hospital and safety zones and localities; they are to be informed of any transfers or evacuations in or from occupied territory; they can verify the state of food and medical supplies in occupied territories; they must be informed of all charges instituted by the occupant against protected persons involving the death penalty or sentences of two years or more, and they have various other rights and duties as regards legal proceedings; they can supervise the distribution of collective relief shipments to internees; and they can go to all places where protected persons are, particularly to places of internment, detention and work. In addition, Protecting Powers have responsibilities regarding the observance of the 1954 Cultural Property Convention; and are the subject of numerous detailed provisions in the 1977 Geneva Protocol I.

The 1949 Geneva Conventions do allow for the possibility that the Protecting Power arrangements might fail to come into operation. A common Article in all four conventions provides that certain organizations can assume all the functions of the Protecting Powers. Such a substitute may be, by agreement between the parties, "an organization which offers all guarantees of impartiality and efficacy"; failing this, in exceptional circumstances it may be a neutral state appointed by the Detaining Power; failing this, a humanitarian organization such as the ICRC may assume, if not all the traditional functions of the Protecting Power, at least the humanitarian functions performed by Protecting Powers under the 1949 Conventions.

Quite separately from the provisions regarding Protecting Powers, the 1949 Geneva Convention IV leaves much scope for activities by impartial humanitarian organizations such as the ICRC, which is mentioned in no less than 22 of its 159 articles.

In practice, the various formal provisions for the role of Protecting Powers have been of little use, because states in conflict with each other have almost always been unwilling or unable to agree on the appointment of such Powers. Many writers have pointed to the weaknesses of the Protecting Powers arrangements, depending as they do on a tripartite consensual basis. Yet there have been some cases of Protecting Powers having a role during armed conflicts, albeit in a manner different from what the conventions envisaged. They were used, for example, in the 1971 India-Pakistan War, in which one Protecting Power acted on behalf of both sides in a conflict, representing each to the other; and in the 1982 Falklands War, in which the duties of the Protecting Powers were mainly general diplomatic representation, rather than the exercise of humanitarian functions under the Geneva Conventions.

In most conflicts, it has been the ICRC which has borne the heat and burden of the day. ICRC representatives have actually carried out most of the various humanitarian and monitoring tasks provided for in the Geneva Conventions; this has been so even in cases where Protecting Powers have been appointed to look after certain interests of the belligerents.

A further mechanism aimed at securing implementation of the Geneva Conventions is the International Humanitarian Fact-Finding Commission. 1977 Geneva Protocol I, Article 90, provides for the establishment on a permanent basis, with periodic elections, of an International Fact-Finding Commission to:

"(i) enquire into any facts alleged to be a grave breach as defined in the Conventions and this Protocol or other serious violation of the Conventions or of this Protocol;

(ii) facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and this Protocol ".

The International Humanitarian Fact-Finding Commission has in fact been set up. Under the terms of Art. 90(1)(b), which stipulated that it could only be established when twenty states agreed to accept its competence, the Commission, which has fifteen members, was duly elected at a meeting in Bern in June 1991. At its second meeting, in July 1992, the Commission unanimously adopted the final draft of its rules of procedure, and became operational. Since then it has done some preparatory work, not least, in the delicate words of its President, trying "to draw the international community's attention to its avaiblity.

An inquiry can be set up in two situations, both of which depend on states to take an initiating role. First, a party to a conflict can request an inquiry, which can only be established with the consent of the other party or parties concerned; or secondly, a state having accepted the automatic competence of the Commission makes an allegation against another state which has likewise previously accepted the Commission's competence. So far, there is no evidence that states will use this new mechanism. Franse Hampson has written:

"As experience with the Geneva Conventions has shown, the mere existence of a fact-finding mechanism does not mean that it will be used. The challenge is there. It remains to be seen whether States will rise to meet it".

Why, in its three years of existence, has use not been made of the International Humanitarian Fact-Finding Commission? One part of the problem is the continuing reluctance of many states to make a declaration accepting its competence. As of 30 June 1995, of the 138 states parties to 1977 Protocol I, 46 had made a declaration accepting the competence of the Commission. A more fundamental problem may be the reluctance of states, including those which have accepted the Commission's competence, to invoke its services in view of the fact it may have to deal with issues as sensitive as the applicability of the Conventions, and the characterization of particular acts as "grave breaches " or "serious violations".

The relevance of the Fact-Finding Commission is above all called into question by the fact that in the years since it was established the UN Security Council has established ad hoc mechanisms for investigating and taking action regarding violations, most notably in connection with the wars in the former Yugoslavia and Rwanda. Indeed, Erich Kussbach has gone so far as to say: "After a long period of inability to act, the Security Council has seemingly become the master of collective security and apparently is about to take over, step by step, the responsibility for the administration of humanitarian law. The future will show how the Security Council will be able to cope with its heavy responsibilities". Although his optimism about a UN system of collective security is open to serious criticism, the ad hoc arrangements under UN Security Council auspices do have many advantages over the Commission: it is not necessary for individual states to initiate the process; states or other entities can be investigated irrespective of whether they have accepted the competence of the Commission; the relevant body of law to be applied can be identified separately in each instance, and can thus be appropriate to the particular conflict and the facts alleged; the range of problems and situations which can be investigated is therefore greater, since it is not limited to clear cases of international armed conflict; there are fewer obstacles to publication of the outcome of an investigation; and the fact-finding process can be linked to action in the form of prosecutions. Once again, implementation in practice has assumed forms significantly different from what the conventions provide.

5. The Post-1945 Conventions: Punishment and Compensation

The various conventions concluded since 1949 contain far more on the punishment of violations than did their predecessors.

The 1948 Genocide Convention, Article VI, contains provisions for the trial, whether by national or international tribunals, of persons charged with offences under the Convention. However, these provisions are puny and inadequate when the treaty's full title (Convention on the Prevention and Punishment of the Crime of Genocide), and the scope and seriousness of the problem which it purports to tackle, are borne in mind. Article VIII breaks new ground in specifying that any contracting state "may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide

The 1949 Geneva Conventions introduce a special category of "grave breaches", and outline a system of penal sanctions for persons committing them. Convention IV defines grave breaches thus:

"Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly".

The immediately preceding article, which is common to all four 1949 Geneva Conventions, requires states parties to enact any necessary legislation to punish grave breaches of the conventions; and to search for people who have committed, or ordered, such breaches. States may also hand such suspected persons over for trial in another state, provided a prima facie case has been made out. States are also to take measures necessary for the suppression of breaches other than grave breaches. This article follows the well-trodden path of relying on states for enforcement, but it does contain significant new provisions in that regard. National courts, which are to have penal jurisdiction to implement the Conventions, are to have jurisdiction over all individuals, regardless of nationality, alleged to have committed grave breaches. This system has obvious, but inevitable, weaknesses. In practice, states not involved in a conflict have proved reluctant to fulfil the obligation to try suspected offenders. A related difficulty concerns extradition. If a state is unwilling to punish a war criminal residing in its territory, it may prove difficult for another state to secure extradition, as the provision in the common article of the conventions is purely permissive. The easy way out for any war criminal is still to go to a country which does not have the political desire to punish him or her, and does not have extradition agreements with those who do.

Overall, the punishment provisions of the 1949 Geneva Conventions have proved vulnerable to the familiar objection that governments are generally reluctant to prosecute their own servants for violations of the laws of war. Further, courts may be reluctant to act independently of the political stance of their respective governments. The punishment provisions of the 1949 Geneva Conventions are also open to the possible objection that they allow for trials to be held in wartime, when passions may be high and the evidence incomplete. Finally, some problems may arise from the fact that the penal provisions, by providing for action by the state, do not envisage legal actions by injured parties. This is in contrast with the rather different procedures in human rights law.

The payment of compensation, or reparations, has consistently been provided for in the laws of war as one means of making amends, and has often been practiced. This whole approach is very different from provisions for trials, as it involves for the most part taking action against the state as a whole, rather than against individuals; and it is often decided by political-diplomatic rather than judicial bodies. Compensation was mentioned, as noted above, in the 1907 Hague Convention IV, Article 3, the words of which were adapted only slightly in the 1977 Geneva Protocol I, which says: "A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces".

As far as non-international armed conflicts are concerned, the post 1945 international conventions that touch on this subject make hardly any provision for punishment or compensation. Common Article 3 of the 1949 Geneva Conventions, and the 1977 Geneva Protocol II, do establish some minimal rules regarding such conflicts, and states do have the right to punish breaches of those rules. Despite this, Denise Plattner was basically right to conclude in 1990: "The rules establishing international responsibility for violations of IHL applicable in non-international armed conflicts are yet to be made". Since then, the adoption by the UN Security Council of the Statute for the International Tribunal for Rwanda (which, in contrast to the tribunal on Yugoslavia, is predicated on the assumption that the conflict in Rwanda is non-international) provides some legal reinforcement to the claim that failure to observe certain basic humanitarian rules is an international offence even in civil wars.

6. Other Mechanisms of Implementation

Implementation of the laws of war often involves use of mechanisms which were not specifically envisaged in the conventions. These mechanisms are of many kinds. In their mutual relations, states commonly use the whole range of methods open to them, from diplomatic notes to economic sanctions and threats of war, as means of trying to enforce compliance; while within states a huge variety of factors may affect compliance, including the political and ethical culture of the state and its citizens. What follows are simply a few illustrations of the range of mechanisms which may in fact operate.

Fact-finding, especially public exposure of violations of the laws of war, has often been done through the media. It was through the press, for example, that details of the 1968 My Lai massacre in Vietnam were exposed. Similarly, it was though the press and TV that the inhumane regime in some prison camps in the former Yugoslavia was publicized. Sometimes the presence of UN peace-keeping forces in an area can help to make war crimes known.

Within states, a wide range of administrative measures have had an important part in bringing the practice of armed forces and the principles of the laws of war into some kind of relation with each other. For example, official enquiries and reports are often a means of establishing facts, and of re-examining and bringing about changes in government policy on particular issues.

Such reports can be a basis for applying international rules to internal situations. For example, throughout the troubles in Northern Ireland from 1968 to 1994 the UK government was consistent in viewing the situation there as essentially internal and low-level in character. At least until 1972 it did not go much beyond the position that the principles in common Article 3 of the 1949 Geneva Conventions were germane whether or not they were formally applicable. However, in 1972 Lord Gardiner's minority report, which was accepted by the Government, was an interesting example of asserting the wider relevance, even in an internal conflict, of certain international legal standards, including some from the main body of the four 1949 Geneva Conventions.

When, following the Israeli intervention in Lebanon in 1982, there were massacres of Palestinians at Sabra and Shatilla camps in Beirut in September 1982, it was an Israeli official report which helped establish the facts surrounding these events, and reminded Israel that certain well established standards had to apply not only to the actions of the Israel Defence Forces but also to those paramilitary forces operating in conjunction with them.

Unofficial commissions and inquiries, set up by non-governmental organizations, can also play an part in fact-finding, and in expounding the rules applicable to a particular situation. One such commission was established following the Israeli invasion of Lebanon in 1982.

Regional organizations can also have a role in reminding parties to conflicts of the relevance of international standards and in applying pressure for their implementation. They may do this through their representative, executive or judicial bodies. There have been many such cases in the history of the European Union and its predecessors. The role of the European Court of Human Rights in dealing with numerous cases from Northern Ireland is an example. The Court's decision of 27 September 1995 about the Special Air Service killing of three Irish suspects in Gibraltar in 1988 exposed considerable British government sensitivity about UK military actions being subject to European court decisions.

The European Commission of Human Rights played a significant role in issues arising from armed conflict when it heard the Cyprus v. Turkey cases. The Government of Cyprus vigorously asserted that violations of human rights by Turkey in the Turkish-occupied areas (including the detention or murder of some 2,000 missing Greek Cypriots and the refusal to allow more than 170,000 Greek Cypriot refugees to return to their homes) were contrary to the European Convention on Human Rights, and were matters of legitimate international concern. The applications of the Government of Cyprus were ruled admissible by the European Commission of Human Rights on 26 May 1975 and 10 July 1978 - a significant recognition in principle of the applicability of international human rights law to occupied territories.

At a more political level, from the late 1980s onwards member states of the European Community made protests to Israel regarding its policies in the occupied territories, and suspended or delayed ratification of trade agreements.

What is striking about the some of the implementation mechanisms briefly outlined here is their largely political character. They tend to involve attempts to change policies perceived as illegal or inhuman through the application of pressures of various kinds. Even when it is asserted clearly that violations of the laws of war have occurred, such attempts are not necessarily linked to demands for trials of individuals. Sometimes such attempts are one-sided, showing only limited understanding of the complexities of a conflict and the different viewpoints of belligerents.

Where court cases have followed from violations of the laws of war, they have often assumed a very different form from the state trials of war criminals envisaged in the conventions. They have often been civil rather than criminal in character. One unusual and controversial example is the Israeli innovation of establishing a right to petition the Supreme Court of Israel against arbitrary or illegal acts by the occupant. Another interesting example is the current attempt of former prisoners of war under the Japanese, and Asian women forced into prostitution by occupying Japanese armies in the Second World War, to gain compensation for illegal Japanese conduct through Japanese courts.

7. The Involvement of the United Nations

Since about 1980, crises over implementation have focused to an unprecedented extent on the United Nations, and more particularly on the Security Council. The UN's involvement in issues relating to the international law of armed conflict goes back a long way. The wartime allies established the United Nations War Crimes Commission on 20 October 1943, at the same time as they were working towards the creation of the United Nations Organization. The 1948 Genocide Convention, Article VIII of which made significant reference to the UN, was negotiated at the UN General Assembly. A further major landmark was General Assembly Resolution 2444 of 19 December 1968 on "Respect for Human Rights in Armed Conflicts". Literally hundreds of UN General Assembly resolutions have used the laws of war as a basis for criticizing the actions of particular states; Israel's conduct in the occupied territories has been condemned with particular frequency.

In 1977, two treaties made explicit provision for a major UN role in implementing the laws of war. The Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (the ENMOD Convention) envisaged that the UN, especially the Security Council, would handle investigations of suspected violations. The Geneva Protocol I foreshadowed the further involvement of the UN in matters relating to the laws of war when it stated: "In situations of serious violations of the Conventions or of this Protocol, the High Contracting Parties undertake to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter".

Since at least the mid-1980s, the UN's involvements in matters relating to the laws of war have focused more on the Security Council than the General Assembly, and more on implementation than on development of the law. The Security Council's involvement in this area illustrates the wide range of issues in which the Council can become engaged once it is seen as capable of reaching agreement. It also illustrates the difficulties of attempts to ensure implementation.

If the assumption is that the UN is becoming the centre of a system of collective security, then its concurrent rule as a supervisor and arbiter of the implementation of the laws of war may well seem a logical corollary. In the post-Cold War era, many have hoped, and some still hope, that the UN has the possibility of establishing some kind of general system of collective security. However, for those who are sceptical as to whether the traditional difficulties of proposals for collective security have even been addressed, let alone overcome, the Security Council's role in laws of war issues looks especially problematic. If the Security Council is not capable of tackling effectively even a modest proportion of threats to the peace, will it be any more effective in the lesser task of securing implementation of the laws of war?

One obvious problem with the UN's role in respect of the laws of war is that the Security Council is necessarily selective as to which issues it tackles. Due principally to the existence of the veto, the Security Council did nothing about alleged violations of the laws of war during the Vietnam war in the 1960s and 1970s, nor during the Afghan war in the 1980s. It was the General Assembly, not the Security Council, that passed most of the resolutions critical of Israeli conduct in the occupied territories.

In some conflicts since the mid-1980s, as briefly summarized in the following sections of this study, the UN Security Council has dealt with laws of war issues. It has addressed two fundamentally distinct aspects: first, the investigation and punishment of major violations by belligerents; and second, the management of UN-authorized forces, whether in peace-keeping or enforcement actions, in a manner consistent with the laws of war. An opinion on the effectiveness of these roles will be offered in the conclusions of this study.

8. The International Court of Justice

The International Court of Justice (ICJ) at The Hague has long had certain limited roles in respect of implementation of the laws of war. There are specific references to the ICJ in the 1948 Genocide Convention; and the 1954 Hague Cultural Property Convention. However, the Court's Statute, with its built-in limitations on what type of cases may be brought to it and by whom, is likely to mean that it will only have to look at a minority of issues concerning the laws of war.

Many cases brought before it have involved key laws of war matters: for example, the Corfu Channel case in 1949; and Nicaragua v. USA in 1986.79 Both these cases involved the principle that a state laying mines at sea is obliged to give notification of their location in order to protect the security of peaceful shipping. The Court now has the politically more sensitive and intellectually more complex issue of the legality of nuclear weapons to consider in the case brought by the World Health Organization and the UN General Assembly.

Many cases have involved issues analogous to, and potentially relevant to, laws of war problems. The United States Diplomatic and Consular Staff in Teheran case concerned the treatment of individuals under the protection of international law in an emergency situation. The Frontier Dispute (Burkina Faso/Mali) case raised the question of interim measures of protection. The 1971 Advisory Opinion on Namibia involved several germane matters, including the use of a sanction: termination of a League/UN mandate as a response to failures to observe certain rules of restraint.

In cases concerning the former Yugoslavia, the ICJ has been asked to answer very complex political questions touching on the laws of war. This is most notably so with the case brought by Bosnia and Herzegovina against the Federal Republic of Yugoslavia, Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide. This case is currently proceeding slowly.

In many of these cases on which it has reached decisions, the ICJ has performed a useful service by clarifying the content of the laws of war and their application to particular and often complex circumstances; and by publicizing fundamental principles which should inform the policymaking of states in matters relating to the use of force. However, there are limits to what the ICJ can achieve. Many states are reluctant to let cases concerning their own survival be settled by a distant conclave in The Hague. They may also worry about the slowness of some (but certainly not all) of its proceedings. When it is asked to comment in a general way on complex issues which are bones of contention among statesmen and lawyers - as in the nuclear weapons case currently before it - the Court's decision, whatever it is, may not be found universally persuasive, let alone decisive. The ICJ may look weak if it tries to avoid certain difficult issues because they are not justiciable, or because they are not quite the types of matter with which the Court is charged to deal. However, it may look even weaker if it reaches a decision which is then not fully implemented. In some cases it could be very difficult to secure implementation of the Court's decisions.


In some of the international wars of the past two decades, belligerents have displayed both an acceptance of the applicability of the laws of war and a willingness to apply them in practice. Despite some questionable acts on both sides, this was largely the case in the 1982 Falklands War between the UK and Argentina - perhaps because this was a war in which civilians were only marginally involved, and in which neither of the belligerent countries faced a threat to its entire existence. In some other conflicts, including the 1990-91 Gulf Conflict, the laws of war have been applied more by one side than by the other. In yet other conflicts, especially those involving more extreme threats to the existence of communities and countries, implementation of the laws of war has been patchy or non-existent. Important issues have emerged from these varied experiences, including several very different responses by the UN Security Council to violations of the laws of war. Four conflicts are considered in detail in this section: the 1980-88 Iran-Iraq War, the 1990-91 Gulf conflict, the wars in the former Yugoslavia since 1991, and the internal conflict in Rwanda in 1994. There is also a brief look at the International Conference on the Protection of War Victims, held in Geneva in 1993, which attempted to grapple with the question of implementation.

1. Iran-Iraq War 1980-88

The long war between Iran and Iraq was in many respects a traditional inter-state war. The main treaties of the laws of war were incontestably applicable. There were violations of fundamental rules in such matters as the treatment of prisoners, the use of gas, and attacks on neutral shipping. The UN had two major involvements in respect of the laws of war: first in connection with treatment of prisoners, then in connection with use of gas.

In January 1985, acting on his own behalf, the UN Secretary-General dispatched a mission to Iran and Iraq to investigate conditions under which POWs were being held; this included investigating an incident which had occurred at a POW camp in Iran in October 1984, in which a number of Iraqi POWs were killed or injured. This led to a very thorough report; whether it greatly benefited POWs is doubtful.

Iraq's use of gas during the war gave rise to one of the first major uses of the UN Security Council as a "monitor" of the laws of war - a role which proved, and continues to prove, problematic. Both Iran and Iraq were parties to the 1925 Geneva Protocol prohibiting the use of gas and bacteriological war. The Secretary-General commissioned a number of investigations into reports of the use of gas. On 21 March 1986 a UN Security Council statement for the first time criticized Iraq by name over the use of gas. On 26 August 1988 the Security Council unanimously adopted a resolution condemning "the use of chemical weapons in the conflict between Iran and Iraq" 87 There was also considerable evidence of Iraqi use of chemical weapons against its Kurdish minority.

After the end of the war in 1988, various diplomatic efforts were made to reinforce the Protocol's provisions. In January 1989, at a specially convened Conference in Paris on the Prohibition of Chemical Weapons, attended by representatives of 149 states, a final declaration was adopted which solemnly condemned use of such weapons and reaffirmed the prohibition in the 1925 Protocol. Iraq agreed to this declaration, claiming that the threat it had faced from Iran had been terrible and exceptional. The conference's final declaration gave strong support for the role of the UN Secretary-General as an investigator of violations. However, as a special correspondent of the Financial Times wrote, "Past experience has made the UN Secretariat sceptical about how free a hand it will get".

In January 1993, five years after the end of the Iran-Iraq War, the Chemical Weapons Convention was signed in Paris; this is first and foremost a prohibition of manufacture and possession of such weapons, not just of use, and thus belongs more in the category of arms control than laws of war. It is not yet formally in force. This treaty has been seen as overcoming a perceived weakness of the 1925 Geneva Protocol, namely that it prohibited use but not possession. However, there is some risk that the Chemical Weapons Convention, when it eventually enters into force, could actually weaken the prohibition on the use of chemical weapons. This is because it leaves some uncertainty about the sanction that would be employed in the event of violations. The threat of retaliation in kind, which had sometimes buttressed the old 1925 Geneva Protocol regime, would be absent in future. It had only been where that threat was absent, because the victim state lacked any capacity to threaten retaliation in kind, that chemical weapons had been employed. Instead, Article XII of the 1993 treaty provides for the application of collective measures by States Parties, including, in cases of particular gravity, bringing the issue to the attention of the UN General Assembly and Security Council. Whether this will prove effective in practice remains to be seen.

The events surrounding the Iraqi uses of chemical weapons in the 1980-88 war illustrate several inter-linked themes which have since recurred in other conflicts:

1. there is clear violation of a well established rule of the laws of war;

2. following an investigation under UN auspices, the Security Council condemns violations;

3. an international diplomatic conference in Europe solemnly condemns violations and calls for action; and

4. nothing further happens regarding the particular violations that have occurred.

This episode may have reinforced a lesson which the Iraqi leadership had no doubt also learned from the supine response of the powers and of the UN to the original Iraqi attack on Iran in 1980: that Iraq could ignore the solemn pronouncements and spasmodic condemnations issued by the international community.

2. The 1990-91 Gulf Conflict

The laws of war issues in the 1990-91 Gulf conflict - that is, the August 1990 Iraqi occupation of Kuwait, and the war of January-February 1991 which brought it to an end - have been considered in several official US publications. There has also been much analysis, official and unofficial, in a wide range of other publications, and from other national perspectives.

During the occupation and war there was extensive public reference to well-estabhshed international norms about particular aspects of the conduct of occupations and armed conflicts, not least in the matter of seizure and treatment of hostages, treatment of prisoners of war, attacks on civilians, non-use of chemical weapons, and wanton destruction including damage to the environment. Further, this war threw light on some general questions. First, did Iraq's violations of the Geneva Conventions and other rules of war, and the strong political reaction that these violations caused, contribute to the hardening of opinion against it, and thus to the formation of the multi-national coalition? Second, can conducting operations on a basis of acceptance of the laws of war assist in maintaining the unity and coherence of a coalition action with United Nations authorization? Third, can the laws of war contribute significantly to the maintenance of restraints in war? Fourth, what can be done about the post-war punishment of violations?

The 1990-91 Gulf Conflict is an interesting case of a war in which one side, by and large, took laws of war restraints seriously on a wide range of matters, dealing both with combat and with the treatment of prisoners and others under the control of a belligerent. The other side, while not in principle rejecting all idea of the laws of war, did ignore them on a range of issues. The case therefore confirms that in practice implementation does not always have to be a matter of reciprocity between the parties; there are other reasons - legal, political and practical - for one side to implement them even if its adversary does not

The twenty-eight member military coalition probably gained from its attention to the laws of war in a number of ways. First, in the months after the Iraqi occupation of Kuwait on 2 August 1990, the widespread public attention to illegal Iraqi policies, including seizure of hostages, helped to reinforce support for the coalition cause. It did so both domestically within the coalition countries, and internationally in helping to mobilize support for their position. Second, once Desert Storm began in January 1991, the emphasis on restraint and accuracy in targeting had similar benefits so far as the international consensus was concerned. Third, the promise of good treatment of Iraqis who left their vehicles and/or surrendered, a promise backed up by a major leaflet campaign, may have encouraged many Iraqi soldiers to end their participation in hostilities.

The first two of these points suggest the particular salience of the laws of war to coalition warfare under UN auspices. They also suggest that there are in fact some complex and subtle connections between ius in bello and ius ad bellum. Iraq's violations of ius in bello helped to weld the coalition together, reinforcing its sense of the legitimacy of its cause. The laws of war provided one means for harmonizing the different practices of states and justifying them to anxious publics. Curiously, there was no serious suggestion in the 1991 Gulf War that forces acting in the name of the UN ought to be in some way privileged, and to have greater rights in some matters than their adversaries. That issue would come up in Somalia.

This is not to assert that, in laws of war terms, coalition conduct was perfect. There were many defects. As in the 1982 Falklands War, some battle incidents raised the question of what is proper evidence that troops wish to surrender. For example, on the second day of the war US forces attacked an oil platform on which Iraqi forces were allegedly trying to surrender. A US Navy board of investigation concluded that the US commanding officer's actions did not violate the law of armed conflict, but his failures to investigate, evaluate and report on the Iraqi white flags represented a serious lapse of judgement. This US Navy investigation was an instance of implementation of aspects of the laws of war being seen as a national responsibility, and being handled in the context of maintaining professional military standards.

Perhaps the most questionable acts by the coalition were those resulting in civilian deaths. In the Amariya bunker attack on 13 February 1991 there were approximately 300 civilian casualties. It can be claimed that this was not clearly, perhaps not at all, a violation of the laws of war, as it had not been the intention of the coalition to bring about such a terrible result. This disaster appears to have been due to reliance on faulty intelligence.

