(introduction...)

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

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

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

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

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

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

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

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

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

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

a) General Human Rights Law

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

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

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

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

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

b) International Humanitarian Law

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

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

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

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

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

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

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

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

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

Persons

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As in the above section on institutional aspects concerning the inadequacy of international refugee law, the following section will be limited to some general remarks since the task of exploring and implementing means to ensure an improved co-operation between international organisations and other institutions involved in protecting and assisting internally displaced persons and to bring about a better coordination of their respective activities presupposes quite profound expertise as to the institutional aspects of the UN family and their complex relations with non-governmental organisations.

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

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

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

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

a) The Issue of Humanitarian Intervention

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

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

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

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

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

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

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

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

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