Law in Humanitarian Crises Volume I : How Can International Humanitarian Law Be Made Effective in Armed Conflicts? (European Commission Humanitarian Office): International Humanitarian Law and the Law of Refugees and Internally Displaced Persons: V. Conclusions and Recommendations

Law in Humanitarian Crises Volume I : How Can International Humanitarian Law Be Made Effective in Armed Conflicts? (European Commission Humanitarian Office)

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Introduction

The Laws of War: Problems of Implementation in Contemporary Conflicts

I. Introduction

II. Implementation Provisions and Mechanisms

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1. From 1899 to the Second World War

2. The Post-Second World War Trials

3. The Post-1945 Conventions: General

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

5. The Post-1945 Conventions: Punishment and Compensation

6. Other Mechanisms of Implementation

7. The Involvement of the United Nations

8. The International Court of Justice

III. Problems of Implementation in Wars since 1980

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1. Iran-Iraq War 1980-88

2. The 1990-91 Gulf Conflict

3. The Wars in the Former Yugoslavia since 1991

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

5. International Conference, Geneva, August-September 1993

6. Rwanda 1994

IV. General Issues

1. Woodrow Wilson's Dilemma in 1914

2. Successors' Responses to illegal Acts of Previous Regimes

3. One Alternative Vision

V. Summary and Conclusions

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1. Realist and Idealist Images of the Laws of War

2. Still a World of States

3. Humanitarianism as a Substitute for Policy

4. Application to Non-International Conflicts

5. Mines

6. Limits of Compliance Provisions

7. Trials

8. International Criminal Court

9. Reparations

10. The United Nations

11. Barbarians?

12. A Set of Professional Military Standards?

13. Need to Keep Our Own Houses in Order

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

15. Taking Implementation Seriously

The Implementation of International Humanitarian Law in the Framework of United Nations Peace-keeping Operations

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I. The United Nations and Humanitarian Law

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

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

IV. The Alternative Experience of Peace-keeping Operations

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

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

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

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

International Humanitarian Law and the Law of Refugees and Internally Displaced Persons

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I. Introduction

II. The Inadequacy of International Refugee Law in Situations of Armed Conflict

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

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

3. The Need for Improving International Co-operation with Regard to Refugees from Situations of Armed Conflict

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

III. The Inadequacy of International Law in Respect of Internally Displaced Persons

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

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

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

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

IV. The Need for Comprehensive Approaches

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

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

V. Conclusions and Recommendations

Notes on the Contributors

Abbreviations

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.