Many other events in the war similarly suggest the inherent difficulty, perhaps impossibility, of maintaining a clear line between attacks on the military and attacks on civilians. The coalition's use of accurate air-delivered weapons undoubtedly did something to increase the chances of air warfare conforming to a greater extent than hitherto with basic principles of the laws of war, especially as regards discrimination in attacks. On the other hand, in this war there were many coalition attacks on military targets such as bridges and power stations which also served civilian functions. There was also much collateral damage, faulty intelligence, and so on. Suggestions that we might be entering a new era of clinical warfare are probably misplaced.

Iraq violated the laws of war in countless ways: looting, taking of hostages, treatment of prisoners, Scud attacks on cities, and attacks on oil installations resulting in damage to the environment. Most of these acts would have been violations in any circumstances, but were particularly egregious cases on account of the absence of a serious strategic rationale. In the event, they achieved few military results. The judgement that Iraq derived no serious military advantage from its violations is persuasive. Many Iraqi war crimes involved the coalition in considerable effort, for example in dealing with the Scud threat during the war and in restoring the oilfields after the war, but they were never likely to be militarily decisive.

After the suspension of coalition military activities on 28 February 1991, the coalition governments suddenly became quiet on the subject of the responsibility of Saddam Hussein and colleagues for major war crimes. This contrasted with the earlier emphasis on war crimes in Security Council Resolution 674 of 29 October 1990. After the cessation of hostilities, the Security Council passed some long and very detailed resolutions on the cease-fire, reparations, dismantling of Iraq's capability for chemical warfare, and so on. One of these, Security Council Resolution 687 of 3 April 1991, is the longest ever passed by the Security Council. Yet. nothing was said on the subject of personal responsibility for war crimes. Similarly, in less than three months after the cessation of hostilities some 64,000 Iraqi prisoners of war were repatriated without any attempt to sift out those suspected of war crimes - a process which might have delayed repatriation by years.

There were genuine difficulties in pursuing the war crimes issue First and foremost, Saddam Hussein would have been difficult to arrest even had the coalition military action had more offensive goals. After the end of hostilities, it would have been awkward to call for his arrest as a war criminal at the same time as negotiating cease-fire terms with his government. Further, outside powers were reluctant to press for trials if local powers would not join them in doing this. There were hazards in limiting trials to the conflict of 1990-91, as the Iraqi regime had engaged in criminal activities externally and internally both before and after that episode.

However, the failure to take any action against the Iraqi leaders exposed a serious problem regarding the laws of war, namely, the difficulty of securing enforcement even after clear evidence of violations The Pentagon ended its Final Report pointedly: "A strategy should be developed to respond to Iraqi violations of the law of war, to make clear that a price will be paid for such violations, and to deter future violators". At a minimum, it would have been possible to make a statement to the effect that major war crimes occurred, involving grave breaches of the Geneva Conventions, that there is personal responsibility for these crimes, and that under the Geneva Conventions any state is entitled to prosecute. Such a statement could have been made by the coalition powers, the UN General Assembly, or the Security Council. The United States did eventually, in a little-noted war crimes report prepared in 1992 and issued by the UN in March 1993, say all of these things, but did not put great political emphasis on the matter. The absence of a coherent coalition policy on major war crimes was highlighted by the fact that some junior figures - Iraqi officers who happened to have been caught in Kuwait at the time of the cease-fire - had been put on trial in Kuwait for lesser offences.

The failure to hold a major war crimes trial after the 1991 Gulf War exposed a central problem of the laws of war. When a state is not willing to prosecute its own government leaders and officers, there is frequently no other practical mechanism for bringing alleged offenders to justice. It is not scarcely responsible to think in terms of some form of supranational justice being applied, when the power, the mechanisms and/or the will are lacking. Even when an opportunity for a trial presented itself, there was no rush to take action. When in August 1995 Lt.-Gen. Hussein Kamel, a senior Iraqi leader implicated as a war criminal, defected to Amman, there were not many calls for his trial. Governments were evidently more concerned to encourage defections from the Iraqi regime than to punish past misdeeds.

When a war ends, especially if it is seen as having resulted from an illegal and aggressive act by one side, or was characterized by widespread damage or looting, there is often a demand - which has a basis in the conventions - for reparations, compensation, and the return of stolen goods. Following this tradition, the UN Security Council, in the second paragraph of its Resolution 686 of 2 March 1991, demanded that Iraq:

"b) Accept in principle its liability under international law for any loss, damage or injury arising in regard to Kuwait and third States, and their nationals and corporations, as a result of the invasion and illegal occupation of Kuwait by Iraq;


d) Immediately begin to return all Kuwaiti property seized by Iraq, to be completed in the shortest possible period ".

The wording of this resolution implied that compensation was demanded principally on account of considerations of ius ad bellum - i.e. Iraq's initiation of the conflict by its invasion of Kuwait, and all that flowed from that. Iraq was considered to have state responsibility. This approach meant that it would not be necessary to show that all damage was directly committed by Iraqis as distinct from the coalition forces repelling them; nor that any Iraqi acts complained of were necessarily violations of the laws of war (ius in bello).

The idea of compensation was given flesh by the subsequent establishment of the United Nations Compensation Commission under the terms of Security Council Resolution 692 of 20 May 1991 This is based on the principle that Iraq is internationally responsible for its unlawful acts. By April 1995 2.6 million claims had been filed for a total of approximately US$ 174 billion. Since Iraq has so far been unwilling to sell oil, the only funds available to the Commission have come from the partial liquidation of Iraq's assets abroad.

Neither in the Iraqi case, nor more generally, are reparations and compensation necessarily an alternative to war crimes trials. Both paths can be pursued simultaneously, as they were, disastrously, in the 1919 Treaty of Versailles at the end of the First World War.

Some saw the post-war demands for reparations, and the sanctions on Iraq, as part of a great opportunity to shape a fair method of compensation, and a bold application of UN Charter procedures. The approach of seeking financial redress on the basis of state responsibility has some obvious advantages: matters can be settled in negotiations between states, sometimes relatively quickly. However, the fact of a country as a whole being held liable for the entire costs of a war is intensely problematic. It is likely to involve a whole population in paying for offences committed by a minority among them. The process of payment may drag out for decades and cause dangerous political resentments against those imposing the penalties. If submitting a few individuals to trial and punishment seems dangerously selective when a larger number may be responsible, punishing the whole population over a long period is open to the accusation of being indiscriminate.

The 1990-91 Gulf Conflict also raised important questions about neutrality. In different ways, the idea of neutrality has had a significant place in provisions regarding the implementation of the laws of war, including the provisions for Protecting Powers, and for action by the ICRC. Further, the idea that states can be neutral vis-is particular conflicts is fundamental to the laws of war; and 1907 Hague Convention V on Neutrality in Land War firmly associated neutrality with impartiality.

The whole idea of neutrality is undergoing significant change as a result of a number of factors, including the collective character of international action, especially sanctions, under the UN Charter. Following the Iraqi invasion of Kuwait in August 1990, various Security Council resolutions imposed a range of obligations on all states to take part in sanctions and even to provide a measure of assistance to the coalition military actions to enforce the blockade. Security Council Resolution 678 of 29 November 1990, which authorized the use of force, did not call on, still less require, all UN member states to take part in military action, but it did request them to provide appropriate support. Subsequently, some traditionally neutral states, including Switzerland and Austria, went so far as to permit overflights by US military aircraft. In summary, UN resolutions and the practice of states in the crisis suggested that there was still some space for neutrality in the sense of non-participation in hostilities, but less space for neutrality in the sense of complete impartiality.

The policy of the Swiss government regarding the Iraq-Kuwaconflict had an influence on debates within the International Committee of the Red Cross (ICRC) about the ICRC's status. The ICRC is of course one of the principal bodies concerned with monitoring implementation of the Geneva Conventions. Both Switzerland and the ICRC (which had always been a quintessentially Swiss body, and remains based in Switzerland) are committed to policies of neutrality, but the policies are not identical. In the wake of UN decisions, Switzerland - autonomously, as it is not a UN member - decided to apply wide-ranging economic and financial sanctions against Iraq. This may have fed Iraqi suspicions about the impartiality of the ICRC's operations. These events connected with the 1991 Gulf War form part of the background to a key change in the ICRC's status. On 19 March 1993, the ICRC and the Swiss government signed an agreement on the ICRC's legal status, in which the Swiss government recognized the ICRC as an international, rather than Swiss, organization. The ICRC has simultaneously become involved in various UN activities, including participation in the UN's Department of Humanitarian Affairs, established in March 1992. In this connection, the ICRC has had to specifically reiterate its independence and impartiality.

The developments described do not invalidate conceptions of neutrality, whether of states or of the ICRC, nor do they suddenly destroy the roles of neutral entities in application of the laws of war. What they demonstrate clearly is that notions of neutrality are changing. In a wide range of matters - including implementation of sanctions, conduct of military operations, and organization of humanitarian relief the UN framework has become more important than before. The UN may well not be neutral, or not be perceived as neutral, in a particular conflict. To some extent at least, the idea, enshrined in treaties, of implementation by neutrals may be becoming overlaid by the idea of implementation by UN-related bodies.

3. The Wars in the Former Yugoslavia since 1991

Ever since the Croatian part of the Yugoslav war began in dune 1991, the war in the former Yugoslavia has been characterized by extensive atrocities. Many acts - including the terrorization, killings and expulsions of civilian inhabitants in so-called "ethnic cleansing", and also the cases of rape - were violations of existing rules, whether those applicable in international or in internal conflicts, or those from the human rights stream of law. This grim fact can be explained in many ways, but high among them is that this is a war about state creation, in which a principal purpose of certain belligerents is to achieve an object which itself involves violations of the laws of war: expulsions of populations, and their replacement by other populations.

During the 1990-91 Gulf Crisis, some people had criticized the UN Security Council for not paying enough attention to laws of war issues m its various resolutions. In the Yugoslav crisis, Security Council resolutions from mid-1992 onwards drew attention to violations of the laws of war and demanded that they cease. For example, Security Council Resolution 764 of 13 July 1992 reaffirmed that all parties to the conflict are bound to comply with their obligations under international humanitarian law, and that persons who commit or order the commission of grave breaches are individually responsible. Two months later, Resolution 771 of 13 August 1992 called on states to collate substantiated information on violations of humanitarian law, and also said that if the parties failed to comply, then the Council would take 'further measures".

The London Conference on the former Yugoslavia of 26 and 27 August 1992 - a joint EC and UN initiative - echoed such appeals, decided to "take all possible legal action to bring to account those responsible for committing or ordering grave breaches of international humanitarian law", and announced that the Co-Chairmen "have undertaken to carry forward a study of the creation of an international criminal court ".109

When the belligerents paid no attention to these various statements, the Security Council in Resolution 780 of 6 October 1992 asked the Secretary-General to establish an impartial Commission of Experts to examine evidence of grave breaches of international humanitarian law in the former Yugoslavia. The five-member commission chaired by Prof. Frits Kalshoven of the Netherlands was created during October, and produced an interim report that was issued on 10 February 1993.

The decision to set up an international tribunal was influenced by the political and moral pressure, which was strong in many countries, to do something about Yugoslavia. Since the international community was unable to agree on any major intervention or other decisive action, the Tribunal was one of the few options left. Thus, on 10 February 1993 at a time of great demand for action over Yugoslavia, and on the same day that the Kalshoven Commission's interim report was issued, US Secretary of State Warren Christopher announced "a series of new steps that President Clinton has decided to take with regard to the former Yugoslavia''. In the course of announcing these he said: "The President is seeking the urgent creation of a war crimes tribunal at the United Nations to bring justice and deter further atrocities". Less than a fortnight later, in Res. 808 of 22 February 1993, the Security Council agreed in principle that "an international tribunal shall be established for ¿he prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991".

This led to the Report of the Secretary-General of 3 May 1993, which contains the Statute of what was to become the International Criminal Tribunal for the Former Yugoslavia, and also explains the reasoning behind its establishment. The report's rationale for establishing the Tribunal has several notable features. First, on a procedural issue, the report is defensive as to why the Security Council is involving itself in the setting up of the Tribunal, when the normal course would be "the conclusion of a treaty by which the States parties would establish a tribunal and approve its statute". It says, in a statement whose realism and sense of urgency cannot be faulted, that one disadvantage of the treaty approach is that "there could be no guarantee that ratifications will be received from those States which should be parties to the treaty if it is to be truly effective". This raises the question whether, if certain states would not ratify the treaty, they are likely to co-operate fully with the Tribunal as set up by the Security Council.

On the substantive issue of what the International Criminal Tribunal for the Former Yugoslavia might be expected to achieve, the Secretary-General's report of 3 May 1993, echoing Res. 808, seeks to justify the Tribunal largely in terms of its practical effect in relation to the ongoing conflict. In so doing it sounds naively optimistic:

"the establishment of an international tribunal would bring about the achievement of the aim of putting an end to such crimes and of taking effective measures to bring to justice the persons responsible for them, and would contribute to the restoration and maintenance of peace".

The "International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 " was finally established by a Security Council decision of May 1993, and was inaugurated in The Hague on 17 November 1993. With Judge Antonio Cassese as President, it has made progress in establishing itself generally, in drawing up Rules of Procedure and Evidence, and in preparing cases. Indictments were issued against Dusan Tadic on 13 February 1995, and against Milan Martic, Radovan Karadzic, Ratko Mladic and 21 others on 21 and 25 July 1995. By September 1995 a total of 43 people had been indicted, but it was very uncertain whether more than a very few would ever appear before the tribunal.

Despite the evidence of progress, it remains to be seen whether the International Criminal Tribunal for the Former Yugoslavia can fulfil the purposes indicated in the UN Secretary-General's report of 3 May 1993. In particular, it may be doubted whether there will be anything like a major trial of major leaders. Instead, there are likely to be trials of lesser figures, for example those who happen to have travelled to a country which was willing and able to arrest them and extradite them to The Hague. Alternatively, there may simply be indictments and arrest warrants which effectively confine those under suspicion to stay in states which do not co-operate with the Tribunal. The whole process will take years or decades, not months - a further reason why it is not necessarily wise to suggest that such a process is a preliminary to restoration of peace.

It was obvious from the start that achievement of the goals for which the Tribunal was established might be blocked by the following factors:

1. the probable need, in efforts to end the war, to negotiate with the very people who are wanted for war crimes, and to agree some kind of amnesty;

2. the problem of getting evidence which proves the guilt of specific named individuals - a far more difficult matter than proving in a general way that war crimes occurred;

3. the difficulty of getting suspects arrested and brought to The Hague - the statute having, probably rightly, ruled out trials in absentia;

4. the difficulty of getting witnesses to come to The Hague to give evidence, and of protecting them thereafter; and

5. the difficulty of getting adequate and reliable financial resources for what must be a very extensive process of investigation and trial, especially as the UN General Assembly has ultimate control over funding, and is anxious about the gravitation of powers within the UN toward the Security Council.

In respect of war crimes in the former Yugoslavia, there remains a role for national courts. There have been a few national trials already in connection with the Yugoslav events, including at least one such trial in Bosnia, and doubtless there will be more. The establishment of the International Tribunal does not do away with the requirement in the 1949 Geneva Conventions for all states to see to the punishment of grave breaches, wherever they occurred. However, Article 9 of the Statute of the International Tribunal confirms that "it shall have primacy over national courts".

The creation of the International Criminal Tribunal for the Former Yugoslavia has naturally given rise to pressures to treat with equal seriousness other offences in other places. One consequence has been a revival of long-standing proposals for the establishment of an international criminal court. As Theodor Meron put it in 1993:

"The establishment on an ad hoc tribunal should not stand alone, however, as a sole or adequate solution. The world has failed to prosecute those responsible for egregious violations of international humanitarian law and human rights in Uganda, Iraq and Cambodia. To avoid charges of Eurocentrism this ad hoc tribunal for the former Yugoslavia should be a step toward the creation of a permanent criminal tribunal with general jurisdiction. The drafting of a treaty on a permanent tribunal, on which work has begun by the UN International Law Commission, should be expedited, providing an opportunity to supplement the substantive development of international law by an institutional process''.

Although there are grounds for scepticism regarding the International Criminal Tribunal for the Former Yugoslavia, and its counterpart for Rwanda discussed below, its failure could be a great disaster. Governments, having willed it into existence, should be encouraged to co-operate fully with the Tribunal, not least in assisting it in gathering evidence, and in providing urgently needed material and human resources. In the event that there are peace agreements in former Yugoslavia involving some element of amnesty, it is not self-evident that outside powers in general, or the UN Security Council in particular, would necessarily have to be bound by the amnesty provisions of such accords: they might be able to decide that former war criminals who stepped outside former Yugoslavia could still be vulnerable to prosecution.

Questions concerning implementation of the laws of war by UN peace-keeping forces have arisen in several recent conflicts, including in Somalia and Rwanda, as well as in the former Yugoslavia. The presence of the United Nations Protection Force (UNPROFOR) in the former Yugoslavia from February 1992 onwards contributed to the world's awareness of war crimes there, and to the sense that something should be done about them. These forces often helped journalists to reach war zones, and their very presence made UN inaction in face of war crimes unacceptable.

One curious accusation concerning the role of UNPROFOR can simply be dismissed. The legal affairs department of Mcins Sans Frontis has accused UNPROFOR of violating the rules of war. This accusation seems to be based on a serious misunderstanding both as to the content of international law relating to armed conflict, and as to the fact that UN forces have up to now been clearly viewed as bound by such law, not least because the countries providing contingents are so bound.

A major question raised sharply by events in Yugoslavia is: Should UN peace-keeping forces gather information about war crimes, and/or arrest suspects? A similar question has arisen for the personnel of UNHCR and other agencies, for UN Human Rights Action Teams, and for European Union monitors. In the case of UNPROFOR, inasmuch as a clear answer has emerged, it appears to be that information on violations may be recorded and passed on, including by some national contingents through their own national authorities. However, it has not yet been made any part of the mandate of UN peacekeepers to arrest suspected war criminals and hand them over for possible trial. Sometimes UN peacekeepers have been passive onlookers at atrocities. There were accusations that UNPROFOR in general, and Dutch forces who were in place at the time, knew of atrocities committed against Muslim men in Srebrenica at the time of its capture by Bosnian Serb forces in July 1995 and did little. There have also been press suggestions that the governments of Britain, the USA and the Netherlands sought to play down the massacre.

Another question, no less difficult, is: Are UN peace-keeping personnel entitled to a special legal status under which, for example, any attack on them would be classed an offence against international law? The Security Council has passed numerous resolutions requiring belligerents to respect the special status of UN peace-keeping forces. In December 1994, the UN General Assembly approved the text of a Draft Convention on the Safety of United Nations and Associated Personnel. There are strong reasons for sympathising with this proposed convention. It responds to serious problems of attacks and hostage-taking. It has precedents in the protection given to impartial workers in the four 1949 Geneva Conventions and in the 1977 Protocols. Indeed, 1977 Geneva Protocol I already gives specific protection to the UN emblem. Like the 1949 Geneva Conventions, the 1994 convention will require states parties to follow an "extradite or prosecute" rule regarding alleged offenders - that is, those suspected of attacks on UN personnel. There may be difficulties in the application of this convention. Like so many treaties, it relies heavily on states being willing and able to take action against their own nationals. If this does not work, and UN forces then decide to take action themselves against alleged offenders, there is a risk of UN forces finding themselves parties to an armed conflict, in which case the convention would probably cease to apply, being replaced by the law of international armed conflict.This implies an important transition of the status of a peace-keeping operation, with broad policy ramifications.

The most important means of dealing with violations of the laws of war in the former Yugoslavia has probably been the threat and use of force by NATO in conjunction with the UN. It was violations of the UN-declared "safe areas", repeated obstruction of humanitarian relief, and then the atrocities and bragging accompanying the Serb capture of Srebrenica in July 1995, that led to a change of Western policy. The greater willingness of Western powers to use force was most evident in the "Operation Deliberate Force" bombing campaign of 30 August to 14 September 1995. This campaign involved moral ambiguities typical of warfare: however reluctantly, the NATO and UN forces operating in Bosnia were in a form of "co-belligerence" with Croat forces which were themselves, both in the Krajina and in Bosnia-Herzegovina, engaging in practices hardly distinguishable from so-called "ethnic cleansing". The NATO operation could not be expected to stop all atrocities in a peculiarly vicious war. However, it did perhaps lead to a degree of realization on the part of the Bosnian Serbs that verbal condemnations by outside bodies could actually lead to serious military action, which was contributing to the disastrous loss of Serb-held territory. Yugoslavia exemplifies the lesson that if outside powers seek seriously to change the practices of belligerents and to stop atrocities, they may have to be prepared to intervene militarily. In so doing they may find themselves working with dubious belligerents, and they may have to be prepared to exert serious pressure on co-belligerents as well as on more open adversaries.

4. Civil War and Humanitarian Intervention in Somalia 1992-95

Somalia was the first case in the UN era of a forceful armed intervention specifically authorized by the UN Security Council, and partly justified in terms of international humanitarian law, including the need to protect international relief and peace-keeping personnel. Security Council Resolution 794 of 3 December 1992 made several references to international humanitarian law, deploring widespread violations, and stating that the Council

"5. Strongly condemns all violations of international humanitarian law occurring in Somalia, including in particular the deliberate impeding of the delivery of food and medical supplies essential for the survival of the civilian population, and affirms that those who commit or order the commission of such acts will be held individually responsible in respect of such acts[...]"

The rest is history. It has involved several elements: first, the absence of any consistent effort to deal with the persons responsible for such acts; second, the pursuit of General Aideed, eventually abandoned; and third, the gradual emergence of a doctrine which seemed to privilege forces acting with a UN mandate. Following an attack on UN forces earlier, the UN got involved in the slaughter of civilians in the terrible incident in Mogadishu on 9 September 1993. The following day the UN military spokesman in Mogadishu, Major David Stockwell, was quoted as saying: "Everyone on the ground in that vicinity was a combatant, because they meant to do us harm. In an ambush there are no sidelines and no spectators". This appeared to be a broader justification than earlier ones based on earlier cases of Somali use of women and children as shields for gunmen. The whole story is a warning against using international humanitarian law as a basis for military intervention without thinking through exactly what is to be achieved and how.

5. International Conference, Geneva, August-September 1993

One effort to call for more effective implementation was the International Conference on the Protection of War Victims, held in Geneva from 30 August to 1 September 1993. The most important impetus for this conference was the need to do something about the widespread and flagrant violation of the laws of war in recent conflicts; another was the need for a partial substitute for two International Conferences of the Red Cross and Red Crescent that had collapsed due to problems over the representation of South Africa and of Palestine. Representatives of 160 states attended the Geneva conference. Like the Paris Conference on the Prohibition of Chemical Weapons four years earlier, the Geneva Conference tried to restore the sanctity of battered norms. Virtually all the recommendations in the conference declaration were on the subject of increasing the number of formal adherents to the existing rules of international humanitarian law, and improving the dissemination and practical implementation of those rules. The conference showed that the international community was largely bereft of convincing ideas about the application of international humanitarian law in civil wars. The declaration did require expert level follow-up meetings on implementation, the results of which were to be reported to the next Red Cross Conference and to the UN.

6. Rwanda 1994

The acts of genocide in Rwanda in the first half of 1994 required a response from the UN Security Council. It failed to secure the cooperation of states to take effective action to stop the killings, but in November 1994 it took steps to establish the International Tribunal for Rwanda. This was the first time that an international criminal tribunal had been established in respect of an essentially non-international situation. Successive articles in the tribunal's Statute encompass the crime of genocide; crimes against humanity; and rules of instruments governing non-international armed conflicts - in particular common Article 3 of the four 1949 Geneva Conventions, and 1977 Geneva Protocol II. In addition, many offences are also violations of the law of Rwanda. The establishment of this tribunal constitutes further evidence of a desire to bring massive human rights violations inside states, including in internal armed conflicts, within the ambit of international rules. The fact that the tribunal was established in pursuance of a request from the Government of Rwanda may increase the possibility of its getting sufficient local co-operation to be able to achieve significant results. However, there are grounds for nervousness. When on 8 November 1994 the Security Council debated the resolution establishing the Tribunal, the representative of Rwanda voted against, and expressed his country's dissatisfaction with the arrangements for the tribunal on grounds roughly summarized as follows:

1. Its competence is limited to events of 1994, whereas in fact there had been massacres in Rwanda since 1959, and the genocide there had been long prepared.

2. Its composition and structure is inappropriate and ineffective. It "would only appease the conscience of the international community rather than respond to the expectations of the Rwandese people and the victims of genocide in particular". The sharing of the office of Prosecutor, and the Appeals Chamber, with the International Tribunal for the Former Yugoslavia is unsatisfactory.

3. It risks dispersing its energy in trying not only genocide but also crimes that come under the jurisdiction of internal tribunals.

4. Certain countries which "took a very active part in the civil war in Rwanda " are able to propose candidates for judges and participate in their election.

5. Some of those condemned may be imprisoned outside Rwanda, and the countries concerned may have too much say in reaching decisions about the detainees.

6. Capital punishment is ruled out, whereas it is provided for in the Rwanda penal code.

7. The seat of the tribunal should have been in Rwanda rather than Tanzania.

Many of these objections resulted from fears that the international community, having failed to take decisive action during the time of mass killings, was only taking token action now. The very slow progress of the Rwanda tribunal to date risks confirming these fears, and undermining confidence in the tribunal both in Rwanda and internationally. Kenya's refusal to extradite those wanted by the tribunal, announced on 5 October 1995, added to the doubts.

Internal atrocities, including those in Rwanda, can also be addressed by national legal procedures, even in states not directly involved. This is part of a broader process by which internal atrocities are increasingly seen as international crimes. Thus the 1993 Belgian law on Crimes de Droit International includes provision for Belgian criminal jurisdiction over certain breaches of 1977 Geneva Protocol II, regardless of the nationality of the victim or perpetrator, or of where the offence was committed. In accord with this, on 29 May 1995 the Brussels prosecutors' office issued several international arrest warrants against persons involved in the atrocities in Rwanda.

1. Woodrow Wilson's Dilemma in 1914

The question of whether non-belligerent states should take an active role in seeing to the implementation of treaty-based humanitarian rules is not a new one. Countless such issues arose in two world wars. Such a case arose in August 1914, when the Counselor for the US State Department raised with the Secretary of State the question of whether, in view of the bombardment of Antwerp by a German military balloon, the United States should make a formal protest. He prepared two possible drafts, the first on the limited ground of endangering the lives of American citizens, and the second on the general ground of a violation of 1907 Hague Convention IV:

"The other draft based on the general ground of violation of the usages of civilized warfare would undoubtedly accord with the almost universal indignation expressed by the press of this country, which I believe in this case represents general public opinion. However strong may be the inclination to express abhorrence of such deeds, if we begin to make protests general in nature as to violations of civilized and humane methods of slaughter where are we going to stop"?

