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

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.