|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|
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.