One week later President Wilson made a clear decision on this issue:

"My Dear Mr. Secretary:

I have thought a great deal about the matter of protest with regard to the dropping of the bombs and my present judgment is that we do not know in sufficient detail the actual facts and that we ought to be very slow to make formal protests, chiefly because we shall no doubt be called upon by every one of the belligerents before the fighting is over to do something of this kind and would be in danger of becoming chronic critics of what was going forward. I think the time for clearing up all these matters will come when the war is over and the nations gather in sober counsel again.

Cordially and faithfully yours, Woodrow Wilson"

Such an approach, largely influenced by the US anxiety to remain neutral, was hard to justify then, and would be hard to justify today. Yet the sense that making general protests about violations of the laws of war could be a difficult and complex business, full of pitfalls, and easier to start than stop, still rings true today.

A possible weakness of Woodrow Wilson's response is his assumption that when a war is over, matters relating to the laws of war can be cleared up: frequently they are quietly dropped as part of a settlement. Amnesties and waiving of legal claims are still very much part of statecraft. Thus in 1990, when the UK and Argentina restored full diplomatic relations, they dropped all claims between the two arising out of the 1982 Falklands War. In the Russian Federation in 1995, the negotiation of military and political agreements over Chechnya necessitated the Russians dropping their previous call for the arrest of the Chechen leader Dzhokar Dudayev.

2. Successors' Responses to illegal Acts of Previous Regimes

The ways in which violations of fundamental norms in many internal situations are handled, including by successor regimes, illustrates the complexity of the whole subject of enforcement. Sometimes such violations lead to judicial processes, but often they do not.

Terrible crimes occurred in South Africa in the apartheid years, and in many South American states in the 1970s, and Ethiopia in the 1980s. In these countries, successor regimes have taken very different approaches to the question of whether to prosecute. Decisions not to do so are naturally contested, but they reflect some serious considerations: that it is hard to pinpoint individual responsibility and invidious to select out a few for trial; that there were some mitigating circumstances at the time; that the quiescence or positive co-operation of those with overall political responsibility for the offences may be needed if the successor regime is to survive; that those who have lost power, privileges or jobs are perceived by the public to have suffered enough already; or that trials might reopen old wounds.

Similar considerations frequently apply as regards violations of the laws of war, m conflicts between as well as within countries. Decisions to prosecute, or not to prosecute, are frequently the outcome of complex political processes and calculations. We are very far from anything approaching a system where it can be taken for granted that offences will be the subject of trials.

3. One Alternative Vision

There are some grounds for scepticism about the idea that international bodies can apply a criminal law analogy to major violations of international norms. The idea that acts deemed to be crimes can and should be tried and punished in courts is a feature of all national legal systems, but its application on the international plane, as a means of enforcing the laws of war, is problematic. This is not to say that such efforts should not be made, but rather than they should not be seen as the sole or even principal means of implementation. Events in some major conflicts of the past two decades confirm the difficulties of the criminal law approach.

One might well therefore ask: What is the point in international norms, including the laws of war, if there cannot be a vigorous and consistent effort at international enforcement? Alfred Rubin has expressed one alternative vision of what the law is and how it may be implemented:

"International law is not a criminal law system; it is more akin to constitutional law, where enforcement rests on political counterpressures and foreseeable middle- and long-term reactions. A militarily organized movement that commits atrocities is likely to lose allies, unify its enemies, waste its energy in daring strikes of dubious military or political value, and ultimately turn on itself".

While this view of law may itself be tinged with too much optimism, it does highlight the truth that the means by which international norms are upheld are far more complex and wide-ranging than what is provided for in the conventions.


The demand for effective action to implement the laws of war is likely to remain very strong, and to be very difficult to translate into effective policies. The difficulties of ensuring compliance need to be understood better than they have been if effective action is to be taken. The following conclusions are offered in this spirit.

1. Realist and Idealist Images of the Laws of War

A fundamental question to be addressed is: Why have there been so many cases of massive, cynical violations of the laws of war in recent years, whether by Iraq in its occupation of Kuwait, or in many of the civil wars which have followed the break-up of states and empires?

An explanation may be that the laws of war have come to be seen as too idealistic - neither conforming to the facts of power, nor reflecting the interests of belligerents. Unfortunately, many of the advocates of international humanitarian law may have unintentionally contributed to such negative perceptions. There are dangers in a picture of the law as coming out of Geneva, as a gospel which needs merely to be disseminated and applied in the rest of the world. There may also be dangers in the excessive complexity of some contemporary law, and of the writing about it. It is desirable to see more emphasis on the idea that the law is intensely practical - that it represents, at least in part, a set of deals between professional soldiers, and bargains among states, and that its implementation can have consequences which are for the most part compatible with the interests of belligerents.

2. Still a World of States

For better or for worse, we live in a world of states, and in most cases the laws of war, like other parts of international law, must be implemented through national mechanisms of various kinds: deliberations in government departments, national laws, manuals of military law, rules of engagement, government-established commissions of inquiry, and courts and courts-martial. Often when these mechanisms are employed, it is not immediately obvious that what is at issue is the implementation of the laws of war. This is because an issue may well be formally expressed in terms of a violation of a national law, or of internal military discipline, or of an ethical code which is seen as in some respects national in character.

3. Humanitarianism as a Substitute for Policy

When states and international organizations not directly involved in a particular conflict are moved to demand better application of humanitarian rules in that conflict, they need to be very careful about the manner in which they do so. In particular, if they do not at the same time show some understanding of the positions and aspirations of the belligerents, and fairness in relating principles to complex situations, their efforts may backfire. In respect of the former Yugoslavia, for example, there have been several statements by leading Europeans demonstrating a remarkable lack of comprehension of the depth and seriousness of the conflict. There has been a lack both of serious analyses of the problem and of convincing policies on it. In these circumstances, the emphasis on humanitarian issues can easily seem, or even be, a substitute for policy.

4. Application to Non-International Conflicts

Since 1945, the main form of conflict in the world has been civil war. In some cases, these wars have involved outside armed forces as well. Many developments suggest that we are witnessing a move of opinion in favour of applying a range of rules, including some of the norms of conduct designed for international wars, to civil wars. Since 1945, the development of the idea of "crimes against humanity, the growth of human rights law, and the enactment of 1949 common Article 3 and 1977 Protocol II, have all pointed in this direction. So, more importantly, has much practice of such bodies as the European Court of Human Rights. With the establishment of the International Tribunal for Rwanda in 1994 the UN Security Council has sought to clarify the application of a wide range of international rules to internal conflicts. This process is bound to meet many rebuffs: it will mean little if the belligerents themselves do not get the message; it will be especially hard to apply m those civil wars which involve conflict of neighbour against neighbour, and where the important distinction between soldier and civilian breaks down. Yet the situation whereby civil wars were hardly subject, even in theory, to a body of international rules was an anachronism, the ending of which should not be mourned.

5. Mines

The issue of land mines is one on which the public outcry against inhuman and illegal means of conducting warfare is currently very strong and likely to remain so. In many uses, land mines violate the most basic principles of the laws of war because they kill innocent individuals during wars, and also kill and maim thousands even after wars have ended. There is room for honest disagreement as to whether or not their manufacture and trade can be completely prohibited However, the requirements under the 1981 Weapons Convention; Protocol II, to record the location of minefields, and to assist in their removal, need to be taken more seriously than they have been both during and after wars. The provisions of the Protocol could be strengthened in various ways. The Convention's review conference in Vienna in September-October 1995 failed dismally to produce further commitments on land mines. However, work to add specificity to the Protocol's provisions (especially as regards detectability and deactivation of mines) will certainly continue. So will efforts to improve the Protocol's implementation and to extend its scope of application. As a bare minimum its rules should be made formally applicable, and should be applied, in civil as well as international wars.

6. Limits of Compliance Provisions

The formal provisions for ensuring compliance with the laws of war, which are by no means necessarily the same as the actual processes which induce compliance, include requirements that states should: (1) instruct their armed forces in the relevant conventions; (2) enact any necessary legislation to punish grave breaches of the conventions, and in general to take necessary measures for the suppression of breaches; (3) hand over persons suspected of having committed grave breaches for trial in another state; (4) co-operate in designating states not parties to a given conflict as "Protecting Powers"; and (5) assist the activities of impartial humanitarian organizations such as the ICRC, and, if no Protecting Power system is operating, assist other impartial organizations or neutral states or, in certain cases, the International Fact-Finding Commission.

While aspects of the system crudely outlined above have been of considerable use, much of the compliance system thus outlined has scarcely worked at all, and shows few signs of doing so. It is therefore necessary, even while trying to make states honour their existing obligations, to be receptive to the possibility that much implementation may take a different form from that prescribed in the conventions. This has in fact been the case. A wide range of bodies and mechanisms, domestic and international (including, at times, the European Community/Union and the CSCE/OSCE) has assumed an unanticipated role in the implementation process.

7. Trials

In the pre-1945 history of the laws of war the issue of trials for major violations was not greatly emphasized, and indeed in some early agreements reparations are mentioned more. There was an assumption, overtaken by events of this century, that for the most part the governments of civilized states would be responsible for the implementation of the laws of war. The 1949 Geneva Conventions did make extensive provision for penal sanctions in respect of grave breaches, but these have been little used by states.

These arrangements leave unsolved the acute problem of the state or non-state entity which will not put its criminals on trial, or which indeed is headed by its criminals. This phenomenon, which aggravated the barbarity of some recent wars, especially those with a strong element of communal conflict, has necessitated a new approach to the issue in the form of the International Criminal Tribunal for the Former Yugoslavia. This approach is not likely to yield quick results on anything like the scale of the atrocities to which it is a response, but may in the long run have some small part in the restoration of battered norms. The consequences for the laws of war of raising public hopes and then seeing them dashed could be serious. The tribunal merits support, but at the same time there is a need for understanding of the inherent difficulties of the tasks with which it is entrusted.

The European Union has assisted in the funding of both the Yugoslavia and Rwanda tribunals. It has done so without much public declaration of moral and political commitment, or fully-elaborated rationale as regards the possible contribution of the tribunals to eventual political reconciliation. Both tribunals face extreme funding crises in view of the freezing of expenditures in the UN system. The European Union and its member states should urgently consider increasing their contributions and presenting a modest rationale for so doing. It would do no harm to recognize publicly that, for the kinds of reasons advanced in this study, the tribunals are only likely to have a minor impact on vast problems, and are not necessarily the most important mechanisms even for the limited objective of securing implementation of the laws of war. In particular, the European Union must neither let the International Criminal Tribunal for the Former Yugoslavia starve for lack of funds, nor let it suffocate under the weight of exaggerated expectations.

8. International Criminal Court

The proposal for an International Criminal Court, discussed at the UN for many decades, has attracted new interest in the wake of the emergence of the international tribunals for Yugoslavia and Rwanda. It is likely that the UN General Assembly will in due course approve the text of a treaty establishing such a court. Following such a decision, the process of ratification by states will take time.

Complex questions, including the scope of competence of such a court, have yet to be answered definitively. There is a strong case for such a court being set up initially with a primary purpose of dealing with issues relating to the laws of war. It could, in effect, extend the geographical scope of the two existing tribunals, on the former Yugoslavia and Rwanda. Within the area of the laws of war, its focus must inevitably be on exceptional and grave breaches: such a court should not undermine national responsibility for punishing breaches, nor should it get into the situation of being a "back-seat driver" engaged in continuous ad)udication on all uses of force.

Whatever institutional forms may develop, the important aim should be to create a situation in which political leaders and military personnel pursuing policies that constitute grave violations of the laws of war would always fear the prospect of court proceedings, be it through national, European or international courts. In the system of states as it exists today, many would be able to evade such proceedings by staying in a country sympathetic to their cause. The fear of trial may thus be significantly reduced. The idea of an International Criminal Court is thus not a complete substitute for other approaches to the question of implementation.

9. Reparations

The whole question of post-war reparations as a form of sanction requires careful reconsideration. Reparations, as in the case of those demanded from Iraq since 1991, are usually demanded from a state which has lost a war on the grounds of its responsibility for the outbreak of the war. They thus relate more to ius ad bellum than ius in bello, but may encompass an element of the latter. They have merits, including the fact that they involve a clear concept of state responsibility, and can sometimes be fixed relatively quickly in negotiations between the states concerned.

Is it wise to demand reparations, especially in the extreme form of payment for the entire costs of all damage caused by the war, and in cases where the repayment process would last for decades? The historical precedents of reparations are mixed. If reparations are seen as unfair, or are seen as part of a more general policy of economic strangulation and the cause of complete economic collapse, they may backfire. The case for reparations may be stronger in cases where the sanctions are applied at the same time as a credible assurance is given that they will be lifted as soon certain reasonable conditions are met.

10. The United Nations

Different parts of the UN system have long had an active role in shaping and interpreting laws of war agreements and relating them to particular issues. The General Assembly has in the past been particularly active in this sphere, sometimes producing a particularly heady mix of law and political opinion. Since the mid-1980s, starting in the Iran-Iraq War, the UN Security Council has acquired a role in the implementation of the laws of war which was only dimly foreseen in the conventions, and hardly at all in the UN Charter. It has investigated violations (Iran-Iraq War), imposed reparations (against Iraq over Kuwait), authorized an intervention one of whose purposes was to restore respect for humanitarian law (Somalia), authorized a major use of force to stop attacks on a "safe area" (Bosnia-Herzegovina), and set up international tribunals (former Yugoslavia and Rwanda). Most of these roles have not, so far, been conspicuously effective. They have involved the UN in upholding standards in circumstances in which it is exceptionally difficult to ensure their application, in which its involvement could be counter-productive, or in which the Security Council itself may be the subject of accusations of violations. While the UN's role has certainly contributed much to international awareness of the laws of war, there is a need to temper the optimistic arguments about implementation which were made, for example, at the time of the establishment of the Yugoslav War Crimes Tribunal and the more or less simultaneous proclamation of the "safe areas" in Bosnia-Herzegovina.

11. Barbarians?

Is there a case for reviving old and deplorably ethnocentric distinctions between "civilized" and "barbarian" countries? Not in this form. The problem is not that certain countries per se are barbarian, but rather that they have brutal leaders; or that they are involved in conflicts over state formation, including ethnic conflicts, that by their nature challenge the laws of war. What the old distinction between "civilized" and "barbarian" countries may valuably highlight is the sense that some problems concerning universal implementation of the laws of war are by their nature extremely hard to solve. There are strong and legitimate concerns, particularly in some post-colonial states, that the increased diplomatic attention to international humanitarian standards could have the unintended effect of providing the basis for external intervention, and even a new form of colonialism.

12. A Set of Professional Military Standards?

Despite the many ongoing attempts to strengthen the means of formal international legal redress against major war crimes committed by a state, there remains a strong case for viewing the laws of war as having thus far consisted principally of a set of internationally-approved national professional military standards, backed up by national military and civil legal systems, rather than as a system of international criminal justice. As in the 1990-91 Gulf Conflict, there can be powerful reasons for a state or coalition to apply the laws of war even in the absence of reciprocity by the adversary. Such an approach may contribute to the public acceptance of a military action, to the maintenance of internal discipline within the armed forces, to concentration on action against useful military targets, and to the unity of a coalition. While such a view of the laws of war can never completely displace other views which place more emphasis on reciprocity and on punishment of states violating the rules, it does have the merit of concentrating attention on what is practically achievable within our own societies and their armed forces.

13. Need to Keep Our Own Houses in Order

An important priority may have to be keeping our own houses in order both at the level of our own individual countries, and at the level of regional alliances, including NATO. In recent years the armed forces in many NATO member states have in fact devoted unprecedented attention to laws of war questions. One issue which presents a potential problem concerns the incomplete adherence to 1977 Geneva Protocol I. Now that the UK government is in process of ratifying the 1977 Geneva Protocols, only three NATO states France, Turkey, and USA) remain definitely outside the Protocol. The United States administration, having effectively applied parts of it in the 1991 Gulf War, is now engaged in a careful reconsideration of Protocol I. This is unlikely to lead to rapid US ratification of the Protocol, but it could contribute to the process of effective harmonization in NATO to secure improved common understanding and implementation of the laws of war generally and the Protocol in particular.

14. The Relation between Ius in Bello and Ius ad Bellum

The idea that the laws of war are applicable in armed conflicts irrespective of the righteousness of each side's cause is well grounded in tradition and logic. However, this does not mean that there is no connection between ius in bello and ius ad bellum. Recent practice confirms that observance of the laws of war impinges on the question of justification for war in many and complex ways. For example, the distinction between the US-led coalition and Iraq in the matter of observance of basic norms of conduct contributed strongly to the sense of the reasonableness of the coalition cause. In 1992 the UN Security Council explicitly included violations of humanitarian norms as part of its justification for the intervention in Somalia. In 1995 it was violations of safe areas, including the commission of atrocities by Bosnian Serb forces in Srebrenica and the shelling of civilians in Sarajevo, that led to the UN and NATO joint authorization of "Operation Deliberate Force ". Ultimately it is extremely hard to separate laws of war matters from the broader political issues from which they spring; and the use of military force against persistent violators may be one of the most important forms of implementation.

15. Taking Implementation Seriously

The many failures to find effective means of implementation in respect of violations of the laws of war in the past twenty years, coupled with a high level of rhetoric on the subject, have had deeply damaging effects. They have contributed to a view, quite widespread today, that the laws of war are virtually a dead letter, and can be ignored with impunity. Serious violations in one conflict, publicized but not checked by international reaction, have lowered international standards, making such violations more probable in subsequent conflicts.

A critical intellectual weakness which has seriously affected understanding and implementation of the laws of war is the almost complete divorce between two important schools of thought about security matters in the post-1945 period. On the one hand, theorists of deterrence (a concept not limited to its most extreme form, nuclear deterrence) have shown little interest in the laws of war; while on the other hand proponents of international humanitarian law have had little to say about deterrence of any kind, nuclear or conventional. It is not surprising that France, a country committed to an unusual degree to the idea of deterrence, has indicated that it is not acceding to 1977 Geneva Protocol I because of "the lack of consensus among the signatory states of Protocol I as to the exact meaning of the obligations they have undertaken so far as deterrence is concerned ". The questions of how to deter adversary states from initiating war, and how, during a war, to deter them from violations of the laws of war, are central to international security debates, and indeed to the achievement of humanitarian objectives. Such questions should not be neglected by proponents of international humanitarian law. Some developments in the past twenty years, including the severe attenuation of the right of reprisal in 1977 Geneva Protocol I, risk not only weakening deterrence, but also undermining what may still be one important means of implementation of the laws of war. Although there is bound to be a degree of tension between the idea of deterrence and the laws of war, there are also many areas of intersection between the two approaches. For proponents of the laws of war to neglect such areas is to risk consigning themselves to a position of doctrinal purity and practical irrelevance.

There is an urgent need for a much fuller and more reflective international study and debate on the whole question of implementation. Such a process should involve representatives of states, alliances and armed forces, as well as of the UN, the ICRC and other interested bodies. It should employ other methodologies beside those of law. It should take account of neglected and uncomfortable realities, including the continued role of reprisals, and of the use of force, in preventing or opposing major violations. It should recognize the importance, and also the pitfalls, of the UN's new roles regarding implementation of the laws of war. It should look critically at how well or otherwise particular rules emerge from the test of war, as well as judging the acts of warriors by a legal yardstick. Above all, it should be based on a frank recognition of the enduringly complex realities, the unremarked successes and the conspicuous failures of the implementation process.


Paolo Benevenuti

I. The United Nations and Humanitarian Law

The maintenance of international peace and security is a primary purpose committed by the Charter to the Organization of the United Nations.

In pursuing this main purpose, the competent bodies of the United Nations, according to Chapter VI of the Charter, are entitled to take some course of action in disputes or situations the continuance of which is likely to endanger the maintenance of international peace and security: the United Nations does not take sides against a party as such, but acts mainly by way of conciliatory instruments with the aim of inducing the adversaries to agree on a peaceful solution of their problems.

Moreover, according to Chapter VII of the Charter, the United Nations Security Council is also called upon to decide on coercive measures or to undertake enforcement actions against (some of) the hostile Parties if it ascertains the existence of situations of a much more serious nature, that is to say in cases of threats to the peace, breaches of the peace or acts of aggression. Such action may even assume the form of warlike measures.

If one considers the United Nations system, such as envisaged in the Charter, it is clear that, notwithstanding the solemn prohibition of the threat or the use of force in international relations, the event of a breach of the peace is considered very likely to occur. The drafters of the United Nations Charter appear conscious of the fact that it was unrealistic To eliminate the danger per se of armed conflicts by a mere normative statement (Art. 2, par. 4) and that they had to think up various means in order to avert that danger (Chapters VI and VII). In other words, the Charter, with great sense of reality, does not regard peace as a goal achieved once and for all, but as a result to be gained, day by day, in the engagement of the organization's concrete activity on the ground.

The very real risk of armed conflicts breaking out, notwithstanding efforts by the United Nations, was perceived clearly by the post Second World War international community. While the contra bellum system embodied in the Charter of the United Nations was being drafted, at a different diplomatic table, following an initiative of the International Committee of the Red Cross, the elaboration of the four Geneva Conventions for the protection of the victims of armed conflicts in bello was in progress. These Conventions, which are the core of the international humanitarian law now in force, were adopted on 8th august 1949, when the Organization of the United Nations was already on the scene. These Conventions, through a very detailed and ambitious normative system relating to the protection of the wounded, sick, shipwrecked, of prisoners of war and civilians, demand respect for international humanitarian law values in armed conflicts in all circumstances, while accepting at the same time, a broad concept of armed conflict and going as far as laying down - for the first time in an international convention - fundamental rules applying to armed conflicts not of an international character.

The choice, made in the forties, of producing efforts aimed at strengthening ius contra bellum and ius in bello simultaneously soon appeared to be of great shrewdness: it is a fact that a growing number of armed conflicts (both of an international and a non-international character) continued to plague the world after the United Nations began its work - indeed a self-restrained work, insofar as the Cold War confrontation prevented the United Nations from creating under Chapter VII of the Charter its own armed forces fit to undertake significant coercive and enforcement actions. United Nations policy was then characterized by the first practice of peace-keeping operations. Moreover, the bitter experience of post Second World War conflicts assumed such characteristics that the necessity of further developments of the Geneva Conventions were put to the fore. These new developments resulted in the two additional Protocols adopted in 1977 the first relating to the protection of victims of international armed conflicts, the second relating to the protection of victims of non-international armed conflicts.

In more recent years, after the end of the Cold War, old and new conflicts have continued to ravage different parts of the world with great violence, and with their heavy burden of victims, most of whom are civilians and persons belonging to the most vulnerable groups: elders, women, children, refugees and internally displaced persons. Moreover, in many other areas the risk of armed conflicts is present. Therefore the United Nations - no longer paralysed by the East-West confrontation has been compelled to commit its Blue Helmets to a level of action unprecedented both in quantity and in quality.

It is obvious that the presence of situations of the kind envisaged in Chapters VI and VII of the Charter calls (or is very likely to call) for the application of international humanitarian law under various profiles In other words, United Nations action contra bellum operates in situations in which international humanitarian law calls for the application of its in bello rules. It is commonly accepted that situations endangering peace or constituting a threat to the peace also call for current application of international humanitarian law at least insofar as it concerns the accomplishment of the duty to adopt, at different levels, preventive measures for ensuring its observance if, unfortunately, hostilities should break out.

In conclusion, there is every reason to believe that international humanitarian law has to play an important role from the point of view of the United Nations in situations falling within the organization's competence and envisaged in Chapters VI and VII of the Charter. Moreover, the growing relevance of international humanitarian law for United Nations bodies is underlined by the fact that the International Committee of the Red Cross in recent years has been granted consultative status with the organization,3 conducive to a closer network of relations between the two institutions.

The said relevance of international humanitarian law may result from various points of view which include the following:

a) In the first place, from the point of view of the United Nations Organization itself which is used to carrying out a concrete action, with its forces, in situations characterized by the presence or a high risk of armed conflict. It is rational to think - in general terms which need to be discussed and further specified - that the United Nations Forces as a whole, operating on the ground, in a theatre in which international humanitarian law is relevant, cannot escape international humanitarian law itself. These forces, in all of their elements, have to abide by international humanitarian law rules, insofar as their action falls materially within the field of application of such rules, if they are to take advantage, in turn, of humanitarian law's protective status in case a conflict should, as a matter of fact, break out.

b) In the second place, from the point of view of the reciprocal obligations of conduct with which the opposite Parties must comply during the conflict. It is an old and commonly accepted idea that the respect of the rule of law in armed conflicts helps to restore the status of peace, when the time for peace comes. One might therefore be lead to believe that ensuring observance of international humanitarian law by the parties in conflict could appear to the United Nations not only as a value per se - insofar as its purpose is to alleviate the sufferings of all human beings affected (or possibly affected) by situations of armed conflict - but also as an appropriate device aimed at keeping the ground prepared for regaining peace, in due time, through the organization's appropriate political efforts.

The following pages are mainly devoted to some remarks about the first of these two issues. In this context I wish to stress from now that the subject I am going to discuss has been enriched by a recent normative instrument: the Convention on the Safety of United Nations and Associated Personnel, adopted without a vote by the General Assembly with Resolution 49/59 of 9 December 1994. This Convention will inevitably attract my attention insofar as the field of application of international humanitarian law with regard to United Nations Forces may be remarkably influenced today by the current and delicate debate on the solutions adopted in this new instrument.

II. The failure of the UN in Constituting Enforcement Instruments and the Practice of the Security Council of Authorizing Enforcement Action by States

The management by the United Nations of situations of crisis involving the maintenance of international peace, has been characterized - as already mentioned - by the fact that the enforcement device considered in Art. 42 ff. of the Charter remained unachieved as a consequence of the Cold War era confrontation. The great powers, in mistrust of each other, were unable to conclude the special agreements which, according to Art. 43 of the Charter, were to make armed forces permanently available to the Security Council. And now too, notwithstanding the changing reality in the world's political balance, the fulfilment of the conditions permitting the United Nations, with forces under its command and control, to take prominent enforcement action against those responsible for threats to the peace, breaches of the peace or acts of aggression is not foreseeable. As the Secretary-General has recognized in the Supplement to the Agenda for Peace "neither the Security Council nor the Secretary-General at present has the capacity to deploy, direct, command and control operations for this purpose (enforcement action), except perhaps on a very limited scale it 8

The consequence of this set of circumstances consists in the fact that the United Nations, not being in the condition to intervene effectively in many international and internal conflicts flaring throughout the world, have in fact left the management of these crisis to the individual enforcement action of States operating extra organization, in the framework - you may say - of their traditional and reciprocal interpower relations to which international humanitarian law of armed conflicts naturally applies.

However, in some cases, the United Nations has divested itself explicitly of its competence in leading enforcement actions, and has instead "authorized" member States to undertake enforcement actions by use of force. Such was the case in Korea, in 1950, when the Security Council, by Resolution 82, recommended that Member States furnish assistance to the Republic of Korea as may have been necessary to repel the armed attack coming from North Korea and to restore international peace and security in the area. Such was again the case, in 1990, when the Security Council, by Resolution 678, acting under Chapter VII of the Charter, authorized a group of member States to undertake an enforcement action making use of "all necessary means" in response to the aggression perpetrated against Kuwait, in case Iraq should refuse implementation of Resolution 660 (1990) ordering its withdrawal from the Kuwaiti territory.

More recently, the Security Council, in situations characterized by some sort of current, but inadequate presence of United Nations Forces, has authorized groups of Member States to undertake enforcement action aimed at certain more specific goals. This is what happened in Somalia, when the Security Council, referring to Chapter VII, by Resolution 794 (1992) welcomed and authorized the offer by members States of an action to be taken, by use of all necessary means, in order to establish as soon as possible a secure environment for humanitarian relief operations.

Insofar as the case of Rwanda is concerned, the Security Council, by Resolution 929 (1994), welcomed the offer of member States to cooperate with the Secretary-General in order to achieve the humanitarian objectives of the United Nations in that devastated country through the establishment of a temporary operation under national command and control. Consequently the Council, acting under Chapter VII of the Charter, authorized member States to conduct such operation resorting to all necessary means until the United Nations Force (UNAMIR) was brought up to the necessary strength.

Again, in the case of Haiti, the Security Council acting under Chapter VII of the Charter, by Resolution 940 (1994), authorized member States to form a multinational force under unified command and control and to use all necessary means to facilitate the departure of the military leadership and the restoration of democracy in Haiti.

Insofar as the situation in former Yugoslavia and especially in Bosnia-Herzegovina is concerned, the Security Council, by various - you may say a burst of - Resolutions once again based on Chapter VII (I may recall numbers 770 (1992),781 (1992),787 (1992),816 (1993),824 (1993), 836 (1993), 844 (1993), 908 (1994) etc.), has authorized Member States, acting nationally or through regional agreements, to use force in order to ensure compliance with its measures of embargo and with its ban on military flights m that country's air space, to support the United Nations Forces in the performance of their mandate, including defence of personnel who may be under attack, and to deter attacks against the so called six "safe areas" created in order to guarantee protection to the civilian population endangered by the ethnic cleansing policy. The Member States concerned decided to take on those tasks acting under the cover of the North Atlantic Treaty Organization (NATO). Moreover, recently, the Security Council welcomed the deployment in Bosnia-Herzegovina of a British-Dutch-French rapid reaction force - which includes heavy artillery - fit to undertake an enforcement action of a military strength which it would have been impossible for UNPROFOR to express.

It seems obvious and it is generally acknowledged that the enforcement military actions carried out by States in the aforementioned cases, outside their national borders and in the territory of a foreign country, while being "authorized" by the United Nations (and therefore not qualifying as aggression or illegal use of force), do not differ in any way from traditional interpower intercourse involving use of armies, which naturally falls in the field of application - such as widely indicated in the Geneva Conventions and Protocols - of international humanitarian law and of international law of armed conflicts as a whole. Furthermore it is a most stable principle that international law of armed conflicts (ius in bello) applies in equal manner to all parties involved irrespective of any other consideration, including those considerations (even if coming from the United Nations) relating to the legality of the use of force and the objective of the use of force (ius ad bellum). The acting States are therefore under the duty to strictly implement international customary rules and those sets of conventional rules which are usually referred to as "Hague Law" and "Geneva Law" no additional problems seem to arise with regard to ordinary implementation of international humanitarian law.

I may stress that such a rational solution appears to be perfectly in tune with the provision now embodied in Art. 2, par. 2 of the recent 1994 Convention on the Safety of United Nations and Associated Personnel. This norm, in defining the Convention's scope of application, establishes that it "shall not apply to a United Nations operation authorized by Security Council as an enforcement action under Chapter VII of the Charter of the United Nations in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflicts applies".

There is no doubt about the fact that the rule in question - perhaps somewhat ambiguous in its wording if read in conjunction with the definitions contained in Art. 1 of the Convention - refers to the already mentioned enforcement operations conducted directly by third States, whose action, authorized by the Security Council under the coverage of Chapter VII, is intended to fill the gap left open by the failure to implement Art. 43. Such action is clearly carried out not by mutual consent, but against some of the Parties which have given rise to a situation qualified as a threat to the peace, a breach of the peace or an act of aggression, in order to force such Parties and subordinate their political will to the political will of intervening States and, after all, to the political will of the United Nations.

III. The Law of International Armed Conflicts and UN Enforcement Operations Under Chapter VII

Although in the previous section I have concluded in favour of the applicability of international law of armed conflicts to States' operations authorized by United Nations, I think one may well move a step forward. One may say that Art. 2, par. 2 of the 1994 Convention also embraces those operations undertaken by armed forces of the United Nations to be constituted, perhaps in a distant future, according to Art. 43 of the Charter, in order to empower the Organization to take enforcement actions under its direct command and control, in situations envisaged in Chapter VII: I mean missions undertaken without the consent of the adverse Parties concerned, but rather against them, in order to forcibly subordinate their will to the Organization's will.

In such cases undoubtedly one would be in the presence of United Nations operations authorized by the Security Council under Chapter VII of the Charter rather than in the presence of "United Nations operations", such as envisaged in Art. 1 (c) of the 1994 Convention, established by a competent organ of the United Nations (General Assembly or Security Council) "in accordance with the Charter". The latter expression is well apt to limit its meaning to United Nations "peace-keeping operations" which do not have a juridical basis in specific norms of the Charter: these simply developed in practice, having been established merely "in accordance with the Charter" for the purpose of maintaining or restoring international peace and security.

The suggested literal interpretation appears to be well in keeping with the conventional system. In fact, the logic of the recent Convention, taken as a whole, is clearly intended to limit its own applicability to those United Nations operations which may be broadly qualified as "peace-keeping operations". This expression includes, in addition to the management of existing conflicts in view of maintaining a feeble peace and restoring peace, elements of preventive peace-keeping and post-conflict peace-keeping (that is peace-building) in view of maintaining and solidifying peace: at times, there may be some overlapping among these elements. In short, the case of United Nations peace-enforcement operations conducted by use of arms against a party as such, in order to coerce its will in view of imposing peace, appears to be, in line with its Art. 2, par. 2, outside the aims of the Convention.

Furthermore, if one considers its Preamble, one may note that the Convention was drafted in view of facing problems arising precisely in the framework of the current United Nations operations experience (that is to say a broad peace-keeping experience): the contracting States indicate that they have been lead to negotiate by the deep concern over the growing number of deaths and injuries resulting from deliberate attacks against United Nations and associated personnel (consideranda 1) and the recognition of the inadequacy of existing measures of protection (consideranda 6).

Besides, the Preamble recalls the contribution of United Nations personnel to United Nations efforts in the ''fields of preventive diplomacy, peace-making, peace-keeping, peace-building and humanitarian and other operations" (consideranda 4). The avoidance of any specific reference to peace enforcement actions deserves to be noticed, even though the list is admittedly not exclusive.

Moreover, the Preamble underlines the importance of the consent and co-operation of the host State and of the comprehensive support of all others on whom such personnel may rely for an enhanced conduct of its operations (consideranda 8). It is therefore clear that such operations are not envisaged by the negotiating States as being coercive operations directed against a Party as such. They are carried out - one may after all say - in the supposed (balance of) interest of all Parties in conflict (and also in the common interest of the international community).

Having drawn such general lines, the attitude of impartiality required by United Nations peace-keeping operations and clearly envisaged in Art. 6 of the new Convention - which calls United Nations personnel to respect the laws of the host State and to refrain from any action or activity incompatible with the impartial and international nature of its duties - appears to be consequential.

The fact that United Nations military operations established under Chapter VII of the Charter and directed against a party in conflict, are excluded - according both to a literal and to a systematic reading - from the field of application of the 1994 Convention purports, as consequence stressed by Art. 2, the applicability of "the law of international armed conflicts". This is a much more convincing solution insofar as it appears consistent with basic principles of international law.

I may recall the principle of effectiveness, indeed so relevant from many points of view in international law generally and in international law of armed conflicts in particular. United Nations enforcement operations do not differ from actions conducted by a military coalition warring against an adverse Party: if one considers the factual situations calling for the applicability of international law of armed conflicts, nothing changes if an operation is conducted against an adverse party by a State directly, by a coalition of States, by a coalition of States by means of a regional organization, by States or regional organizations authorized by the United Nations, or by the United Nations under its own command and control, acting - according to the significant expression of Art. 24 of the Charter - "on behalf" of the Member States.

Moreover, one should consider the strict logic of principles of international law relating to the transfer of functions and activities by States to international intergovermental organizations: states cannot confer functions to intergovernmental organizations in such a way as to elude their own international obligations deriving from treaties and custom in force. Therefore, if States in international relations delegate the use of armed force to an international organization and even contribute troops to such organization, it follows that the organization in question must abide by international law of armed conflict when it acts through its own armed forces in substitution of the armed forces of States. One may also conclude, reciprocally, that United Nations missions are guaranteed by the protective rules of humanitarian law. That is to say, United Nations military forces carrying out enforcement actions "on behalf" of States are under the duty to respect international customary rules and those sets of conventional rules which are currently referred to as "Hague Law" and "Geneva Law" and at the same time they enjoy the rights provided for in return.

In other words, the compliance with international humanitarian law by United Nations Forces authorized to carry out an enforcement action is just the obvious and direct consequence of the fact that States being parties to the Organization have to comply with international humanitarian law if they undertake a similar action directly.

It is worth observing that the contents of international humanitarian law binding upon United Nations Forces are in the first place those deriving from customary law. But one cannot exclude the relevance for the United Nations Forces of those substantive rules which are confirmed in conventions adopted by Member States at a universal level. In fact, the United Nations have undertaken the general commitment to solve international problems of humanitarian character and to promote respect for human rights (Preamble, Art. 1 and 55). In addition, all members have pledged themselves to take joint and separate action in co-operation with the organization for the achievement of such purposes (Art. 56, the wording of which is after all drawn upon by Art. 89 of Protocol I). Substantial conventional rules adopted at a universal level may be seen to be simply the historical specification of that general and, at the same time, binding commitment undertaken through the Charter. Undoubtedly United Nations Forces must carry a very strong political and juridical responsibility if the credibility of the general and solemn aims enunciated in the Charter is to be upheld.

The immediate corollary of such a principle is that enforcement action conducted by the military forces appertaining to an international organization which is not in compliance with international humanitarian law leads to the international responsibility not only of the organization - insofar as it is considered to be a juridical person distinct from Member States -, but even of the Member States of the organization, at least insofar as they have not done all that is reasonable in order to ensure that the organization's forces abide by international humanitarian law.

I believe it is also appropriate to observe that the importance of the quoted Art. 2, par. 2 goes beyond the general affirmation of the applicability of international humanitarian law of armed conflicts in the situations envisaged above. It deserves to be further underlined insofar as it recognizes that in case of an enforcement action conducted by third States or by United Nations Forces on behalf of States, "the law of international armed conflict applies". It extensively envisages all situations, including situations of conflict between insurrectionist movements and governmental forces, provided that the nongovernmental Party acts through "organized armed forces". The latter is the case in various concrete situations I have mentioned before (from Yugoslavia, to Somalia and Rwanda), in which the Security Council explicitly stated that it was acting under Chapter VII of the United Nations Charter and drew the attention of States to the obligation to respect and ensure respect for international humanitarian law (broadly indicated by reference to the Geneva Conventions) as well as to the principle of individual criminal responsibility of perpetrators of grave breaches.

I also wish to recall, in this context, that the presence of "dissident armed forces or other organized armed groups" determines the material field of application of Protocol II additional to the Geneva Conventions relating to the protection of victims of non-international armed conflicts (Art. 1, par. 1). According to Art. 2, par. 2 of the 1994 Convention, a third State Party or a United Nations Forces intervention in a conflict between governmental forces and dissident armed forces or other organized groups excludes the mere reciprocal applicability of the low level rules of Protocol II. On the contrary, it requires all Parties, on account of the given factual situation, to apply the law of international armed conflict to its largest and most developed extent, internationalizing, you may say, what was initially an internal conflict. Moreover, there is a further element displayed by the rule contained in Art. 2, par. 2 of the 1994 Convention: it does not require nor asks for the fulfilment of the condition, relevant from the point of view of the material field of application of Protocol II, that such organised armed forces "exercise such control over a part of the territory as to enable them to carry out sustained and concerted military operations ".

IV. The Alternative Experience of Peace-keeping Operations

The United Nations, taking note of the difficulties encountered in implementing Chapter VII of the Charter insofar as enforcement actions to be carried out through a United Nations permanent army are concerned, developed the experience - alternative one may say, but in fact they may co-exist - of operations entrusted to the aforementioned "peace-keeping forces", in accordance with a denomination largely accepted within United Nations practice itself.

Forces of this kind, used to prevent, manage, or resolve conflicts, are not specifically mentioned in the Charter, but the competence of the United Nations to establish them - notwithstanding some doubts initially expressed by some States - is not contested. The International Court of Justice itself, when questioned about their legitimacy, affirmed that "it cannot be said that the Charter has left the Security Council impotent in face of an emergency situation when agreements under Art. 43 have not been concluded

Usually, the basis of their establishment and action is sought within the framework of Chapters VI or VII of the Charter, depending on the circumstances and context in which they are called to operate, and sometimes a "Chapter VI and a half" has been referred to. I believe that, insofar as the specific regulation of peace-keeping forces escapes specific rules, it is proper just to say that their basis is to be found mainly in practice which entered those gaps which were left open by the explicit rules of the Charter and by its Chapters VI and VII especially. The distinctive features of these forces - supposing one may refer to them as a class - may be highlighted by reading both the United Nations resolutions which have established these operations and the agreements reached with contributing States and possibly with host States on the status of United Nations missions, as well as in the reports on the missions activities prepared by the Secretary-General, to whom the executive direction of the operations is usually entrusted under the overall political direction of the Security Council.

In conclusion one may simply say, in line with Art. 1 (c) of the 1994 Convention on the Safety of United Nations and Associated Personnel, that such United Nations operations are in general terms established "in accordance with the Charter" they are deployed in situations in which one may invoke either Chapter VI or Chapter VII; the competence of the Security Council alone or, in addition, of the General Assembly as well in setting them up depends upon the Chapter invoked.

Inasmuch as it is established in the light of the exigencies of each specific case and, moreover, m an international reality in constant and sometimes pronounced change during five decades of United Nations activities, each one of these missions should be perhaps considered to have features of its own, even though some basic common parameters tend to repeat themselves, possibly with some variant shapes.

Peace-keeping forces are set up by the competent organs of the United Nations by using contingents subject to the command and control of the United Nations: they truly are forces of the United Nations. The direction of the operations is entrusted, as already mentioned, to the Secretary-General who operates under the general political guidance and control of the Security Council. It is the Secretary-General's duty to appoint (and dismiss) the Commander in the field, that is to say the head of the mission.

Besides, peace-keeping missions are made up of national contingents placed by States voluntarily at the disposal of the United Nations for a specific operation. In function of political considerations, the Security Council decides which Country's offer to accept. Until the end of Cold War, it was considered preferable to exclude the participation of troops belonging to the permanent members of the Security Council, so as to moderate, as far as possible, the friction of regional conflicts in the spheres of influence of the superpowers.

Furthermore, these forces may have a more or less complex structure, whether from the point of view of the numbers of United Nations personnel involved (they may consist of small units as in some cases of international observer missions for the monitoring of a truce line, as well as of large units, as in Cambodia, Somalia and former Yugoslavia) or from the point of view of the type of personnel composing them: military personnel may stand side by side with civilian police and/or international civilian personnel in the case of multifunctional peace-keeping operations. The plurality of personnel composition of a mission is obviously connected with the complexity of its mandate which varies greatly depending on the different situations envisaged - situations which, I repeat, may relate to international conflict or domestic crisis endangering peace or constituting a threat to the peace or a breach of the peace: deployment in situations preceding armed conflict, in the course of armed conflicts with all their variables, or following the end of an armed conflict in view of regaining a more stable civilian order (peace-building). These situations may sometimes overlap with each other and slip from one to the other and back again.

The tasks of the United Nations peace-keeping forces have increased especially in recent years, so that operations of low and high complexity now co-exist. It may happen that peace-keeping forces have no combat mission and that their main function is to prevent the resumption of hostilities in certain areas in fulfilment of a purely international, "static" mandate consisting in the observation and separation of combatants along a more or less demarcated boundary.

But frequently, especially in situations connected to a civil war, it has been necessary to organize multifunctional "dynamics" and assertive operations with some protective tasks but also aimed even at the reconstruction and working of fundamental State functions on the basis of proper democratic and humanitarian principles in the context of a comprehensive post-war settlement.

In summary, depending upon the circumstances, United Nations Forces may have one or more mandates including the supervision of cease-fires and control over buffer areas, together with the regroupment and demobilization of forces and their reintegration into civilian life; the disarmament of military and paramilitary forces and the destruction of their weapons together with the drawing up and implementation of mine clearance programmes; repatriation and resettlement of refugees and displaced persons; humanitarian assistance and securing safe conditions for its delivery even during continuing warfare such as by way of humanitarian corridors; protection of the civilian population in designated safe or protected areas; supervision of existing administrative structures; training of new police forces; promotion, monitoring and protection of human rights; control over and reporting about respect for international humanitarian law; drawing up and supervision of constitutional, judicial and electoral reforms; observation, supervision and even organization and conduct of fair elections; co-ordination of support for economic rehabilitation and reconstruction: all these are tasks in which from time to time peace-keeping operations are engaged, according to an approximate list of responsibilities drawn from completed and ongoing missions, which does not exclude further responsibilities in the future if the necessity of coping with new problems should arise.

One may observe that United Nations missions are set up ad hoc with the consent of the Parties concerned in the crisis, especially the Parties controlling the territory of deployment: the consent of the territorial State of course, but also the consent of the other parties to the conflict, even if these should be non-governmental, as in the case of civil strife. One may specify that when the Security Council establishes the mission acting under Chapter VII of the Charter the Parties involved are obliged to give their consent.

If the requirement of the consent of the Parties (governmental and non-governmental) to the deployment of peace-keeping forces is usually considered important, it may however occur - and problems are likely to arise in such situations - that the consent given is not sufficiently convinced or clear. Sometimes, instead of an explicit consent, there is an absence of refusal. Moreover, in the course of the operation the Parties' attitude towards the United Nations Forces may change, notwithstanding the original consent: that is to say that sometimes, in practice, a reluctant party may put forth obstacles to the carrying out of the mandate of the United Nations Forces as deployed. Besides, it may occur that the mandate is modified in the course of the operation and turns out to be broader if compared with the mandate to which the original consent referred. The Secretary-General had observed, recalling the case of Somalia and Bosnia-Herzegovina, that there have been aspects of the mandates that have led to forfeit the consent of the Parties (and to behave in a way that was perceived as being partial and/or involving the use of force for reasons other than in self-defence): he refers to the tasks of protecting humanitarian operations during continuing warfare, protecting the civilian population in designated safe areas and pressing the parties to achieve national reconciliation at a pace faster than they were ready to accept. In such cases, existing peace-keeping forces were given additional mandates that required the use of force and therefore could not be combined with existing mandates requiring the consent of the parties, impartiality and the non-use of force.

And it is precisely the attitude of impartiality between the opposite sides which is commonly indicated as a further characterizing feature of United Nations peace-keeping missions: the Secretary-General reaffirmed such a requisite in the addendum to the Agenda for Peace. Peace-keeping forces have to comply with mandates which are not usually intended to be against a party as such: I note that the safe areas concept itself in Bosnia-Herzegovina has been construed, at least according to the Secretary-General's opinion, as giving the United Nations a humanitarian mandate under which the use of force is authorized, but solely for the limited and local purpose of protecting the civilian population in the face of ethnic cleansing and not to bring the war to an end. However - as already mentioned - it may occur that the attitude of impartiality in some cases, as in Somalia or in former Yugoslavia, in the course of the operation may weaken insofar as one Party prevents the United Nations Forces from pursuing the mandate entrusted to them: the situation may become troublesome in situations in which the mandate at a given moment turns out to be in contrast with the war aims of one of the parties, as unfortunately may be the case when relief to a particular population is concerned, and warring Parties make it difficult or impossible for the United Nations to operate. Then it may happen that the United Nations Forces cross the "Mogadishu line" combining strict peace-keeping with some sort of peace enforcement against one party, albeit in the context of the defensive mandate conferred to it.

In the light of the fact that they are impartial in principle, these forces - once again in principle - pursue their aims peacefully. Some missions, such as UNTSO, may actually consist of unarmed military observers only; and obviously unarmed are purely civilian missions such as the first mission established by the General Assembly in Haiti (MICIVIH) in 1993 (Res. 47/20B). In all events, United Nations military personnel is usually equipped basically with light weapons of defensive character to be used at a minimum standard, only in self-defence. One should however take note of the fact that the concept of self-defence has in some cases been understood in a wide sense, i.e. including the protection of the Mission's mandate and effective defence against all those who want to prevent it from being carried out. Nevertheless, I note that the delivery of humanitarian relief itself, and enforced disarmament even more, require adequate control of territory, consequent rules of engagement and capable forces with specific military functions and skills. In such cases the United Nations Forces are in fact called to play an assertive role and are armed not only with strict self-defence light weapons, but with heavier arms as well.

A much greater challenge to impartiality, with the difficulties that follow, probably arises when peace-keeping operations intersect, as currently in the case of former Yugoslavia, with military enforcement conducted under the authorization of the Security Council by third States against some of the warring Parties in view of supporting the United Nations mission in the performance of its mandate (see Security Council Res. 836 (1993) and 958 (1994), insofar as UNPROFOR is concerned). Such actions are conducted by States following the request of the Secretary-General and the assent of the Chief of the mission in the field: Resolution 958 (1994) states that the authorization to Member States acting through regional organizations or arrangements is given "under the authority of the Security Council and subject to close coordination with the Secretary-General and UNPROFOR". It is clear that the impartiality of peace-keeping operations becomes truly problematic (as the element of the consent of the parties in the field may become little more than a phantom) and that peace-keeping operations may appear, in fact, to be an element of a wider set of enforcement measures carried out by United Nations and States as a whole.

I may add that the presence of United Nations sanctions against some of the Parties in the field may further complicate the impartial role of peace-keeping operations.

It is not the object of my study to face all the issues relating to peace-keeping operations per se. My purpose is limited to highlighting some fundamental elements which may turn out to be relevant in relation to the applicability of international humanitarian law in the framework of peace-keeping operations

In the first place, United Nations peace-keeping forces, as deployed in situations envisaged in Chapters VI or VII of the Charter, in principle - notwithstanding the presence of military elements - are not intended to take sides against one or more of the parties involved as such. Their purpose is not that of becoming a party to the dispute, even in cases in which the conflict flares around them: they are, as someone used to say, "soldiers without enemies". From this point of view, United Nations personnel - I refer now to military personnel especially -, in entering into situations characterized by the presence to a greater or lesser extent of an armed conflict, does not automatically acquire combatant status and cannot be considered to be the legitimate target of an armed attack. United Nations personnel - UN civilian and police personnel by definition, but UN military personnel also - appears rather to make up a category of protected persons not considered as such by the general instruments of international humanitarian law now in force.

In short, as they are on the scene of a conflict, they are inevitably touched by international law of armed conflict, but not - in principle by that set of norms which relate to combatants or more generally to persons directly participating in hostilities. But this, as I have indicated, is the situation in principle. In fact, - as we will see later - whether one becomes (whether components of United Nations peace-keeping operations become) a party to a conflict or not is not an abstract concept, but a factual issue which does not depend exclusively on individual choice. It also depends on the concrete action of the adversary, insofar as, notwithstanding one's wish to remain impartial, one might become involved in the conflict: a State being the object of an aggression, for example, would have preferred not to be involved in a conflict, but, unfortunately, reluctantly, it is a party to the conflict.

Secondly, one may observe that the reality of peace-keeping is a very articulated and multiform one and that consequently the solution to the problems relating to the applicability of international humanitarian law rules is probably conditioned by such complexity. One may well note that the relevance of international humanitarian law has to take various elements conditioning the applicability of specific sets of rules into account: different categories of personnel involved in the mission, types of operational tasks, more or less static or assertive mandates, types of military forces used and level of force envisaged, interstate or internal context of the mission, degree of the consent of the Parties in the field to carrying out the mission etc.

V. The 1994 Convention on the Safety of United Nations Personnel as an Instrument Proscribing Attacks Against United Nations Missions in the Framework of Ius ad Bellum and the Contextual Recognition of the Applicability of Ius in Bello

The view according to which United Nations Forces acting in peacekeeping are not intended to be - in principle - parties to a conflict is well envisaged in the Convention I have previously quoted on the Safety of United Nations and Associated Personnel.

In a rough summary, I may observe that Art. 7 - which constitutes the central substantive norm of the Convention - rules, in par. 1, that United Nations personnel, their equipment and premises shall not be made object of an attack or of any action that prevents them from discharging their mandate. One may well assume that, following the breach of this obligation, the Party from whom the attack comes is to be considered responsible, according to a general and basic principle of international law.

But, furthermore, the Convention explicitly provides for the individual penal responsibility of those persons who have organized, ordered, committed an attack or attempted to commit an attack. In fact, according to Art. 9, attacks against United Nations personnel shall be made crimes under the national law of States parties to the Convention: a crime which each State shall make punishable by appropriate penalties taking into account its serious nature. State Parties are also under the duty to take all measures necessary in order to establish a wide jurisdictional fan, so that each State will prosecute the alleged offender present on its territory, unless it prefers to extradite him to another State accepting criminal jurisdiction according to the jurisdictional links provided for by the Convention itself.

It is a solution in which one may perhaps hear the echo of historical precedents such as the Security Council resolutions on Somalia, especially Res. 837 (1993), which followed the premeditated armed attacks launched by forces apparently belonging to the United Somali Congress against the personnel of UNOSOM II on 5 June 1993.

From the normative system the lines of which I have very briefly described, one may observe that the basic ratio of the Convention does not appear to be that of an instrument appertaining to ius in bello. Insofar as one is faced with a prohibition to launch attacks against United Nations peace-keeping forces as such - I would say against the United Nations as such -, its raison d'etre resembles rather that of an instrument which one may define as appertaining to ius ad bellum. The aggression to United Nations Forces as a whole is formally forbidden: such an attack resembles a crime relating to the illegal use of armed force in international relations, i.e. the aggression against a State as such or, even more, against a State having an internationally protected neutralized status (crime against peace), rather than an attack in the framework of an armed conflict against the civilian population and individual civilians, which is considered to be a war crime by international humanitarian law instruments (Protocol I, Art. 85).

In connection with the previous remarks one may note that the Convention in referring to attacks against United Nations personnel does not qualify them as war crimes, according to the terminology used in Protocol I Additional to the Geneva Conventions of 1949 (Art. 85, par. 5), but rather, simply, as "crimes". However, one could observe that the use of the latter term may relate also to the fact that an attack may take place in situations which you cannot qualify as an armed conflict; and, moreover, if attacks against United Nations Forces usually come from "organized armed forces", it may also happen that attacks come from individuals or groups of individuals not constituting "organized armed forces" and are therefore again outside the framework of an armed conflict in a strict sense.

Having concluded that the Convention of 1994 is devoted to prevent attacks against the United Nations in the logic of ius ad bellum, the problem of the status of United Nations Forces in the framework of ins in bello, especially in cases in which, notwithstanding the prohibition of carrying out attacks against them, United Nations Forces become involved to a greater or lesser extent - albeit illicitly - in an armed conflict, remains open.

In fact, the Convention of 1994 itself suggests on first reading that international humanitarian law has to play a role. Its articles 8 and 20 are significant in verbin this respect. Art. 8, while affirming the duty to release and promptly return captured or detained United Nations personnel, specifies that 'pending their release such personnel shall be treated in accordance with universally recognized standards of human rights and the principle and spirit of the Geneva Conventions of 1949". Art. 20 contains a "saving clause" by which nothing in the Convention shall affect "the applicability of international humanitarian law and universally recognized standards of human rights as contained in international instruments in relation to the protection of United Nations operations and United Nations and associated personnel or the responsibility of such personnel to respect such law and standards ".

I will dwell upon the proper significance of these rules after recalling the row of "precedents" and the related conceptual evolution concerning the applicability of international humanitarian law in the framework of peace-keeping operations.

I now simply wish to stress - in the light of the articles in question the general conclusion according to which international humanitarian law is applicable to peace-keeping operations - at least to the extent which will be clarified more specifically in par. 8 - while, in the meantime, observing that international humanitarian law is set on a conceptual plane which according to the Convention is parallel to the conceptual plane on which the prohibition to carry out attacks against peace-keeping forces is set.

I also want to draw attention to the joint reference to international humanitarian law and human rights instruments. Insofar as this aspect is concerned I wish to point out that - as I wrote at the beginning of this study - the deployment of United Nations peace-keeping forces may take place both in situations endangering peace or constituting a threat to peace, in view of avoiding armed conflicts and maintaining peace, or in situations of armed conflict, in view of restoring a status of peace. In other words, United Nations peace-keeping forces usually act in areas in which human rights law and humanitarian law border upon each other and may even overlap, as is the case concerning those fundamental rules relating to the protection of human beings which apply equally in war and peace time (such as the prohibition of torture), or in the case of those rules of international humanitarian law which create preventive duties of implementation which must be honoured even in peace time, when the law of human rights is properly applicable. Depending upon the material situations involved, human rights rules or humanitarian law rules apply to United Nations missions imposing active and passive juridical subjective situations - rights, obligations, powers, faculties, burdens etc. - upon them.

VI. The Applicability of International Humanitarian Law to Peace-keeping Operations in the Light of General Instruments of International Law

I shall now examine the precedents I referred to in the previous paragraph in order to trace the conceptual evolution concerning the applicability of humanitarian law in the case of deployment of United Nations peace-keeping forces in territories where a potential or actual conflict exists. First, however, I want to make a few remarks concerning general instruments of international law.

The issue I am discussing was not dealt with when the Charter of the United Nations was being drafted insofar as peace-keeping forces were invented later in the course of United Nations activities. In fact, documents and records of the debates held in San Francisco do not even deal with the problem of the conduct - from the point of view of the law of armed conflicts - of United Nations Forces acting in armed enforcement against an aggressor on the basis of Chapter VII, Art. 42 ff. of the Charter. But one could assume that such an issue was not discussed, because it was unquestionable - according to the remarks proposed in previous paragraph 3 - that international law of armed conflicts strictly applies in such situations.

When the contents of the Geneva Conventions were discussed and adopted in 1949 the question of the relations between international humanitarian law and United Nations Forces was once again neglected. In the course of the negotiation preceding the adoption of the Hague Convention of 1954 for the protection of cultural property in the event of an armed conflict the issue was addressed, but no provision was introduced in the final text. The intergovernmental Conference, however, adopted Resolution I, according to which "The Conference expresses the hope that the competent organs of the United Nations should decide, in the event of a military action being taken in the implementation of the Charter, to ensure application of the provision of the Convention by the armed forces taking part in such action ". It is a significant statement insofar as it demonstrates a governmental opinion according to which no structural obstacle prevents United Nations Forces from applying and from being under the duty to respect the rules contained in the Convention.

Similarly, in 1977, no specific provision on the subject was adopted in the Additional Protocols, notwithstanding an initial attempt by the International Committee of the Red Cross to stimulate interest on this issue in the debate. Nevertheless I wish to draw attention to Art. 89 of Additional Protocol I, as it is a conventional provision which includes a reference to a role of the United Nations in the law of armed conflict. According to this article, included in the Section devoted to the repression of breaches of the Conventions and the Protocol, "in situations of serious violations of the Convention or of this Protocol, the High Contracting Parties undertake to act, jointly or individually, in cooperation with the United Nations and in conformity with the United Nations Charter". If Art. 89 calls upon the United Nations to react (albeit in co-operation with States) against serious violations of international humanitarian law, one may rationally be led to think that such a reaction presupposes that international humanitarian law is also applicable to the organization itself. The organization, as it is entitled to claim respect for international humanitarian law, is also called upon consequently - to abide by international humanitarian law insofar as the conduct of its organs is concerned. Moreover it is rational to conclude that an action undertaken by States and the United Nations together pursuant to Art. 89 is subject to the entire system of international humanitarian law of which Art. 89 itself is a part. Art. 89 indeed specifies that such action has to be "in conformity with the Charter" but the Charter and international humanitarian law cannot be seen as being conflicting systems.

On the contrary, I note that the wording of Art. 89 is very similar to the formula originally employed in Art. 56 of the Charter, and - as already mentioned in paragraph 3 - it is precisely in the Charter that a general and binding recognition of humanitarian values is to be found (Preamble, Art. 1, 55, 56) together with the affirmation that contracting States are determined "to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind". preventing such unspeakable sorrow is the very goal of international humanitarian law too, when a call to arms has been brought about by events which the United Nations care was unable to avert, and it remains likewise necessary "to serve, even in this extreme case, the interests of humanity and the ever progressive needs of civilization ".37

In considering Additional Protocol I it is also worth recalling Art. 37 insofar as it too refers to the United Nations. Art. 37 refers to the prohibition of perfidy and prohibits "the feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not parties to a conflict. This rule, which is not to be neglected, betrays the idea according to which United Nations Forces are not intended to be in principle a party to a conflict, in the same logic of the 1994 Convention - and are consequently protected - as is a State which is neutral or otherwise extraneous to the conflict. But neutral States or other States which are not parties to a conflict continue to be in such a condition only up to the moment in which they are involved even if unwillingly - in a conflict and their condition becomes a more complex one from the point of view of the law of armed conflicts: the same may occur - we are authorized to believe - to United Nations Forces which are correctly placed by Art. 39 itself at the same level as States. If deployed in situations of armed conflict, they are plunged rightly into international humanitarian law.

If one is to draw a conclusion from an overall consideration of the general instruments mentioned above, one may in general affirm the relevance of international humanitarian law in peace-keeping missions while they are not in principle intended to be a party to a conflict - but at the same time space for taking firm steps in the direction of a greater normative precision is lacking.

VII. The Practice of Specific Instruments Concerning the Applicability of International Humanitarian Law in Peace-keeping Operations

Setting aside these normative references which, while denoting the possible relevance of international humanitarian law in peace-keeping operations, are at the same time unsuitable for the purpose of demonstrating the applicability of general instruments of international humanitarian law as such, I now wish to observe that the establishment and deployment of United Nations peace-keeping operations has emphasized the issue of the applicability of international humanitarian law in concrete circumstances.

The International Committee of the Red Cross has, in such specific cases, in addressing the United Nations, affirmed the binding character of international humanitarian law, of customary law at least, for all those involved in situations of armed conflicts, even if the entity in question is a non-State entity such as an international organization. It is the traditional policy of the ICRC to affirm - in promoting universal application of international humanitarian law - that international humanitarian law applies "in all circumstances" according to the wording of Art. 1 common to the Geneva Conventions and to Protocol I, irrespective of the possible legal basis of the use of force and the status of the entities involved.

The ICRC, however, accepts the fact that the applicability of international humanitarian law to United Nations Forces is conditioned by the factual characteristics of the organization itself and that therefore the rules of armed conflict - insofar as they are construed to as basically taking into account the material characteristics of States - should apply mutatis mutandis, safeguarding - however - their fundamental ratio.

Also, in the follow-up to such requests by the ICRC, the United Nations were led to introduce a reference to international humanitarian law in the regulations enacted for specific United Nations missions as they were set up 42 The first step was the inclusion in Regulations for UNEF I (of 20 February 1957) of Art. 44, according to which "The Force shall observe the principles and spirit of the general international Conventions applicable to the conduct of military personnel". The same wording, which includes, as a minimum, rules of customary international law restated by those conventions, was then repeated in Art. 43 of the Regulations for ONUC of 15 July 1963 and in Art. 40 of the Regulations for UNFICYP of 25 April 1964.

A further step is constituted by the agreements concluded by the United Nations with States providing contingents. In these agreements with contributing States - such as the one with Sweden of 1966 - in order to give a more concrete meaning to the formula quoted above it is furthermore stated, for the first time, that "the international Conventions referred to in the regulation include - inter alia - the Geneva Conventions of 12 August 1949 and the UNESCO Convention on the Protection of Cultural Property in the event of armed conflict, signed at the Hague in 1954". It is also indicated in this connection - in a typical sharing of responsibilities between the organization and member States - that the Governments of the States providing contingents will "ensure that the members of their contingents serving with the Force shall be fully acquainted with the obligations arising under these Conventions and that appropriate steps be taken to ensure their enforcement".43

This was undoubtedly a significant step forward aimed at reinforcing concretely, by means of an appropriate specification, the applicability of international humanitarian law to peace-keeping forces and at strengthening the procedure for its implementation by the States contributing contingents.

One may consider it to be a precedent, in the terminology used, of the general clause later introduced in the 1991 Model Agreement between the United Nations and Member States contributing personnel and equipment to United Nations peace-keeping operations. This clause, in laying down the obligations of the troops and of their contributing Governments, rules that the United Nations peace-keeping operations "shall observe and respect the principles and spirit of the general international conventions applicable to the conduct of military personnel. The international conventions referred to above include the four Geneva Conventions of 12 August 1949 and their Additional Protocols of 8 June 1977 and the UNESCO Convention of 14 May 1954 on the Protection of Cultural Property in the Event of Armed Conflict". Moreover, the States contributing personnel - in the typical sharing of responsibilities already mentioned - must ensure that the members of their national contingents "shall be fully acquainted with the principles and spirit of the conventions ".

To-date the United Nations, following a request by the ICRC, has amended, in 1992, the Model Status of Forces Agreement (SOFA) between the United Nations and the State on whose territory United Nations Forces are deployed, introducing a similar provision on the mutual observance of the principles of international humanitarian law: the so called "Red Cross clause".

The United Nations, according to the clause in question, undertakes to fully respect, in the context of peace-keeping operations, the principles and spirit of the general international Conventions applicable to the conduct of military personnel. The host State, on the other hand, undertakes the mutual obligation to treat the forces of the organization with full respect for the principles and spirit of the general international conventions applicable to the treatment of military personnel. This clause has since been included, together with specific references in the agreement between the United Nations and Haiti on the status of UNMIH, of 9 October 1993 as well as in the agreement between the United Nations and Rwanda on the status of UNAMIR, of 5 November 1993.

In particular, Art. 7 of the SOFA with Rwanda provides that "without prejudice to the mandate of UNAMIR and its international status:

a) The United Nations shall assure that UNAMIR shall conduct its operations in Rwanda with full respect for principles and spirit of the general conventions applicable to conduct of military personnel. These international conventions include the four Geneva Conventions of 12 August 1949 and their Additional Protocols of 8 June 1977 and the UNESCO Convention of 14 May 1954 on the Protection of Cultural Property in the Event of Armed Conflict;

b) The Government undertakes to treat at all times the military personnel of UNAMIR with full respect for the principles and spirit of the general international conventions applicable to the treatment of military personnel. These international conventions include the four Geneva Conventions of 12 August 1949 and their Additional Protocols of 8 June 1977;

UNAMIR and Government shall therefore ensure that members of their respective military personnel are fully acquainted with the principles and spirit of the above-mentioned international instruments ".

The practice mentioned above shows that reference is constantly made, with some slight variance, to "the principles and spirit of the general international Conventions applicable to the conduct of military personnel", but never to the Conventions in their integrity. Such uniform reference to "the principles and spirit", and not to the Conventions as such, may be explained by the fact that the United Nations is not party to the international humanitarian law conventions. Moreover there are well grounded doubts over the fact that the United Nations may formally accede to humanitarian law conventions, if attention is paid to the subjective field of application as indicated in humanitarian law conventions themselves: the parties are intended to be only State entities.

This latter consideration puts a further - previously outlined element to the fore: that is to say, international humanitarian law conventions were tailored on a State dummy and it may happen that some of the single rules considered relevant cannot be applied as such to United Nations Forces. It is rather necessary - as already mentioned - to act mutatis mutandis in order for them to properly fit the organization's body.

But, all things considered, if one cannot draw the conclusion that the United Nations is bound by humanitarian law conventions as such, at the same time, one should not consider "the principles and spirit" as a commitment of a general character with a feeble normative content

In fact, the formula "principles and spirit of international humanitarian law" undoubtedly is to be provided with a proper normative content extending beyond strict customary law. Such normative content must operate in different concrete situations in which it is to find its specification according to each case: the real significance of those principles in the concrete situations involving United Nations Forces is inevitably the one provided for by international humanitarian law conventions for similar situations involving the conduct of States. Therefore United Nations Forces must abide by the concrete meaning of the "principles and spirit" such as specified in general conventions.

This solution is furthermore suggested by the usual reference to specific instruments of international humanitarian law next to the formula "the principle and spirit". The - not exclusive - list of such instruments includes the Geneva Conventions of 1949, the Protocols of 1977 and the UNESCO Convention of 1954.

I mean, therefore, that in practice United Nations Forces have to abide by and are protected in turn by all single rules of the Conventions adopted at a universal level, with the sole notice that some of these specific rules must be applied taking the factual features of the United Nations Organization into account and considering that some responsibilities which the United Nations is not in a material condition to carry out, are to be shared with the members States of the Organization. Furthermore, one may go as far as saying that the international organization is under the duty to request States to comply with those obligations which the organization itself is not materially in a condition to fulfil. I think this solution appears to be the most profitable for international humanitarian law and United Nations peace-keeping forces, as opposed to that of undertaking the very difficult task of rewriting and revisiting all international humanitarian law from the point of view of United Nations peace-keeping forces (with the extremely difficult problems of co-ordination among the numerous international humanitarian law instruments involved).

In other words, the best solution appears to consist in setting a legal presumption according to which all rules of international humanitarian law are applicable, leaving the burden of demonstrating that a specific rule cannot materially work in some cases and that "the principle and spirit" of that specific rule may be honoured by the Organization or by a State on behalf of the organization by way of a specific response which properly safeguards the raison d'etre of such rule.

If one is to envisage some sort of drafting of specific rules relating to United Nations Forces, it appears preferable to consider flexible instruments such as a code of conduct of international rules binding upon the Organization, having a merely internal value, which may be easily modified in the light of the concrete experience of situations on the ground.

This solution appears to be much more acceptable insofar as it is essential that United Nations personnel behave in the best possible way if international humanitarian law is, more generally, to be implemented.

VIII. A Conclusion in the Light of the 1994 Convention on the Safety of United Nations Personnel

In the light of the remarks contained in the previous paragraph, let us once again consider the formula contained in the "saving clause" of the 1994 Convention and move one step forward.

According to the new wording of the saving clause the United Nations Forces are bound not only by "the principles and spirit" of humanitarian law Conventions, but by "international humanitarian law as contained in international instruments". That is to say, the normative humanitarian law standards binding United Nations peace-keeping forces are those provided by the specific contents of the humanitarian law conventions themselves, following the evolutive line of the practice considered above.

As has been pointed out,

"the recognition that United Nations personnel are duty-bound to respect international humanitarian law also implies that the long debated questions of whether the United Nations can or may be a party to a conflict, or whether it should formally accede to the Geneva Conventions in order for the latter to apply to United Nations Forces, are now moot question ".

The applicability of international humanitarian law to peace-keeping forces in situations which may be qualified as armed conflict acquires relevance under the aspect of guaranteeing a protective status to United Nations missions, but - as the saving clause explains, in a bilateralism of the juridical subjective situations involved - also under the aspect of the responsibility of United Nations personnel to respect the law included in humanitarian conventions. The Convention's purpose of enhancing the safety of United Nations personnel "does not absolve such personnel from respecting, in turn, rules of international humanitarian law as well as human rights obligations" in a balance of rights and duties.

Therefore, as United Nations Forces as a whole (military as well as non-military components) are deployed in situations of armed conflict, international humanitarian law applies to such forces. If, as is usually the case, they are not intended to be a party to a conflict and in fact they are not involved directly in the conflict, they are, as a whole, regarded by international humanitarian law as having a protected status (whose content is related to the tasks assigned to each category of personnel), and must abide by those duties which persons having a protected status are bound to respect.

If the military component of a peace-keeping mission becomes involved in a conflict, from the limited point of view of international humanitarian law, it becomes addressee of duties and rights pertaining to the conduct of military personnel in combat mission, according to the principle that international humanitarian law applies equally to all parties in conflict. Even if, from another point of view, the attack against the United Nations mission per se is regarded, in the framework of ius ad bellum, as illicit.

Art. 8 of the Convention reflects the same logic insofar as captured or detained United Nations personnel are concerned. Insofar as the Convention forbids attacks against United Nations personnel, its Art. 8 also forbids, the capture and detention of United Nations peace-keeping personnel. But, at the same time, in case such a "primary" duty is not honoured, the party having captured United Nations personnel is obliged to treat such personnel according to "the principle and spirit" of international humanitarian law itself such as specified in the rules contained in the Geneva Conventions of 1949: in this case the relevant Geneva Conventions are primarily the third and the fourth, depending on whether the captured personnel is part of a military or civilian component of the peace-keeping mission. I believe that - leaving aside the faculty of the detaining Power to retain a prisoner until the cessation of active hostilities - the debated problem whether or not qualifying the United Nations personnel captured or detained as prisoners of war becomes highly semantic.

I have thus concluded my general examination. The way forward is that of consdering the different active and passive juridicial subjective situations contained in various categories of international humanitarian law provisions in order to verify - insofar as it is possible from an abstract point of view - the specifities which concern their application to United Nations missions: from the law governing the conduct of hostilities to the treatment of detained persons; from the rules providing for the protection of the wounded, the sick and of medical units and establishments to those relating to the protection of persons who do not take part in the hostilities; from the rules concerning civil defence and relief operations to those rules providing for the means of execution and implementation of international humanitarian law etc. As I have already said, at the end of heading IV, such a review must to take account of the very articulated and multiform characteristics of the reality of peacekeeping and, at the same time, of the principle of sharing of responsibilities between organization and Member States, insofar as the Organization, in the end, acts on behalf of member States. The responsible institutions, first of all the International Committee of the Red Cross as traditional guardian of international humanitarian law, are on the way.


Rainer Hofmann

I. Introduction

Once again, the recent belligerent conflicts, in particular in Bosnia Herzegovina, Chechnya, and Rwanda, have made (or should have made) the international community understand that, not with standing all commendable efforts by governmental and non-governmental organisations, it is faced with a most serious humanitarian crisis. As a consequence of the extensive media coverage, the plight of the civilians displaced by such events, be it externally or internally, their unspeakable human suffering, have again been brought to the attention of the international community Although it must be admitted that international - humanitarian - law has only a limited role to play in the context of seeking to prevent and to reduce such suffering, it is evident that, with a view to the present state of international humanitarian law and its implementation, international lawyers are seriously called upon to consider ways and means to better implement the existing body of international humanitarian law in a wide sense and to improve its substantive rules. Such action should encompass, inter alia, international refugee law and the - however, only emerging - set of norms applicable to internally displaced persons, as very considerable numbers (if not most) of the civilian victims of such events are subjected to involuntary displacement, i.e. they are either directly forced by the belligerent parties to leave their places of habitual residence or they are indirectly forced to do so in order to survive the imminent consequences of situations of armed conflict.

Although the factual reasons, circumstances, and results of such involuntary displacements are, in practical terms, usually the same, the civilians involved will be subject to quite a different legal regime simply depending upon the mere fact of whether they have crossed, during their displacement, an internationally recognized border: if they have done so and are thus to be considered as externally displaced persons, they might be eligible for protection under the rules of international refugee law; if they have not done so and are, thus, to be considered as internally displaced persons, they benefit only from the - still very incomplete - set of rules applicable to such persons. Therefore, this paper is structured into three parts: the first one addresses the inadequacies of international refugee law in situations of armed conflicts, the second one deals with the inadequacies of international law in respect of internally displaced persons in such situations, whereas the third one seeks to establish the need for comprehensive approaches intended to overcome the existing differentiation in the existing legal regime with regard to refugees on the one hand, and internally displaced persons on the other hand.


With a view to the factual situation of refugees in situations of armed conflict, there can be no serious doubts as to the inadequacy of the currently existing body of international refugee law as regards the effective implementation of the primary raison d'e of this branch of international law, i.e. to accord, based upon profoundly humanitarian considerations, international protection to such persons. Such inadequacy implies, in particular, the need to reconsider the contents of the universally applicable refugee definition as laid down in Art.1 of the 1951 Refugee Convention; the need to improve the substantive rights of refugees in situations of armed conflict; the need to improve international co-operation in respect of such persons; and finally the further need to consider international action in favour of such persons which should include not only the discussion of the ways and means to more effectively bring about the traditional durable solutions to refugee situations (such as voluntary repatriation in particular) but also the issue of humanitarian intervention.

1. The Need for Reconsidering the Refugee Definitions in International Law

It is a well known fact to any international lawyer that victims of armed conflicts are, as such, excluded from the coverage of the refugee definition of the 1951 Refugee Convention whereas they are included in the pertinent definitions provided for the in regional refugee law applicable in Africa and Latin America. It is also well known that, notwithstanding this normative fact, pragmatic solutions have been adopted, both in international and domestic law, with a view to accord at least some degree of - protection to refugees from situations of armed conflicts.

a) The Exclusion of Victims of Armed Conflicts Under the Refugee Definition of the 1951 Refugee Convention

aa) The question as to whether the refugee definition as laid down in Art. 1 A of the 1951 Refugee Convention adequately serves the needs of persons forced to leave their home countries in order to escape from persecution ought to be modified in order to better match the profoundly changed patterns of forced trans-boundary movements of persons constitutes a key issue of the refugee law related debating of the last decades. In this context, it is interesting to note that the only normative change of this definition, i.e. the removal of the temporal and geographic limitations contained in Art. 1 A (2) and B of the 1951 Refugee Convention by virtue of Art. I of the 1967 Protocol Relating to the Status of Refugees, concurred with the drafting of the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa which was eventually adopted in 1969. This 1969 OAU Refugee Convention clearly reflected the new dimensions of the refugee issue, in particular by expanding the refugee definition beyond the scope of the universally applicable 1951/1967 refugee definition. A similar approach resulted in the similarly extended refugee definition of the 1984 Cartagena Declaration.

Since then, considerable efforts have been made with a view to convincing States outside Africa and Latin America to apply - at least within their domestic legal orders - such an expanded definition; although it must be emphasized that - at least for some periods of time some States admitted persons not covered by the 1951/1967 refugee definition, such action was either based upon strictly humanitarian grounds without such States accepting any pertinent legal obligation, or upon specific legal provisions. More recently, however, the ever increasing numbers of persons seeking refuge from situations characterized by (civil) war and/or massive violations of human rights prompted many industrialized States to resort to legal and political actions with a view "co stem the flood". Such actions may be either preventive or repressive: to the former belong, inter alia, the recent however still inconsistent - practice of the UN Security Council to deem situations likely to result in large-scale trans-boundary movements of persons as a "threat to peace" and, thus, justifying actions under Chapter VII of the UN Charter; the increasing emphasis placed upon international co-operation in order to prevent States from conducting refugee-generating policies; and the renaissance of the concept to make financial and other assistance to a State contingent upon such State's human rights record. Among the repressive actions could be mentioned the increased efforts to implement international programmes of durable solutions such as resettlement in the region of the refugees country of origin and voluntary repatriation; and in particular the far-reaching changes in national asylum law and practice encompassing, in particular, the introduction of concepts such as safe countries of origin and safe countries of first asylum. Not with standing the recent decrease in the numbers of asylum applications resulting from such actions, the effects of the wars in the former Yugoslavia showed, in the European context, the very limited possibilities of such measures: although the national asylum laws of practically all European States exclude persons from the former Yugoslavia (irrespective of whether they originate from any of the war-stricken areas or have left their countries of origin in order to escape from being drafted into the armed forces of any of the belligerent parties) from being admitted as refugees in a strictly legal sense, most European States - to an admittedly quite varying degree - "tolerate" the, however, temporal or provisional presence of such persons upon strictly humanitarian grounds". From a legal point of view, such policies might be described as an implementation of the concept of temporary protection (or refuge) which in recent years has become one of the more "promising" topics of the universal refugee law debate.

bb) Notwithstanding such recent developments on the international and domestic level, it must be emphasized that the 1951/1967 refugee definition still constitutes the most important legal basis for international and national refugee law: firstly, more than two thirds of the world's States are parties to the relevant treaties; and, secondly, it might well be argued that the remaining States are also legally bound to respect this definition as constituting customary international law; thirdly, this definition forms, either explicitly or implicitly, part of (almost) all national asylum laws which have either incorporated the Convention system into their domestic legal orders or have based their relevant legislation upon it.

Within the framework of this paper, it is not necessary to embark upon a detailed presentation of the contents of the 1951/1967 refugee definition. Suffice to recall here that it is focused on a well-founded fear of persecution due to one of five specific grounds (race, religion, nationality, membership of a particular social group or political opinion). Various well known problems of interpretation arise from this definition, e.g. the question as to whether the "well-foundedness" of an individual's fear of persecution is to be determined upon the basis of objective and/or subjective criteria;9 to what extent persecution directed against other members of the same group justifies other persons' fear of being persecuted themselves; and how these grounds for persecution are to be interpreted.

Notwithstanding such interpretative issues, the most important problem connected with this refugee definition for the subject of this paper is a structural one: although the 1951 Refugee Convention was primarily drafted with a view to protect future victims of generalized persecution as had taken place in Nazi dominated Europe, and although it was applied by Western States during most of the Cold War era with a considerable amount of "generosity" in relation to persons originating from the then socialist countries, the 1951/1967 refugee definition has been predominantly seen as being based upon the concept of individualized persecution and, thus, excluding the notion of group persecution. This concept of individualized persecution necessarily fails to address the new patterns of forced migration which have become, since the early 1960s, the predominant feature of involuntary trans-boundary movements of persons: whatever their cause (struggle against colonialism, foreign domination, civil strife and civil war, general breakdown of public order, gross and persistent violations of fundamental human rights) - States could and can justifiably argue that persons compelled to leave their home countries in order to escape from such situations need not be recognized as refugees in the sense of the 1951/1967 definition.

Thus, as long as this concept of individualized persecution prevails and States are not prepared to expand the 1951/1967 definition with a view to include victims of armed conflicts, such persons are not entitled, under international law, to the benefits of the protection machinery established under the 1951 Refugee Convention. Since for a variety of reasons, some of which will be addressed in the subsequent part of this paper, there does not seem to exist, at least not for the foreseeable future, any well-founded hope as regards a possible change of the basic attitude of States in respect of these two issues, "pragmatic" solutions seem to offer the only viable way of bringing about a substantial alleviation in the humanitarian crisis faced by such persons.

b) The Inclusion of Victims of Armed Conflicts under the Refugee Definitions of the 1969 OAU Convention and the 1984 Cartagena Declaration

a) The aforementioned new patterns of coerced trans-boundary movements resulted in efforts to expand the universally applicable refugee definition. Since, at least in the 1960s, most of such situations occurred in Africa where, moreover, the newly independent States were simply not in a position to establish the administrative structures necessary to conduct individualized recognition procedures in cases of massive influxes of refugees, African leaders soon understood the need to expand the traditional refugee definition. Thus, the 1969 OAU Refugee Convention, while building upon the 1951/1967 Convention definition by incorporating it into its Art. I (1), added in Art. I (2) a new category of refugees, namely victims of external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of the country of origin.

Although the civil wars fought in Central America since the early 1970s resulted in similar phenomena, it took more than a decade until ten Latin American States adopted the 1984 Cartagena Declaration which was approved by the OAS General Assembly in 1985. It includes a refugee definition which shares most of the innovative concepts of the 1969 OAU Convention. The major differences seem to be that the Cartagena definition might be interpreted as, firstly, excluding such persons who might find refuge in another region of their home country (the so-called concept of alternative refuge considered to be inherent to the 1951 Convention system) and, secondly, requiring an objectively demonstrable risk for threats to life, safety, or freedom whereas the 1969 OAU Convention seems to emphasize the refugee's subjective perception; all other textual differences do not seem to entail any practical differences. A final point to be mentioned concerns the legal status of the 1984 Cartagena Declaration: unlike the 1969 OAU Convention, it does not have the quality of binding treaty law. Nonetheless, it seems justified to state that both documents reflect regional customary international law. Thus, in two of the most refugee-stricken regions of the world, the universally applicable refugee law as enshrined in the 1951/1967 Convention system is supplemented by further-reaching regional law specifically drafted to adequately cope with the existing refugee situations by, inter alia, explicitly including victims of armed conflicts as eligible for recognition as refugees.

b) The absence of any such regional refugee law in other parts of the world may be explained by several reasons. Asia, the third continent with a long history of large-scale trans-boundary movements of victims of armed conflicts, lacks one essential formal precondition: the existence of any regional organisation capable of drafting the necessary legal instrument.

As regards Europe and Oceania, the following reasons might be relevant whereas the Council of Europe provides the necessary forum to draft such a document, there was - and still is - a lack of sufficient political will to embark upon such an endeavour. One reason might be that Europe - with the exception of Turkey - did not know of refugee situations which necessitated expanding the 1951/1967 refugee definition m order to assist and protect persons originating from European' countries; notwithstanding the wars in the former Yugoslavia and prospects of a further deterioration of the situation in Russia and other successor States of the former Soviet Union, it remains most doubtful whether these factors will result in a change of the existing political climate. The second reason might be that European States were and are unwilling to accept such an expanded refugee definition for fear of "attracting" even larger numbers of asylum-seekers from non-European countries not covered by the 1951/1967 definition; if European States were and are at all prepared to accord some legal status to such persons, they preferred to do so on the basis of - more easily adaptable - domestic legislation which to a large extent seems to reflect a (partial) implementation of policies influenced by the concept of temporary protection.

As regards Oceania, it must be stressed that there exists neither the appropriate institutional framework to draft such a regional instrument nor does there seem to be sufficient practical need to do so: so far, this region has been spared from the occurrence of both large-scale refugee-generating situations and, due to geographical reasons, from massive refugee movements from outside the region.

c) Pragmatic Solutions in the Practice of UNHCR

In view of these mainly political circumstances, the only viable approach to improve the situation of victims of armed conflicts consists in developing pragmatic solutions, i.e. solutions short of drafting legally binding treaty law. Such an approach is well reflected in the recent Note on International Protection submitted by the UN High Commissioner for Refugees to the UNHCR EXCOM on 7 September 1994 which focuses, inter alia, on the concept of temporary protection.

a) The fundamental conceptual importance of this Note results from its basic approach to emphasize the need for protection as the key to the identification of persons as refugees and as persons of concern to UNHCR and to the international community. Referring to the wording of the Preamble to the 1951 Refugee Convention, it is stressed that the overall objective of international protection is “[...] to assure refugees the widest possible exercise of [..] fundamental rights and freedoms [...]" Thus, international protection is premised upon human rights principles and is to be provided by the international community as a whole as refugees do not enjoy the effective protection of their own government; to some extent, international protection thus serves as a substitute for national protection.

In the context of this paper, particular attention must be attached to those parts of the Note in which the High Commissioner deals with, on the one hand, identifying the gaps between the coverage of international instruments and the categories of persons actually in need of international protection, and, on the other hand, exploring the ways and means of bridging such gaps.

The fundamental problem of contemporary refugee law relates to those persons who objectively need international protection but do not qualify as "refugees" under the 1951/1967 Convention system or are denied recognition due to a "narrow" interpretation of the refugee definition. To be emphasized, in this context, is the obvious correctness of the conclusion that

"[...] the lack of a complete correspondence between the categories of persons covered by the 1951 Convention and the 1967 Protocol and the broader class of persons in need of international protection is not simply a matter of a ¿'road or narrow interpretation of the elements of the refugee definition, nor of the difficulty of applying the 1951 Convention in situations of large-scale influx. However liberally its terms are applied, some refugees fleeing the civil wars and other forms of armed conflict fall outside the letter of the Convention. Although many refugees from armed conflict do have reason to fear some form of persecution on ethnic, religious, social or political grounds at the hands of one or more parties to a conflict, others typically are fleeing the indiscriminate effects of armed conflict and the accompanying disorder, including the destruction of homes, harvests, food stocks and the means of subsistence, with no specific element of persecution [...]".

The Note continues by describing the efforts to bridge this gap between the need for international protection and the inherent limitations of the 1951/1967 Convention system; such efforts involved, in particular, a broadened UNHCR mandate combined with reliance on regional instruments such as the 1969 OAU Refugee Convention and the 1984 Cartagena Declaration, other international instruments, customary international law, and ad hoc-arrangements relying on the humanitarian policies of governments. This section concludes by realistically stating that although these efforts have in practice yielded considerable success, there remains the problem that, outside the reach of regional treaty law or customary international law, such protection depends on the continuing goodwill of governments. In this context, it is rightly observed that, despite the generosity shown by most countries, such goodwill is not necessarily permanent or stable, and can be unduly swayed by the vagaries of public opinion; moreover, such generosity is often inconsistently applied because, due to political considerations, persons fleeing from situations of armed conflict in one country may benefit from (temporary) asylum accorded ex gratia while others, fleeing from a very similar situation another country, are denied such protection.

Thus, ways need to be found in order to guarantee effective international protection for all those who require it, irrespective of whether they come within the scope of the treaty obligations of individual governments. In this context, the Note states quite realistically that

"[...] while regional legal instruments may appear to show the way,hopes of widening the scope of international instruments to cover refugees beyond those provided for in the 1951 Convention and the 1967 Protocol are confronted with the reluctance of many States to undertake internationally legal binding obligations towards refugees beyond those that they have already assumed [...]''.

In this situation, the High Commissioner, while insisting on her preference for establishing global or regional conventions for the protection of refugees in the broader sense, proposes a more pragmatic approach based upon the experiences with the 1984 Cartagena Declaration, i.e. to draft a declaration of guiding principles for international protection on a global and/or regional level, complemented by regional and/or global harmonisation processes recommending and leading to the adoption of parallel national legislation, and co-ordinated ad hoc-international responses to specific refugee situations. In this context, the key notion should be the concept of temporary protection.

And indeed: in view of the current political and social reality in most of those countries of refuge which do not rely on international assistance in meeting the financial and other needs of persons not covered by the 1951/1967 refugee definition, this approach seems to be the only realistic one. Whether one likes it or not: hoping for the legislative and executive organs of Western countries to assume further internationally binding legal obligations in respect of such persons is and most probably will remain so for quite some time to come - nothing but wishful thinking.

b) This leads to the concept of temporary protection which, in the Note, is explicitly said to be based upon the experiences gained in the context of providing assistance to the victims of the armed conflicts and systematic human rights abuses in the former Yugoslavia; from a legal point of view, it constitutes a further development of the concept of temporary refuge applied, under different denominations, in various countries since the mid-1970s in order to provide some kind of assistance and protection to persons not eligible for refugee status under the 1951/1967 Convention system. The major aspects of temporary protection are identified as follows: (1) " [...] its use as a tool to meet protection needs in mass outflows [...]"; (2) the the definition of beneficiaries on the basis of the need for international protection [...]"; (3) " [...] the description of the basic elements of protection [...]" (4) " [...] the focus on return as the most appropriate solution [...]; and (5) "[...] the provision of international protection as part of a comprehensive programme of concerted international action that includes prevention and solution [...]. Moreover, as temporary protection is conceived of as an emergency measure for only short duration, it does include respect for basic human rights, but its beneficiaries will be offered a more limited range of rights than would customarily be accorded to refugees under the 1951/1967 Convention system.

Temporary protection would be offered to all persons who have fled from areas affected by armed conflict and violence; who had been or would be exposed to human rights abuses including victims of ethnic cleansing; and who for other reasons specific to their personal situation are presumed to be in need of international protection. In practical terms, this definition encompasses all those who are covered by the expanded refugee definitions of the 1969 OAU Refugee Convention and the 1984 Cartagena Declaration. It should be emphasized, moreover, that beneficiaries of temporary protection include both persons who clearly qualify as refugees under the 1951/1967 Convention system and others who do not.

The basic elements of temporary protection include, in particular, admission to safety in the country of refuge; respect for basic human rights including treatment in accordance with internationally recognized humanitarian standards; protection against refoulement; and repatriation when conditions in the country of origin so allow. Obviously, this description of the basic elements of temporary protection does not entail any problems if voluntary repatriation can be implemented within a short period of time. Recent experience shows, however, that this is often not the case: if it is true that the concept of temporary protection has been developed in particular in the context of the wars in the former Yugoslavia, it must be stressed that the experiences shared by those European countries that admitted persons from that area under this concept may be doubted to have contributed to strengthening their future preparedness to do so again: suffice to mention the shocking lack of political will to effectively implement the provisions of the so-called Vance-Agreement concerning the Croatian areas not controlled by the Croatian government; if its provisions, in particular those providing for the establishment of conditions necessary for the return of the non-Serbian population of those areas and those aimed at preventing further acts of ethnic cleansing, had been implemented as envisaged in this agreement, a very large number of persons who were (or - as regards former inhabitants of Eastern Slavonia - still are) outside Croatia as beneficiaries of temporary protection measures could have justifiably expected to have returned to their homes. In other words: how can the international community press governments to admit persons in need of temporary protection, if it so clearly fails to show that it is at least sincerely willing to adopt those measures which are necessary in order to ensure that such temporary protection does not turn into a "durable solution"? This, however, leads to the broader issue of international action in favour of refugees from situations of armed action which will be dealt with elsewhere in this paper.

c) In summary, it must be said that the concept of temporary protection as presented in the aforementioned 1994 UNHCR Note an International Protection in principle offers a viable solution to the obvious protection needs of persons not qualifying as refugees under the 1951/1967 Convention system outside Africa and Latin America, in particular those fleeing from situations of armed conflict. However, from a legal point of view, this concept urgently needs some clarification as to the extent of rights to be accorded and the treatment to be applied to such temporarily protected persons. With a view to the approach suggested in order to convince States to apply this concept, i.e. to make it the subject of a legally non-binding declaration of guiding principles as long as States are not willing to assume additional legal obligations, it is important to strengthen the political will to eventually make - less selective and much more efficient - use of the possibilities offered by international law, in particular by the UN Charter, as to the prevention of refugee-generating situations and the implementation of programmes of voluntary repatriation, both sponsored and supervised by the competent international bodies.

d) Pragmatic Solutions in Domestic Law and Practice

Within the framework of this paper, it is not possible to embark upon a detailed analysis of the "pragmatic" solutions adopted in the various domestic legal systems in order to accord some sort of protection to persons who do not qualify as refugees under the different national asylum laws reflecting the 1951/1967 refugee definition, in particular as regards persons having escaped from situations of armed conflicts. Suffice to mention, therefore, that already in the 1970s some countries outside Africa and Latin America introduced into their relevant legislation a specific category of refugees (with, however, somewhat lesser status as compared to " Convention Refugees") in order to temporarily admit, upon a legal basis, such persons; most countries, however, only tolerated the presence of such persons upon strictly humanitarian grounds, often on the basis of administrative guidelines or instructions.

In recent years, however, at least most Western European States began, as a reaction to the wars in the former Yugoslavia, to enact specific provisions with a view to establish a legal basis for the (temporary) admission of refugees from situations of civil wars; generally speaking, such provisions may be considered as being in line with the contents of the concept of temporary protection as spelled out in the 1994 UNHCR Note on International Protection mentioned above. Thus, e.g. Germany recently introduced into its Aliens Act a provision (§ 32 a Aliens Act) under which the Federal and the Lander Ministers of the Interior may agree to generally accord to all persons seeking refuge from a specific situation of war or civil war a temporally limited (usually six months with the possibility for further prolongations) Aufenthaltsbefugnis. Such specific residence permits may be geographically restricted to the territory of a Land or even a municipality where the person concerned will have to reside while staying in Germany. This, however, does not limit such persons' right to travel within the country. Moreover, such persons are entitled to take up gainful employment and are issued a specific document stating their residence status if they do not hold any valid passport. As all aliens lawfully staying in Germany, they are also entitled to receive social aid and other welfare benefits. Although it is obvious that such status, due to its strictly provisional character and the uncertainties resulting therefrom, causes considerable mental hardship and, moreover, provides fewer rights than the status of asylee or "Convention Refugee", it might be considered as an appropriate legal response to the most urgent (protection) needs of the persons concerned.

2. The Need for Improving the Substantive Rights of Refugees in Situations of Armed Conflict

In principle, any discussion as to the improvement of the legal and factual position of refugees (and beneficiaries of temporary protection measures) from situations of armed conflicts as persons who, by definition, have crossed an internationally recognized border and may thus be presumed to be in a situation in which their lives, physical safety and personal freedom would no longer be endangered, should be limited to issues mentioned in the preceding section, i.e. the problems arising from the temporal limitation of their status and the absence of some rights usually accorded to "Convention Refugees". Reality shows, however, that in many cases such persons continue to find themselves in situations in which they face serious threats to their lives, personal security, and personal freedom. Suffice to mention the well known incidents of armed attacks on refugee camps and practice of forced recruitment into the armed forces of the parties of the armed conflict from which such persons have escaped. These facts thus raise the question of introducing specific rights for refugees from situations of armed conflict to, inter alia, personal security and sufficient means of subsistence.

a) Strengthening the Right of Refugees to Personal Security

aa) From the outset, it must be stressed that "refugees" of all legal categories are, as human beings, entitled to the full range of basic human rights such as the right to life, liberty and security of person as well as to freedom from torture and other cruel, inhumane or degrading treatment or punishment. This situation is reflected in the pertinent international human rights treaties and in the domestic legislation of (practically) all States. It is suggested, moreover, that the entitlement to such rights is indeed, under international law and in all domestic legal systems, accompanied by a corresponding obligation of all states of refuge to make every effort to prevent violations of such rights and to institute criminal proceedings against the perpetrators of acts involving such violations.

Notwithstanding this legal situation, in recent years we have seen an increasing number of attacks on asylum-seekers in Europe, in particular in Germany; these incidents resulted, inter alia, in a debate about the appropriateness of the introduction of a specific right to personal security to all kinds of "refugees". It is doubtful whether such legislative action will in fact reduce the sheer number of crimes committed against persons because they are refugees; more urgently, a change of the general "climate" with regard to such persons, seems to be needed in particular to make the general public understand that persons who have been forced to leave their countries of origin as a result of warfare need (temporary) international protection. In this context, the introduction, on the national level, of such a right to personal security may indeed have some welcome supportive effect. Similar considerations apply with regard to the introduction of such a specific right to personal security of all refugees into international documents.

bb) Whereas such considerations apply to all kind of refugees, the specific circumstances of refugees from situations of armed conflicts call for the adoption of specific legal and practical measures. Such measures should include, inter alia, situating refugee camps and settlements in secure locations, i.e. in an appropriate geographical distance from the border areas in order to prevent armed attacks by the armed forces of the parties to an armed conflict; to ensure that all refugees respect their duty to conform to the laws and regulations of their country of refuge and abstain from any activity likely to detract from the exclusively civilian and humanitarian character of refugee camps and settlements which presupposes, inter alia, that efficient measures are taken with a view to preventing any forced recruitment of refugees into the armed forces of the belligerent parties and the abuse of such camps and settlements for military purposes of such armed forces. Obviously, the implementation of such measures depends upon close co-operation between the police - and in specific circumstances even military - forces of the states of refuge concerned and UNHCR and other international organisations involved.

cc) Finally, particular attention must be attached to the recently increasing number of incidents in which refugee women and children have been subjected to rape and other forms of sexual violence, including extortion in connection with the granting of basic necessities. The fact that in many cases such acts of sexual violence were committed by members of the military or police forces or other officials of the countries of refuge whose task consists of protecting and assisting these refugee women and children reflects a most alarming and distressing development. Obviously, such acts constitute gross violations of the most fundamental rules of international human rights and humanitarian law, serious offences to human dignity, and crimes under the domestic criminal law of the States concerned.

It seems, however, that, in many cases, the competent organs of such States do not take sufficient action in order to prevent such crimes from being committed and do not adopt the appropriate measures, including criminal prosecution of offenders and resort to disciplinary action, once such crimes have been committed. It is therefore suggested that the introduction of a specific right of all refugees to freedom from sexual violence and a corresponding obligation of States to adopt the measures mentioned above, which would, it must be emphasized, constitute nothing but an explicit affirmation of existing law, might indeed be an important contribution to strengthening the right of all refugees to personal security.

dd) In summary, it is suggested that strengthening the right of refugees to personal security is primarily a matter of political will and sufficient preparedness to effectively enforce existing norms and not so much a case for further legislative action. However, such legislative action might indeed considerably contribute to bring about that political will and preparedness and should, therefore, be undertaken.

b) Strengthening the Right of Refugees to Means of Subsistence

Refugees in general and refugees from situations of armed conflict in particular belong to the most vulnerable groups of human beings as, in addition to their being in need of protection, they are in need of assistance as regards food, housing, medical care and other basic means of subsistence. Within the framework of this paper, it is not possible to embark upon a thorough discussion of the question of whether there exist, under current international law, specific human rights corresponding to such needs or, more precisely, a discussion as to the legal quality of third generation human rights such as the right to food, shelter etc. considered to be held by every human being. It is, however, suggested that, under international law, refugees are entitled to adequate assistance as to their needs of subsistence taking into account the means available to the international community and the states of refuge concerned.

Irrespective of whether one adheres to that view or not, it cannot be questioned that refugees are entitled to safely receive the assistance provided for them by the international community in order to meet their needs of subsistence. Correspondingly, states of refuge are obliged, under international law, to take all available measures to ensure that such assistance is safely received by its target group. Therefore, it is important that the international community and the competent organs of the States directly concerned take appropriate action with regard to the increasingly reported incidents in which not only private persons, but even members of the police or military forces and other officials of states of refuge committed acts of extortion, robbery, pillage or wilful destruction of refugee property or of goods designed to meet their subsistence needs. Such States have to be reminded of their obligation, under international law, to ensure safe access to such assistance, if need be by providing personnel specifically assigned to the task of securing supply routes for humanitarian assistance, and to prosecute the perpetrators of such acts.

Again, what seems to be primarily needed in this context is a better implementation of the existing international rules as regards safe access to assistance. However, the explicit introduction, into an international legal document, of a specific right to safely receive assistance designed to meet the basic subsistence needs of refugees, accompanied by a corresponding obligation upon states of refuge to secure safe access to such assistance, might considerably contribute to strengthen the right of refugees to subsistence.

3. The Need for Improving International Co-operation with Regard to Refugees from 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.

4. The Need for Further Consideration of International Action in Favour of Refugees from Situations of Armed Conflict

The ever-increasing number of refugees from situations of armed conflict results not only in unspeakable human suffering, but also constitutes a serious threat to the economic, political and social stability and development of many refugee-receiving countries and, in many instances, a threat to the peace in a given region of the world. These factors entail the need to further consider specific kinds of international action in favour of such persons which, in addition, would contribute to reducing the aforementioned risks to international peace and stability resulting from such refugee situations. Among the various international actions that might be discussed in this context, the issues of humanitarian intervention and voluntary repatriation deserve particular attention. However, with a view to the fact that both issues have, in recent years, been extensively dealt with by international scholars, it seems justified to only briefly present some of their views of specific relevance for this paper.

a) The Issue of Humanitarian Intervention

In particular as a consequence of the Second Gulf War, the wars in the former Yugoslavia and the conflicts in Haiti, Liberia, Somalia and Rwanda, the issue of humanitarian intervention has, again, been moved into the focus of international law and politics. With regard to the problem of refugees from situations of armed conflict, (armed) humanitarian intervention might, in principle, play a twofold role: firstly, such interventions might take place, at a very early stage of such armed conflicts, in order to prevent large-scale movements of persons from the war-stricken areas into neighbouring countries; secondly, at a later stage, they might be effected in order to halt such influxes by removing their root causes and, at the same time, to bring about the factual situation necessary for the success of programmes of voluntary repatriation.

Without going into detail, which is not possible within the framework of this paper, it is suggested that the recent practice, in particular of the UN Security Council and the pertinent reaction of the international community, show that contemporary international law, in principle, permits humanitarian intervention. On the other hand, it must be stated that there does not seem to exist universal consensus as to the conditions for the lawfulness of such actions; this deplorable lack results, in particular, from the most unfortunate absence of a stringent, politically unbiased and non-selective practice of the international community as a whole and its most powerful member States in this respect. It may be stated, however, that there seems to exist consensus that humanitarian interventions may be considered only as a last resort for the achievement of the aims mentioned above; that they should not be undertaken as a uni- or multilateral action without the explicit authorization or approval of the competent body of the UN, i.e. the Security Council, or (possibly) regional organisations; and that, since any recourse to humanitarian intervention is fraught with the risk of potential abuse, the standards for its deployment and operation must be very carefully developed.

In theory, humanitarian interventions do constitute quite an efficient tool in the hands of the international community to achieve the aforesaid aims. Recent practice shows, however, that their success depends upon many factors; above all, the international community - or, at least, those of its members that provide the military forces - must have fully agreed upon the political aims to be achieved by and the means to be employed during such interventions.

b) Voluntary Repatriation and Other Durable Solutions

For quite some time, voluntary repatriation has been generally considered as the preferable durable solution to refugee situations Obviously, refugees will only return to their homes if they are guaranteed that the root causes of their external displacement have ceased to exist. Their confidence in the stability of changes in their country of origin would surely be strengthened and their fear of being subjected again to severe violations of their fundamental rights under international human rights and humanitarian law considerably reduced if their repatriation could be internationally monitored. This leads to the issue of internationally organized and implemented repatriation programmes many of which have been successfully operated by UNHCR.

The crucial issue, however, relates to the question of whether and to what extent the international community is prepared to enforce such fundamental changes to the political situation in the respective country of origin and what means might be used for this purpose. It is suggested that the international community continues to further strengthen and implement the approach of some of its member States to make the granting of financial and other assistance dependent upon not only the human rights record of a given government but also of its preparedness to re-admit its nationals who have fled abroad prior to the enactment of such fundamental changes of its policies that are indispensable for the success of any programme of voluntary repatriation.

With a view to the quite considerable burden to be borne by many countries of refuge and the threat to their economic, political and social stability resulting therefrom, it is suggested that in extreme cases the international community might even resort to armed humanitarian interventions in order to enforce such fundamental changes.


The indeed frightening extent of the problem of internal displacement does not need to be emphasized. In the last few years alone, such situations of a hitherto (almost) unequalled extent occurred in practically all areas of the world; suffice to mention here, inter alia, the plight of human beings in Afghanistan, Cambodia, Iraq, Sri Lanka, several successor states of the former Soviet Union, Croatia and Bosnia-Herzegovina, some Central American states, and, in particular, in many African states like e.g. Angola, Ethiopia, Liberia, Mozambique, Somalia, Sudan, and most recently, Rwanda. In 1991, it was estimated that more than 24 million people throughout the world were internally displaced as a result of various causes such as forcible movements to inhospitable areas, civil strife and civil war, and gross and systematic ethnic persecutions as part of governmental policies. More recent estimations give the pertinent numbers as 25 Million people; with a view to the most recent events in Bosnia-Herzegovina and Rwanda, this number might be considerably higher. Notwithstanding this development, the issue of internal displacement is still not directly addressed by any international instrument, which explains, to some extent, the ad hoc - and almost necessarily inadequate - nature of the international community's response to this problem. It has been, however, increasingly recognized that this failure of the international community to appropriately address this issue may result - and indeed results - in a serious threat to the internal stability of states, since those persons who do not receive adequate assistance and protection in their own country will - almost inevitably - seek such assistance and protection (as refugees) in other countries. Such movements might result in a serious economic, political and social destabilization of these countries of refuge and, therefore, is a threat to peace and security in a whole region. Thus, even those cynical enough not to be moved by the unspeakable human suffering connected with internal displacement, should - and indeed did - realize that the international community cannot but - at last - seriously concern itself with this issue and be it only for the "pragmatic" motivation of preventing any spill-over effect from destabilizing whole areas of the world. And indeed, since the early 1990s, the international legal community became, at last, fully aware of the plight of internally displaced persons and the potential repercussions on international peace and stability. This development is not only reflected in the increasing number of scholarly articles dealing with this issue, but also in the nomination of Francis Deng as Representative of the UN Secretary General on Internally Displaced Persons.

It does not seem necessary to repeat here in detail the results of such previous studies (comprehensively) analysing the circumstances under which internal displacements occur; suffice to mention the analytical report of the UN Secretary-General on Internally Displaced Persons where six causes of such displacement have been identified: armed conflict and internal strife, forced relocation, communal violence, natural disasters, ecological disasters, and the systematic violation of human rights.

In addition to institutional uncertainties and technical problems, the hitherto inadequate reaction of the international community to the problem of internal displacement might also be explained by a legal consideration: m contrast to refugees as victims of external displacement who, by definition, have crossed international borders and whose plight has, thus, become of international concern, internally displaced persons fall, from a strictly legal point of view, within the domestic jurisdiction of the state concerned. From this fact results the argument that international actions in favour of such people constitute a violation of the principle of non-intervention into domestic affairs as enshrined in Art. 2 (7) of the UN Charter as one of the fundamental principles underlying the international (legal) order. Referring, however, to the developments which occurred since World War II with regard to human rights, it seems to be beyond any doubt that such a view is not compatible with the present state of international law: today, human suffering of such an enormous extent as it is almost inevitably connected with internal displacement, in principle, does not constitute a domestic affair; therefore, it seems justified to state that, from the point of view of international law, there are no convincing legal obstacles preventing the international community from dealing with situations of internal displacement, in general, and seeking to attempt to establish specific legal norms that comprehensively deal with internal displacement and, in particular, serve as legal justification for extending assistance and protection to the victims of such situations; this conclusion also applies as regards those cases where the government in place, legally relying on the principle of non-intervention, is unwilling to allow such assistance and protection from being offered.

Finally, there is the problem of definition of the term "internally displaced persons": one of the fundamental problems in legally dealing with internally displaced persons is the fact that there does not yet exist any such generally accepted definition

The UN Secretary-General, in his aforementioned analytical report used this term "to refer to persons who have been forced to flee their homes suddenly or unexpectedly in large numbers; as a result of armed conflict, internal strife, systematic violations of human rights or natural or man-made disasters; and who are within the territory of their own country''

Pertinent replies received by Francis Deng, Representative of the Secretary-General on Internally Displaced Persons, from governments, international governmental and non-governmental organisations for the purposes of his study, both confirmed this definition and criticized it for different reasons. Several statements stressed that this definition was unnecessarily narrow; aspects mentioned were, inter alia, the quantitative requirement ("in large numbers") and the temporal qualification ("suddenly or unexpectedly',). Others suggested definitions basically viewing internally displaced persons as "internal refugees". Consequently, the working definition used by the Representative of the UN Secretary General has been slightly modified in such a way so as to apply to “persons or groups of persons who have been forced to flee their homes or places of habitual residence suddenly or unexpectedly as a result of armed conflict, internal strife, systematic violations of human rights or natural or man-made disasters and who have not crossed an internationally recognized state border".

This approach, i.e. to also include victims of natural and man-made disasters, has been criticized for not sufficiently taking into account the fundamental differences between such persons and those who are internally displaced as a result of armed conflicts and human rights violations. However, as this paper is concerned only with persons displaced in the context of armed conflicts, it does not seem necessary to embark upon any further discussion as to the precise definition of the term "internally displaced persons": persons who are internally displaced as a result of armed conflicts are covered by any definition of that term.

From the foregoing considerations results the structure of the following section of this paper: it seems appropriate, firstly, to present the existing norms of international law applying to internally displaced persons; secondly, to identify the lacunae of international law in respect of such persons; thirdly, to discuss possible ways of improving the legal situation of such persons; and, fourthly, to address the need for further action in favour of internally displaced persons.

1. Existing Norms of International Law Applying to Internally Displaced Persons

There seems to be almost unanimous agreement that the major areas of international law the violation of which causes internal displacement are general human rights and humanitarian law.

a) General Human Rights Law

From the outset, it must be affirmed that all internally displaced persons, as human beings, fully enjoy all human rights and freedoms which might be applicable ratione temporis, personae or loci irrespective of whether they are based upon international treaty law or constitute customary international law. Those rights and freedoms the violation of which are characteristic of situations of internal displacement in the context of armed conflicts should, however, be briefly identified.

aa) Forcible displacements are generally characterized by governmental actions - or actions committed by anti-government forces moving part of the population of a State to another area of that State in order to better control the people concerned who are considered as opponents to the government in power - or its supporters in the event of forcible displacements carried out by opposition forces - or in order to weaken (armed) opposition to that government - or to weaken the local position of that government. Thus, such actions usually take place in situations of civil strife or armed internal (internationalized) or international conflicts. Recently, however, such forcible displacements have been increasingly carried out with the objective of "ethnic cleansing", i.e. forcibly removing those persons who do not share ethnic features with that group of the population the members of which though not necessarily constituting the majority of the total population in the area concerned - are currently in a position to enforce their persecutionist policies.

Forcible displacements of the former ("traditional") kind will - as a rule - infringe upon the freedom of movement and the right to choose one's residence as guaranteed, inter alia, under Art. 12 of the 1966 International Covenant on Civil and Political Rights and the respective provisions of other human rights instruments applicable on the universal or regional level. In most cases, such policies violate, moreover, a whole range of other human rights such as the right to personal liberty, privacy, or, in extreme cases, even the right to life.

Forcible displacements of the latter kind ("ethnic cleansing") have been a common feature in history, not the least of modern history. Traditionally, however, they did not result in any internal displacement as the victims of such policies - which were more often than not based upon international treaties under the euphemism of population transfer - were simply expelled or "orderly" transferred to another country in order to create "ethnically homogeneous nation-states". It has been - and still is argued - that such policies (might) have a stabilizing character and that they were - with a view to international law allegedly applicable at that time - not illegal. Be that as it may be, under present international law it seems beyond any doubt that such population transfers - if carried out against the explicit will of the persons concerned or by making use of various forms of pressure exercised upon the persons to be transferred - violate fundamental human rights of such persons and constitute ethnic persecution prohibited under international law, irrespective of whether or not they are based upon agreements of the governments concerned or third powers. With a view to the recent events in Croatia and Bosnia-Herzegovina, it is to be noted that such policies of expelling large portions of the population from a given area based upon ethnic affiliation ("ethnic cleansing") may also result in internal displacement, at least as long as the international community is willing to abide by the rules of international law and does not recognize the legality of changing international borders by means of armed force. Therefore, policies of "ethnic cleansing" as pursued in e.g. Croatia and Bosnia-Herzegovina result in internal displacement; they violate essential principles of international law and fundamental human rights and may even be considered as genocide.

bb) A major reason for internal displacement is persecution based upon ethnic or other grounds which force persons to leave their habitual residences; such persecution takes a variety of forms (in extreme cases, such as ethnic cleansing, that of genocide) and may, thus, constitute violations of numerous human rights such as the right to life; freedom from torture; freedom from arbitrary arrest or detention; the right to a fair trial; the right to privacy; freedom of thought, conscience and religion; freedom of expression; the right to peaceful assembly; freedom of association; the right to property; freedom of movement; and the right not to be subjected to discrimination including the whole set of rules constituting the rights essential for the protection and promotion of the distinct identity of any national or other minority. Generally speaking, these are the same rights the violation of which is usually considered as resulting in a "well-founded fear of being persecuted" as mentioned in most definitions of the term refugee. However, whereas "refugees" as persons who are forced to be outside the territory of their country of origin owing to such well-founded fear are protected by an international legal structure offering assistance and protection, internally displaced persons do not benefit from such a system.

b) International Humanitarian Law

Currently, the most important root causes for internal displacements are, however, (internal or internationalized internal or international) armed conflicts which often coincide with forcible displacements and human rights violations as just described. Almost all countries with large numbers of internally displaced persons are the sites of internal or internationalized internal armed conflicts. Such armed conflicts will force civilians to move in order not to be caught in the cross-fire or to escape from human rights violations committed by governmental or insurgent military forces. It should be stressed, however, that armed conflicts are rightly considered to be situations allowing for restrictions on human rights as enshrined in the pertinent international instruments; it is, on the other hand, equally important to stress that (at least some of) the fundamental human rights such as those just mentioned are generally considered not to be subject to any derogations even in cases of national emergencies.

In addition to (general) human rights law, persons living in areas raged by internal conflicts are protected, at least to some extent, by provisions of international humanitarian law applicable also to such internal conflicts. Most important are Art. 3 of each of the four 1949 Geneva Conventions (common Art. 3) and the provisions of the 1977 Second Additional Protocol to the Geneva Conventions (Protocol II) which apply to persons in a country which is the site of an internal armed conflict. Under common Art. 3 and Protocol II, persons who are actively taking part in the conflict are to be "treated humanely". Thus, under common Art. 3, the parties to a conflict are prohibited from committing any violence to any person, such as mutilation, cruel treatment and torture and any "outrages upon personal dignity, in particular humiliating and degrading treatment". Consequently, States as well as any opposing party or parties are under an obligation to respect certain fundamental rights of such persons. Protocol II also prohibits the parties to a conflict from using the civilian population as the object of armed attacks, from committing "acts or threats of violence the primary purpose of which is to spread terror among the civilian population" and from starving civilians as a method of combat. They are, moreover, prohibited from committing "outrages upon personal dignity, in particular humiliating and degrading treatment, rape, [...] and assault" and from imposing the death penalty on children under eighteen at the time of the offence or on pregnant women.

Considering the well known, outrageous atrocities committed in most current and previous internal conflicts, it is obvious that these rules of humanitarian law, as well as others, are very frequently disregarded by the parties to the conflict with the intent of gaining military advantages.

Moreover, civilians are often victims of forcible displacements which take place in order to deprive insurgents of assistance and support. Such displacements constitute a violation of Art. 17 of Protocol II "unless the security of the civilians involved or imperative military reasons so demand ".

Internally displaced persons as a most vulnerable group of people are in urgent need of food, water, shelter, medical care and other basic needs of subsistence in order to survive; they also need protection against physical attacks and further gross violations of fundamental human rights. Recent experiences show, however, that governments - or anti-government forces controlling a given area - will often deny such persons the necessary assistance and protection or refuse to allow other States or international organisations to provide such assistance and protection.

Notwithstanding the clear prohibition of using starvation as a means of warfare also in internal armed conflicts,fi4 food and other assistance for internally displaced persons are often used as a strategic weapon to gain advantages in internal armed conflicts. It is suggested that, from a human rights point of view, such governmental policies constitute a clear violation of the right to life and physical integrity of the victims of such policies. As to humanitarian law, it is to be stressed that, whereas common Art. 3 and Protocol II prohibit the starvation of civilians as a means of warfare and provide that wounded and sick persons shall receive appropriate medical care and attention, they do not, however, provide for an unambiguous obligation to provide such kind of assistance during an internal armed conflict unless such persons are interned or detained.

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


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.

3. Possible Ways of Improving the Legal Situation of Internally Displaced Persons

These considerations lead to the necessity of exploring possible ways of improving the legal and factual situation of internally displaced persons. It is suggested that this necessity implies the drafting of a legal instrument formulating the specific rights of internally displaced persons and re-considering the institutional framework with regard to such persons, in particular the future roles of UNHCR, ICRC and other international organisations.

a) The Need for Drafting a Declaration on the Rights of Internally Displaced Persons and its Possible Contents

aa) Obviously, the best way to improve the legal situation of internally displaced persons consists of drafting an international treaty specifically addressing the needs and guaranteeing the corresponding rights of such persons. However, with a view to the prevailing attitude of most States, which is characterized by a profound reluctance as regards their preparedness to assume further legal obligations by means of ratifying or acceding to international treaties in the field of human rights and humanitarian law in general and with regard to displaced persons in particular, it appears most unlikely that a sufficient number of States would in fact ratify such a treaty. It is therefore suggested to embark upon the drafting of a Declaration on the Rights of Internally Displaced Persons identifying some of the basic rights to which such persons are, or should be, entitled under international law and specifying some of the fundamental obligations of the international community and its member States in relation to internally displaced persons.

It goes without saying that such a Declaration would not have the legal quality of an international treaty; as an instrument it would, at best, constitute some kind of soft law. On the other hand, it would obviously include some rights which form part of the body of international treaty law as laid down in the relevant texts of international human rights and humanitarian law which in turn, to a large extent, reflect customary international law. Thus it is suggested that the drafting of such a Declaration serves a twofold aim: firstly, it would codify the lex lata as applies to internally displaced persons; secondly, it would identify some additional rights of such persons and corresponding principles that may be considered as guide-lines for the future conduct of States as regards internally displaced persons and, to some extent, as lex ferenda.

bb) As to the contents and structure of such a Declaration, the pertinent efforts undertaken by the ILA Committee on Internally Displaced Persons could offer some guidance. Recently, this author has submitted a draft Declaration on International Legal Principles on Internally Displaced Persons for consideration by the members of that Committee with a view to encourage a more wide-spread discussion of this proposal; it seems justified to take advantage of this paper to briefly present the major components of this draft Declaration. It must be mentioned that it is also concerned with persons who are internally displaced as a result of natural or man-made disasters; since, however, this category of persons falls outside the scope of this paper, the pertinent provisions of the draft Declaration are not being dealt with in the following.

(1) The draft Declaration begins with a definition corresponding to the view presently prevailing in the pertinent international discussion: internally Displaced Persons are defined as those persons or groups of persons who have been forced to leave or to flee their homes or places of habitual residence suddenly or unexpectedly, as a result of armed conflict, internal strife, or systematic violations of human rights, and who have not crossed an internationally recognized border. Thus the definition reflects the two modes of displacement: persons or groups of persons might be forced to leave, i.e. state organs or government or opposition forces forcibly relocate such persons, and persons might be forced to flee, i.e. a specific situation compels them to move, which implies an - admittedly low - degree of a voluntary decision which is absent in the case of forced relocation.

(2) Section II of the draft Declaration contains three general clauses Art. 2 puts the rights and freedoms of internally displaced persons in the general context of international human rights and humanitarian law. It starts by reaffirming that the protection of internally displaced persons forms an integral part of international human rights and humanitarian law and as such falls within the scope of international co-operation, and that such persons, as human beings, fully enjoy all rights and freedoms as are universally or regionally recognized under international law. It continues by explicitly identifying some of those rights, such as, in particular, the right to life and to physical and mental integrity; freedom from torture and cruel, inhuman or degrading treatment or punishment; the right to be protected against the crime of genocide; the right to recognition as a person before the law; the right to personal liberty and security; the right to a fair trial and to have an effective remedy under domestic law; the right to privacy; freedom of thought, conscience, religion, and belief; freedom of opinion, expression, and information; the right to own property; freedom of assembly and association; the right to the protection of marriage and family life; freedom of movement; the right to equality before the law and to equal protection by the law; the right not to be discriminated against; the right to basic needs of subsistence; the right to education; and the right to be treated in accordance with the basic rules of humanitarian law, in particular common Art. 3 of the 1949 Geneva Conventions. It is, furthermore, reaffirmed that particularly vulnerable groups of internally displaced persons, such as women, children, persons of old age, wounded, sick and disabled persons, and persons belonging to indigenous peoples and national minorities, fully enjoy the rights and freedoms specifically guaranteed to them by the pertinent rules of international law. This provision contains, moreover, a restriction clause that generally reflects the wording of the pertinent provisions of the 1950 European Convention on Human Rights and, more specifically, stresses that States may not restrict rights of persons solely on the ground of a person being internally displaced "unless such action is strictly required by the compelling exigencies of the situation". Finally Art. 2 of this draft Declaration proposes, firstly, a derogation clause as used in many international human rights instruments, and stresses, secondly, that States may under no circumstances resort to such derogatory measures with regard to rights having the quality of ius cogens such as the right to life; freedom from torture and cruel, inhuman or degrading treatment or punishment; the right to be protected against the crime of genocide; freedom from slavery; the right to a fair trial; freedom of thought, conscience, religion, and belief; the right to recognition as a person before the law; and the rights set forth in common Art. 3 of the 1949 Geneva Conventions.

Art. 3 of that draft Declaration is concerned with principles stating the obligations of States to co-operate in certain aspects relating to internal displacement. It states, inter alia, general obligations of States to co-operate as regards the protection and implementation of the rights of internally displaced persons and as regards the prevention of situations of internal displacement and the implementation of durable solutions to such situations. It thus encompasses the obligation of States to address the root causes of internal displacement. It is worded in such a way as to allow for the inclusion of all possible means of co-operation ranging from unproblematic measures such as the establishment of early-warning-systems, disaster relief agencies, assistance measures, support of voluntary return programmes to more problematic issues such as human rights monitoring, the deployment of peace-keeping forces or even armed humanitarian intervention. Furthermore, it deals with the closely related issue of establishing the appropriate institutional arrangements necessary to implement the aforementioned obligations. In this context, it reflects an often formulated concern that the existing number of organisations involved in offering and according assistance and protection results in insufficient co-ordination and co-operation.

Art. 4 stresses that measures taken in order to ensure the effective enjoyment of the rights of internally displaced persons do not violate the fundamental principle of equality. Since many of such measures necessarily involve a certain degree of preferential treatment to be given to internally displaced persons compared to the original local population, it seemed necessary to include such a provision, the kind of which is to be found in practically all human rights instruments dealing specifically with the rights and protection needs of distinct (vulnerable) groups of human beings.

(3) In line with the general structure of this draft Declaration, its third section contains several specific rights of all internally displaced persons, i.e. displacement related rights which should be held by all internally displaced persons irrespective of the category to which they belong (victims of natural or man-made disasters, victims of political or belligerent actions). As stated above, the following presentation is limited to the provisions relating to persons who are internally displaced as a result of armed conflicts and serious violations of human rights.

Art. 5 is concerned with freedom of movement as one of the essential rights of internally displaced persons. Obviously, any act of forced displacement constitutes at least a limitation of that right which amounts quite often to a violation thereof. The purpose of this provision is to stress the primordial character of the freedom of movement in the context of internal displacement. Thus it restates firstly that everybody enjoys, to the fullest extent possible, the freedom of movement; secondly, it affirms the "negative" aspect of this right, i.e. the freedom not to be moved against one's own will or not to be displaced. The contents of this negative aspect of the freedom of movement is then explained as the right not to be subjected to measures involving coerced (or forced) displacement. Obviously, there might be very good reasons to force people to move, be it in their own interest (measures of evacuation in the context of belligerent actions) or in the public interest (better logistic possibilities to render assistance etc.). However, in order to seek to minimize abuses of this - principally justified - possibility to restrict the right not to be displaced, such restriction measures may be imposed only if compelling exigencies of the given situation strictly require such action. Thus it is clear that any such restriction may be applied in very exceptional situations only and, moreover, may not exceed the absolutely necessary extent (principle of proportionality). The burden of proof as regards the necessity to resort to such measures is, as always in such cases, on the authorities imposing them. Furthermore, this provision deals with a specific aspect of the freedom of movement: even while internally displaced, everybody has, in principle, the right to freely choose one's place of temporary residence (this implies that any measure of forced displacement which - as an exception from the general principle - is to be considered lawful under the specific conditions of a given situation must be limited temporarily). This right may only be restricted (by assigning persons to certain camp sites, relocation centres etc.) if such measures are strictly required by compelling exigencies of the given situation. In view of the - in principle temporary nature of internal displacement, this provision is further concerned with the movement rights of internally displaced persons once the reasons which resulted in their displacement have ceased to exist. In such a situation, all internally displaced persons have - as a necessarily implied consequence of the freedom of movement - the right to voluntarily return to their former homes. This means that such persons may not be prevented from returning home, on the one hand, but - in principle - must not be forced to return home, on the other hand. In order to facilitate such voluntary returns and, as an incentive to such returns, the persons concerned shall receive any kind of necessary assistance as regards, inter alia, means of transportation. Since, moreover, the preparedness of displaced persons to return will be considerably increased by return programmes involving assistance of any kind as regards the reconstruction and restoration of houses, public buildings and other installations (water, electricity, etc.), the formulation of a right to be assisted with regard to such measures seems to be called for. Thus, this article provides, in line with current developments in the field of refugee law, a right to voluntary return and a right to assistance corresponding therewith.

In order to be able to claim their rights, internally displaced persons must be registered as such Since in many instances such persons are forced to leave their homes unprepared, they are often lacking the documentation papers necessary in order to receive assistance and to be recognized as a person before the law. Moreover, internal displacement often results in the separation of family members; thus, precise registration and documentation of internally displaced persons is an essential precondition for the success of any programme of family reunification. Therefore, Art 6 states that internally displaced persons have a right to be registered as such and to be issued documentation papers.

Art. 7 deals with the aforementioned fact that internal displacement often results in the separation of family members. It is suggested that the general right to protection of marriage and family life comprises of a right to family unification. This implies not only that family members must not be deliberately separated, but also a right of all internally displaced persons to benefit from all available (thus taking into account that existing conditions might prevent -for the time being - the unification of family members) measures which might contribute to the success of family unification programmes. Taking into account the particularly precarious situation of children who have been separated from their families, priority must be given to their needs.

Art. 8 is concerned with an essential right of all internally displaced persons, namely the right to seek and to safely receive any kind of assistance and protection offered by national and international bodies. This implies not only that such persons must not be hindered or even prevented from seeking and receiving such assistance by, e.g., numerically restricting the access to assistance centres, but also the possibility (or possibly even an obligation) to establish "safe zones" distant to the areas of belligerent action. More precisely, this provision affirms that this right to seek and to safely receive assistance and protection shall be enjoyed without any discrimination on any of the grounds explicitly mentioned such as race, colour, language, religion etc. It recognizes, however, that there might be a need for preferential treatment in favour of members of particularly vulnerable groups such as women, children, persons of old age, wounded, sick and disabled persons etc. The wording of this provision reflects, moreover, the sad reality insofar as it takes account of the often scarce and limited resources of assistance and protection which, in turn, justify such preferential treatment, ie. priority access of members of such groups to those resources. This right to seek and to safely receive assistance and protection is, then, linked with the right to voluntarily return as laid down in Art. 5. Since it is not only concerned with the movement related aspect of this right to assistance and protection, it includes also a reference to measures taken with a view to build up self-reliance among returnees in order to, eventually, free such persons from their dependence on outside assistance.

(4) The fourth section contains two articles stating rights specifically relevant to persons who are internally displaced as a result of natural or man-made disasters; therefore, they are not being dealt with in this paper.

(5) The fifth section is concerned with the specific rights of persons who are internally displaced as a result of political or belligerent actions; thus, these rights apply in addition to those which are set forth in sections II and III. Since internally displaced persons belonging to this category are most often deprived of their rights, this section constitutes the "heart" of the draft Declaration.

Art. 11 restates two fundamental principles of essential relevance to every internally displaced person: firstly, it affirms the existing legal norm that nobody may be persecuted or discriminated against on specifically identified grounds, e.g. race, colour, language, religion, political or other opinion, national or social origin etc., and thus refers to the main root causes of internal displacement as a result of political actions. This principle is further specified as it is explicitly stated that States may not resort to persecution or discrimination with a view to forcing people to leave their homes. Secondly, it proscribes another policy resulting in internal displacements, namely policies implemented with a view to bringing about a deliberate alteration of the demographic composition of a given region. Obviously, this right is of extreme importance for persons belonging to national or other minorities and indigenous peoples. It links the draft Declaration with the evolving international law in respect of minorities and indigenous peoples.

Art. 12 restates the universally accepted norm of international humanitarian law that the civilian population may not be subjected to measures of forced displacement unless the personal security of the persons involved or imperative military reasons so demand. Thus, it concerns the major root cause of internal displacement due to belligerent actions and links this draft Declaration to general humanitarian law.

Art. 13 reaffirms that all internally displaced persons fully enjoy the rights set forth in sections II and III of this draft Declaration including, in particular, freedom of movement as laid down in its Art. 5.

Art. 14 constitutes one of the cornerstones of the draft Declaration. It specifies those rights which persons who are internally displaced as a result of political and belligerent actions enjoy in addition to the rights set forth in sections II and III. It starts by listing - in a non-exhaustive manner - rights concerning the physical safety, liberty and property of such persons. It is suggested that all of these rights form an integral part of the existing body of international human rights and humanitarian law. Violations of these rights constitute the major root causes of internal displacement. It should be stressed that the wording "not to be subjected to and to be protected against " is being used in order to emphasize that State organs are under an obligation not to resort to such acts and to protect (admittedly within their powers) persons from being victims of such acts committed by private persons or forces not controlled by State organs. Moreover, Art. 14 specifies the right to safely receive assistance as set forth in Art. 8 by explicitly identifying those items the provision of which is deemed essential in order to secure the sheer survival of internally displaced persons. It is to be stressed that the list of such items is - deliberately - not exhaustive and might be enlarged. Furthermore, Art. 14 is concerned with the question of compensation. It is suggested that there exists, under present international law, a right to be compensated for losses of property incurred as a result of political or belligerent actions if such actions are attributable (it should be recalled that even acts not committed by State organs might be attributable to the State if its organs were not willing to prevent such actions being taken by third persons and thus violate their obligation of protection against such acts) to the government in place after the cessation of such actions. Admittedly, it might be argued that such a right is recognized only with regard to aliens and not yet with regard to nationals. Indeed, the question as to whether nationals are generally entitled to compensation for losses of their property incurred under such circumstances probably has to be answered in the negative. Therefore, this provision only concerns compensation for unlawful requisitions and losses of property. Obviously, this entails the next question, namely which body of law, domestic or international, should be used in order to decide whether such an act is to be considered as unlawful. It is suggested that such acts being in breach of international law entail a right to compensation; whether the same is true for acts being in breach of the respective domestic law remains an open question: therefore, it is proposed to use this rather "vague" formulation which seems to be flexible enough to respond to future developments. Another problem concerns compensation for unlawful requisitions and losses of property incurred as a result of political or belligerent actions not attributable to the government in place after the cessation of such actions. It is suggested that current international law does not provide for a right to compensation under such circumstances. If, however, such government should make compensation available, then all internally displaced persons are entitled to receive an appropriate (thus allowing to take into account the personal situation of the persons involved) share of such compensation.

Art. 15 contains some rights which are enjoyed by victims of belligerent actions in addition to those guaranteed under Art. 14. They concern the physical safety and liberty of such persons and form an integral part of the existing body of international humanitarian law as constituting customary international law and are as such applicable even outside the context of the given treaty.

(6) Whereas the previous three sections are concerned with the rights of internally displaced persons, section VI shifts the focus onto the States where situations of internal displacement occur.

Art. 16 contains the - presumably undisputed - right of any such State to seek assistance from the international community. Whether, in addition, States have a right to receive assistance is much more open to debate. It is, however, suggested that there exists a right to receive humanitarian assistance, at least insofar as the corresponding duty to accord such assistance is qualified as spelled out in Art. 19 ("[...] as fully as possible with a view to the means available [...]"). It must be conceded that the formulation of such a right - which, however, seems to be very much called for from a strictly humanitarian point of view - might be questioned in particular as regards the victims of acts persecution by a government still in place.

Art. 17 contains the duties (which might also be called obligations) of such States. It starts by stating the most fundamental duty of such States not only to respect the rights of internally displaced persons, but also to safeguard and to promote them. This means that, as regards some rights, States are under an obligation to take the appropriate actions and may not satisfy themselves by refraining from violating such rights. It continues by adding the international element in stating the presumably undisputed - duty of such States to co-operate in good faith with the international community in order to implement the rights of internally displaced persons. It then concerns the very essential role of relief workers and organisations. If they are lawfully (either with the consent of the State concerned or - much more debatable - as a result of a humanitarian intervention as envisaged under Art. 20) operating within a State, such State has the duty to take the measures necessary in order to guarantee some specific rights of such personnel. Again, this is not only a duty to prevent State organs from interfering with such rights, but also to seek to protect such rights against interferences committed by third parties. It must be conceded that it is most debatable whether these rights of relief personnel may already be considered as lex lata. Since, however, this draft Declaration concerns principles and not legal norms, some considerations de lege ferenda might be acceptable. Finally, this article stipulates the most essential duty to adopt all available measures to guarantee equal, free, and safe access of internally displaced persons to assistance and protection.

(7) Corresponding to the preceding section, the seventh section deals with the rights and duties of the international community. Art. 18 restates the - presumably undisputed - right to offer assistance to a State dealing with situations of internal displacement. Obviously, such an offer cannot be considered as a breach of the sovereign rights of that State. Art. 19 corresponds to Art. 16 and stipulates a duty of the international community to accord assistance and to adopt other measures requested, however, with a view to the means available. Moreover, members of the international community are reminded that they have to take such action in a spirit of genuine co-operation and burden sharing. The following Art. 20 might be considered as the most controversial provision in this draft. It is, however, strongly suggested that, with a view to recent developments, the international community must be reminded . that m some situations of internal displacement an international humanitarian intervention is simply needed. This article is worded with a view to correspond with the recent -however not universally acclaimed - practice of the UN Security Council with regard to the Second Gulf War, and situations such as in Somalia, Liberia, the former Yugoslavia, Rwanda, or Haiti. It is important to stress that, notwithstanding some profound hesitation due to the - at least partial ineffectiveness of the Security Council, it is still considered preferable to vest only this organ with the power to engage in or authorize a humanitarian intervention which, obviously, might encompass the deployment of peace-enforcing units.

(8) The final section of the draft Declaration contains the usual final clauses which are commonly found in international human rights instruments and thus do not need to be discussed within the framework of this paper. The one exception is Art. 21 which constitutes the only explicit link in this draft Declaration between traditional refugee law and the situation of internally displaced persons. It affirms two fundamental principles of present refugee law, namely that there is a right to seek asylum (which obviously does not necessarily imply a right to be granted asylum) and the right not to be refouled in violation of Art. 33 of the 1951 Refugee Convention.

b) The Need for Re-considering the Institutional Framework: The Future Roles of UNHCR, ICRC and Other International Organisations

As in the above section on institutional aspects concerning the inadequacy of international refugee law, the following section will be limited to some general remarks 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 internally displaced persons and to bring about a better coordination of their respective activities presupposes quite profound expertise as to the institutional aspects of the UN family and their complex relations with non-governmental organisations.

However, it must be emphasized that, notwithstanding some recent activities within the UN system, there is still no international organisation clearly responsible for providing such assistance and protection. Among the numerous UN agencies involved, UNHCR seems to emerge as the main actor, where as the ICRC, for obvious reasons, continues to play its key role among the various nongovernmental organisations active in this field. In this context, it is suggested that further steps be taken in order to ensure that the activities of the various international governmental and non-governmental organisations do not suffer from unnecessary competition and lack of adequate co-ordination between them. Moreover, it is suggested to amend UNHCR's Statute in such a way as to clearly state its responsibility for internally displaced persons who, as persons in need of international protection and assistance, have to be considered as being "of concern to UNHCR ".

Finally, as regards the regional level, it is suggested that regional international organisations take, in close co-operation and co-ordination with UNHCR and ICRC in particular, an even more active role as regards protecting and assisting internally displaced persons. With a view to the possibilities now offered by Art.J.1. of the European Union Treaty, it is suggested that European Union member States start deliberations as to whether and to what extent the relevant responsibilities of the European Commission Humanitarian Office might be extended.

4. The Need for Further Consideration of International Action in Favour of Internally Displaced Persons

In addition to the foregoing considerations concerning the improvement of the legal and factual situation of internally displaced persons by means of drafting a Declaration of the Rights of Internally Displaced Persons, to be eventually adopted by the UN General Assembly, and of improving the institutional framework, two further issues call for a thorough discussion: firstly, the problem of implementing the existing body of international human rights and humanitarian law and, in this context, in particular the issue of humanitarian interventions in favour of internally displaced persons; and secondly the issue of (better) implementing the right of such persons to return to their homes.

a) The Issue of Humanitarian Intervention

The issue as to whether and under what circumstances the international community, or some of its member States upon due authorisation by and on behalf of it, may resort to humanitarian intervention in favour of persons in most urgent need of international protection and assistance in order to secure their sheer survival, obviously constitutes one of the central problems of contemporary international law and relations. In the above section on international refugee law, it has been stated that humanitarian interventions on behalf of refugees are, under certain preconditions, permissible under present international law and may indeed contribute to remedy the root causes and the effects of external displacement. It is suggested that the same assessment applies to internally displaced persons who are victims of gross and systematic violations of basic human rights as a common feature of contemporary internal or internationalized internal armed conflicts.

It must be admitted, however, that none of the recent armed interventions effected by members of the international community have been explicitly justified by humanitarian concerns as to the plight of internally displaced persons. It seems, however, justified to state that their unspeakable suffering and, in particular, the widespread concern that internally displaced persons who do not receive international protection and assistance within the territory of the state of their habitual residence might indeed be - or feel to be - forced to cross an internationally recognized border (and thus become refugees who, by definition, are of concern to the international community and might, due to their large numbers and destitute condition, constitute a threat to the stability of neighbouring countries and, consequently, to international peace and security), has been an important political factor in the decision-making process resulting in the international interventions into, e.g., Bosnia-Herzegovina, Liberia, and Somalia.

Thus, with a view to the recent practice of the UN Security Council as regards the interpretation of the term "threat to international peace", it seems possible to argue that situations of large-scale internal displacement as a result of armed conflicts may be rightly considered as "threats to international peace" in the context of Chapter VII of the UN Charter. Consequently, the UN Security Council would be entitled, under the provisions of that Chapter, to either adopt measures involving armed humanitarian interventions by the international community as such, or to authorize its member States to take such action on behalf of the international community. In practical terms, such humanitarian interventions might cover a whole range of military actions including, e.g. the establishment of relief corridors and safe havens for internally displaced persons, the delineation of no-fire-zones, all of which might be protected by UN (or member States') peace-keeping forces or be defended by UN (or member States') peace-enforcing forces. As in the case of humanitarian interventions on behalf of refugees, it seems indispensable, however, that the international community - before engaging in such interventions - has reached consensus as to the modalities of such actions in order to prevent disastrous fiascos such as have recently occurred in Srebrenica.

Summing up, it seems justified to state that armed humanitarian interventions in favour of persons who are internally displaced as a result of armed conflicts are, in general, permissible under contemporary international law provided that the very situation of internal displacement has been declared, by the UN Security Council, to constitute a "threat to international peace" in the sense of the provisions of Chapter VII of the UN Charter, and that the UN Security Council has authorized such actions. If carried out with sufficient means and political will, such armed humanitarian interventions might indeed considerably contribute to remedy situations of internal displacement.

b) The Issue of Implementing the Right of Internally Displaced Persons to Return to their Homes

Finally, one should mention the fact that current international law does not provide for any specific mechanisms to implement durable solutions to situations of internal displacement. Again, this fact constitutes a striking contrast to the legal and factual situation of refugees with regard to whom there is long-standing experience and practice as to the means of bringing about, securing and monitoring the generally preferred durable solution, namely the voluntary return or repatriation of refugees; to-date there exists nothing comparable with regard to internally displaced persons.

It is suggested, however, that, in the framework of this paper, it is impossible to embark upon a thorough discussion of the issue of durable solutions to situations of internal displacement in general and the means of implementing the right to return of internally displaced persons in particular. Nonetheless, it should be emphasized that the right to return as specifically enshrined in all international human rights instruments could serve as the legal basis for an internally displaced person's wish to return to his/her former habitual residence. Obviously, just as in the case of voluntary repatriation of refugees, internally displaced persons will only return to their homes if they are guaranteed that the root causes resulting in their internal displacement have ceased to exist. Their confidence in the stability of changes in the area of their former habitual residence would surely be strengthened and their fear of again being subjected to measures resulting in their internal displacement would be considerably reduced if their return was internationally monitored. In this context, the question of internationally organized and implemented return-programmes merits further thought.

Another aspect to be considered concerns the question as to whether and to what extent such returnees would be entitled to compensation for the material - and possibly immaterial - losses which they have incurred during and as a result of their internal displacement. In this context, reference is being made to the aforementioned draft Declaration of Legal Principles on Internally Displaced Persons; moreover, additional arguments might be found in the provisions and the corresponding commentaries of the Declaration of Principles of International Law on Refugees and Countries of Asylum, adopted at the 65th ILA Conference in Cairo, 1992.

A final aspect to be discussed in respect of this issue concerns the question of whether and to what extent and by what means such rights to return and compensation might be implemented and, if need be, enforced by the international community. This relates, again, to the issue of humanitarian intervention in favour of internally displaced persons.


The overall structure of this paper, i.e. to separately address the needs of refugees and internally displaced persons, obviously reflects the traditional approach (and the currently existing lex lata). It is suggested, however, that there is an urgent need for a comprehensive approach, i.e. to simultaneously address the needs of those two categories of persons in need of international protection and assistance. Moreover, it is suggested that it is necessary to overcome the still existing differentiation in international law as regards norms applicable before, during and after situations of armed conflicts resulting in forced movements of persons.

1. Overcoming the Differentiation Between Externally Displaced Persons (Refugees) and Internally Displaced Persons

It is a fact well known to any international lawyer that there is a striking difference as regards the legal situation of refugees and internally displaced persons. If one applies the "broader" refugee definition as enshrined in the 1969 OAU Convention and the 1984 Cartagena Declaration which is, apparently, widely used by UNHCR and other international institutions, it becomes obvious that the only difference between persons who are externally displaced as a result of armed conflicts and persons who are internally displaced as a result of armed conflicts consists of the fact that persons belonging to the former group have crossed an internationally recognized border. However, as regards the root causes of such displacements and the need of the members of both groups of persons for international protection and assistance, it must be stated that there do not exist any significant differences; on the contrary, in many situations internally displaced persons are in more urgent need for such protection and assistance than refugees.

With a view to these facts, the question must be raised as to whether the simple fact of having crossed an internationally recognized border warrants the existence of two different legal regimes, in particular, if one takes into consideration that, as regards internally displaced persons such a regime remains in many aspects in what might be called at the very most a status nascendi. It is suggested that, with a view to the present state of international law which is characterized by an increasing tendency towards closer global or, at least, regional integration, it does not seem appropriate to accord such a fundamental importance to "borders". If it is true that strictly humanitarian concerns and the need of persons for international protection and assistance constitute the underlying rationale for the existence of refugee law, it is hardly comprehensible that international law should exclude internally displaced persons from the legal and factual benefits available to externally displaced persons. Furthermore, it must be borne in mind that many "internationally recognized borders" have been drawn in a most arbitrary manner, and that, in many situations of displacement as a result of armed conflicts, the fact of a person's having crossed such a border rather constitutes a matter of sheer coincidence.

Therefore, it is suggested that the international legal community urgently concerns itself with the issue of bridging the gap between the legal regimes applicable to externally displaced persons (refugees), on the one hand, and internally displaced persons, on the other hand. At first sight, there seem to be two viable solutions: firstly, to amend the internationally accepted "broad" refugee definition in such a way as to also include persons who are internally displaced as a result of armed conflicts and who would thus clearly be entitled to international protection and assistance; this solution could easily be achieved by simply deleting the proviso relating to the crossing of an internationally recognized border. Secondly, to draft an international document on the rights of internally displaced persons and the corresponding obligations of States and the international community which, as to its contents, would provide for basically the same rights as to international protection and assistance as held, under international law, by refugees.

2. Overcoming the Still Existing Differentiation in International Law as Regards Norms Applicable Before, During and After Situations of Armed Conflicts Resulting in Forced Movements of Persons

With regard to refugee law, it may stated that there exists wide-spread consensus as to the necessity of comprehensively approaching the different temporal stages of situations of external displacement. In other words: contemporary international refugee law does not only deal with the imminent protection needs of refugees but also addresses the root causes of refugee movements and the issue of durable solutions to refugee situations.

It is suggested that the same approach ought to be taken as regards the evolving international legal regime of internally displaced persons. This implies, inter alia, that the major root causes of internal displacements, namely gross and systematic violations of international human rights and humanitarian law, are efficiently addressed by the international community; that the already existing and possibly evolving rules of international law as regards the imminent effects of situations of internal displacement, namely to protect internally displaced persons against further violations of their fundamental rights under international human rights and humanitarian law and to ensure that they safely receive the assistance extended to them by the international community, are sufficiently enforced by the international community; and that the currently existing and possibly evolving rules of international law as regards durable solutions to situations of internal displacement, in particular the right of internally displaced persons to return to their homes, i.e. their places of previous habitual residence, are efficiently implemented by the international community.

V. Conclusions and Recommendations

In conclusion, it seems justified to state that international law is not yet adequately dealing with situations of forced displacement as a result of armed conflicts. Such situations entail not only immense suffering on the part of the displaced persons, but increasingly tend to threaten the internal stability of the States concerned and peace and security in a given region of the world. Therefore the international community is called upon to seriously consider means to deal with this humanitarian crisis in a more efficient way. It is suggested that this implies, firstly, to adequately address the root causes of such displacements and, secondly, to develop more efficient means to extend assistance and protection to the persons concerned; this applies in particular to internally displaced persons in situations where the forces in control of the situation, be they governmental or insurgent forces, are unwilling to provide such assistance and protection or to allow another country or the international community to do so. In other words: what is needed is a thorough discussion of the possibilities of the international community as to how causes and effects of external and internal displacements might be more efficiently remedied and durable solutions to such situations be implemented.

As regards possible improvements in respect of the legal and factual situation of refugees, the issue of implementing the concept of temporary refuge deserves further consideration and action. Moreover, there is an urgent need for strengthening and enforcing the rights of refugees to personal security and assistance as regards their basic means of subsistence.

As regards possible improvements with regard to the legal and factual situations of internally displaced persons, it is suggested that the international community continues to concern itself with the task of developing a set of rules filling the existing lacunae in international law and of identifying ways and means to better implement the existing norms of international human rights and humanitarian law applicable in situations of internal displacement as a result of armed conflicts.

Furthermore, with a view to apparently existing inadequacies of the international machinery involved in protecting and assisting both refugees and internally displaced persons, experts should continue their efforts aiming at overcoming the deficiencies of the presently existing institutional framework. Another aspect that is considered to deserve much more attention relates to the issue of a fair and equal sharing of the burdens connected with situations of large-scale displacements of persons as a result of armed conflicts.

Moreover, the international community must develop a stringent and politically unbiased, non-selective strategy as to how to deal with the root causes and effects of such displacements. Options to be more intensively considered include the resort to peaceful (economic) sanctions against those States that conduct policies which result in the (external or internal) displacement of persons. Although it must be stressed that armed humanitarian intervention should be considered only as a last resort in order to prevent and remedy such situations of large-scale displacements, it has to be emphasized that the recourse to such action is under certain conditions permissible under contemporary international law and might indeed considerably contribute to solve, or reduce, the effects of the humanitarian crisis inevitably connected with large-scale displacements as a result of armed conflicts. In line with recent developments, it is to be stressed that such armed humanitarian interventions should never be undertaken as a uni- or multilateral action without the explicit authorisation of the UN Security Council or, possibly, the competent bodies of regional organisations. Since humanitarian intervention is fraught with the risk of potential abuse, the standards for its deployment and operation should be very carefully developed.

Finally, it is suggested that the international community further intensifies its efforts to develop comprehensive approaches which might, eventually, result in overcoming the differentiation as to the legal regimes applying to externally and internally displaced persons, at least if such displacements are caused by armed conflicts; in addition, it seems necessary to extend the presently prevailing comprehensive approach of international refugee law with regard to norms applicable before, during, and after situations of external displacement also to situations of internal displacement.

Notes on the Contributors

Paolo Benvenuti

Paolo Benvenuti, "Charge cours" and then Professor of International Law at the University of Catania (1977-1986). Professor of International Law at the University of Teramo (1986-1994) and Chancellor of this University (1993-1994). From 1994 Professor of International Law at the University of Firenze. Coordinator of the Teaching Body of the Doctorate of Research in International Law, University of Firenze. Chairman of the Italian Red Cross Committee for the Dissemination of International Humanitarian Law. Full Member of the International Institute of Humanitarian Law. Author of books and articles on International Law, International Organizations, Private International Law.

Principal publications in the field of International Humanitarian Law: Movimenti insurrezionali e Protocolli aggiuntivi alle Convenzioni di Ginevra del 1949, in: Rivista di diritto internazionale, 1981; CroceRossa Internazionale, in: Enciclopedia giuridica, X, Istituto della Enciclopedia Italiana, Roma, 1989; Ensuring Observance of International Humanitarian Law: Function, Extent and Limits of the Obligations of Third States to Ensure Respect of IHL, in: International Institute of Humanitarian Law Yearbook, 1989-90; La Clausola Martens e la tradizione storica del diritto naturale nella codificazione del diritto dei conflitti armati, in: Scritti in memoria di Giuseppe Barile, Padova, 1995.

Adama Dieng

Adama Dieng, Senegalese jurist, is Secretary-General of the International Commission of Jurists (ICJ). He has been a consultant for UNESCO, UNITAR, the Ford Foundation, the Agence de Cooption culturelle et technique, the International Committee of the Red Cross, the UN Centre for Human Rights, the South-South Commission and the African Commission for Human and Peoples' Rights. He is a member of the Advisory Council of the International Centre for the Legal Protection of Human Rights (INTERIGHTS), the Executive Board of the World Organisation against Torture/SOS-Torture, and the Executive Committee of the African Centre for Democracy and Human Rights Studies, the Advisory Council of HURIDOCS, the International Institute of Humanitarian Law and the African Association of International Law.

Rainer Hofmann

Rainer Hofmann, born in Heidelberg in 1953, is Professor of Public Law and Public International Law at the University of Cologne. He became Docteur en Droit at the University of Montpellier in 1979, then Research Assistant (1979-1981) and Research Fellow (1981-1986 and 1988-1993) at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg. In 1986 and 1987 he was Clerk at the Federal Constitutional Court ("Bundesverfassungsgericht") in Karlsruhe (Prof. Dr. X Steinberger). In 1986 he finished his Dr. jur. utr. degree at the University of Heidelberg. Between January 1988 and June 1988 he was Visiting Scholar at the University of Sydney. In 1993 habilitation at the University of Heidelberg. "Lehrstuhlvertreter" at the University of Kiel (1993-1994) and at the University of Wg (1993/1994). 19841992 Member of the Committee on Refugee Law of the International Law Association. Co-Rapporteur for the Committee on Internally Displaced Persons of the International Law Association since 1992. In 1994 he was the German Rapporteur for the XIVth International Congress of Comparative Law, Athens, on "the Legal Status of the Refugee".

His publications include: Le lock-out en droit allemand (Th de Doctorat de l'Universite Montpellier, 1979); Die Ausreisefreiheit nach Volkerrecht und staatlichem Recht (Berlin 1988), (Dissertation, Heidelberg, 1986); Grundrechte und grenzhreitende Sachverhalte (Berlin 1994), (Habilitation); Voluntary Repatriation and UNHCR, Zeitschrift flandisches ntliches Recht und Vrrecht [Za 44 (1984); Refugee-Generating Policies and the Law of State Responsibility, ZaoRV 45 (1985); Asyl- und Flngsrecht, in: J.A. Frowein / 7: Stein (eds.), Die Rechtsstellung von Auslandern nach staatlichem Recht und Volkerrecht (Berlin 1987); Flngsrecht in Afrika, Archiv des Volkerrechts 26 (1988); Refugee Law in the African Context, ZaoRV 52 (1992); The Legal Condition of the Refugee in Germany, Jahrbuch zur Staats- und Verwaltungswissenschaft Vol. 7 (1994), (German Reports for the XlVth International Congress of Comparative Law, Athens 1994); Internally Displaced Persons und das Volkerrecht, in: Recht zwischen Umbruch und Bewahrung, Festschrift folf Bernhardt (Berlin 1995).

Flavia Lattanzi

Flavia Lattanzi, Assistant de droit international 'Universite Rome "La Sapienza" (1966-1983). Professeur de droit international 'Universite Pise (1984-1990). Professeur de droit des organisations internationales 'Universite Sassari (1990-1995) et en m temps - et actuel lement - de droit international 'UniversitUISS Guido Carli (Rome). Depuis novembre 1995 professeur de droit international 'Universite Teramo (et 'UniversitUISS).

Auteur de nombreuses publications en mati de droit international, droit des organisations internationales, arbitrage commercial international.

Publications principales: Garanzie dei diritti dell'uomo e diritto internazionale generale, Roma, 1983; Valore assoluto o relativo dei principi di ordine pubblico, dans: Rivista di diritto internazionale, 1974; Autodeterminazione dei popoli, Digesto, IV edizione, UTET, Torino, 1987; Convenzione di Washington sulle controversie relative ad investimenti e invaliditelle sentenze arbitrali, dans: Rivista di diritto internazionale, 1987; Sanzioni internazionali, dans: Enciclopedia del diritto, vol. XLI, GiuffrMilano, 1988; L'impugnativa per nullitell'arbitrato commerciale internazionale, Milano, 1989; Riflessioni sulfa competenza di una corte penale internazionale, dans: Rivista di diritto internazionale, 1993; Assistance humanitaire et intervention d'humanitapoli, 1995; Assistenza umanitaria e consenso del sovrano territoriale, Scritti in ricordo di Panzera, Bari, 1995.

Toni Pfanner

Toni Pfanner, nn 1953, originaire de Zurich en Suisse, est chef de la Division juridique du Comitnternational de la Croix Rouge (CICR) Docteur sciences nomiques (Universite St. Galles), il est aussi licencin droit de l'Universite Berne. Avant d'entrer au CICR en 1984, il travaillait dans une de d'avocat et it assistant en droit 'Ecole polytechnique frale urich. II a effectulusieurs missions entent que dgut chef de dgation du CICR en Isra Irak, Tchad Afghanistan et en Afrique du Sud. Dans sa fonction actuelle, depuis dt 1993, il a prdes rions d'experts internationaux sur les mnismes de mise en œuvre du droit international humanitaire et sur l'utilitilitaire des mines et a particip de nombreuses confnces multilatles. II a publilusieurs articles sur le droit international humanitaire, notamment sur l'applicabilitu droit international humanitaire aux options militaires des Nations Unies et sur la Convention de 1980 sur les armes conventionnelles. Il a enseignans diffntes universitet est charge cours de droit internat ion al 'Ecole polytechnique frale urich.

Adam Roberts

Adam Roberts is Montague Burton Professor of International Relations at Oxford University, and a Fellow of Balliol College, since 1986. He is a Fellow of the British Academy. He studied Modern History at Oxford, and subsequently was a Lecturer in International Relations at the London School of Economics. His main academic interests are centred round limitations of various kinds on the use of force.

His books include: Nations in Arms: The Theory and Practice of Territorial Defence, 2nd edn., Macmillan, London, 1986; (ea. with Richard Guelff, Documents on the Laws of War, 2nd edn., Oxford University Press, 1989; and (ea. with Benedict Kingsbury), United Nations, Divided World: The UN's Roles in International Relations, 2nd edn., Oxford University Press, 1993. He has published articles in numerous journals, including American Journal of International Law, International Affairs, International Security, Review of International Studies, and Survival.



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Organization for Security and Co-operation in Europe / Organisation pour la sritt la cooption en Europe


Organisation du traite l'Atlantique du Nord


Organisation de l'unitfricaine


Programme alimentaire mondial


Programme des Nations Unies pour le dloppement


Prisoner of War


Revue beige de droit international


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Revue internationale de la Croix-Rouge


Swedish International Development Agency


Model Status of Forces Agreement


Tribunal Pl International


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United Nations Organization


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United Nations Operation in Somalia


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Union des Rbliques Socialistiques Soviques


United States of America


United States Agency for International Development


Virginia Journal of International Law

European Commission
Commission europne

Law in humanitarian crises
Volume I: How can international humanitarian law be made effective in armed conflicts?

Le droit face aux crises humanitaires
Volume I: De l'efficacitu droit international humanitaire dans les conflits arm

Luxembourg: Office for Official Publications of the European Communities
Luxembourg: Office des publications officielles des Communauteuropnes

1995—384 p. - 16.2 x 22.9 cm

Vol. I: ISBN 92-827-533X-7
Vol. I to/I: 92-827-5337-9

Price (excluding VAT) in Luxembourg - Prix au Luxembourg (TVA exclue):
Vol. I: ECU 10
Vol. I to/I: ECU 18