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Using the Law of War to Protect the Displaced
Marking the 50th anniversary of the United Nations Convention on Refugees, the year 2001 saw a flurry of intellectual and diplomatic activity concerning refugees and displaced people, who now number 14.5 million and 25 million worldwide, respectively.
As the numbers of displaced have grown, MSF and other humanitarian organizations have struggled to bring appropriate relief and assistance to those who need it.
While it has been possible to bring material assistance to displaced people, it has become appallingly clear that they are not receiving international protection. The reason for this is two-fold. The term "internally displaced person" (IDP) is sometimes intentionally used to avoid recognizing people as victims of war. And people are increasingly subjected to geographic containment inside their country, thus denied the right to flee across borders when they find themselves in situations of danger.
There has been talk of devising a new law covering displaced persons, and granting a special mandate covering these people to the UNHCR or another UN agency. However, while a new law may seem to be an exciting sign of improvement for displaced people, in reality the legal framework for protecting them does not need to be invented. In the many cases where displacement occurs in a context of armed conflict or as a result of it, the legal framework of protection is already widely codified in humanitarian law defining and covering displaced persons as victims of war.
The 1949 Geneva Conventions and two additional 1977 protocols provide for specific international rights and duties with regard to assisting and protecting victims of armed conflict. They also give humanitarian organizations a mandate to implement and monitor these specific rights through their relief activities. If people are displaced because of internal or international armed conflict, they are protected by the law of war. Providing effective care for IDPs relies on the international community's ability to admit the existence of conflict, and therefore call IDPs victims of war.
Take the example of Chechnya. The people who fled the conflict in Chechnya, one republic in the Russian Federation, into Ingushetia, another Russian republic, are not considered to be refugees because there is no international border between these two territories. The fleeing Chechens cannot benefit from the provisions of humanitarian law because the Russian government refuses to recognize the situation as one of armed conflict, choosing instead to speak of an anti-terrorist operation. The international community is reluctant to challenge this, so it relies on the vague term IDP to cover the people who are victims of these operations. But being called an internally displaced person does not give Chechen refugees or displaced any protection from deprivation, arrest, or repatriation. Neither does it give them any right to receive independent assistance. NGOs have to negotiate endlessly with the Russian authorities over who will evaluate the need for assistance and control its distribution. The Chechnya example is echoed in Sudan, Burundi, the former Yugoslavia, and many other places.
The only international right to protection and assistance these people have comes through recognition of the internal armed conflict going on in their countries. This would qualify them as victims of war and give them the right to be assisted by impartial humanitarian organizations. As war victims, they could not be forcibly regrouped, displaced for reasons related to the conflict, or repatriated until the conflict had stopped.
In peacetime, care of the displaced, for example people displaced by drought, is governed only by the rules of national solidarity and international cooperation. Protection is left to national authorities, who remain bound by international human rights standards.
However, most situations of displacement broadly coincide with situations of chronic internal or international conflicts. Any move to protect displaced persons in such situations should be based on a rigorous use of refugee law and the law of armed conflict.
In recent years, UN actions to assist displaced populations have almost never referred to the law of armed conflict. Various agencies of the UN have led operations assisting the displaced without stressing the existence of armed conflict and its legal consequences. The memoranda of understanding for these operations put more emphasis on governmental authority than on the independence of humanitarian actors. Let us recall: UNICEF in Sudan, the UNHCR in the former Yugoslavia, and the World Food Program in Burundi.
The Right to Flee and Territorial Asylum
The protection of refugees and displaced persons is intimately linked. The right of any individual to flee his country when his life and his safety are at risk constitutes the ultimate guarantee of protection, enshrined since World War II in all international texts relating to human rights, law of conflict, and refugee legislation. In reality, the protection of refugees has suffered tragic setbacks over the past few years.
The UNHCR's mandate to assist and protect refugees allows it to provide both material aid and legal protection. This international material aid is necessary to assist people who have lost everything in flight. It is also necessary to share the financial burden of assistance among all countries. Legal protection is just as essential, because these people are no longer entitled to the rights they had in their own country. The 1951 Convention guarantees that even if people are not recognized as refugees according to the convention's definition, they cannot be repatriated unless there is no threat to their life and safety. This fundamental principle of non-expulsion and non-return ("non-refoulement") sets out the minimum rights of refugees to remain in the host country. Throughout the Cold War period, this principle of non-refoulement sustained the existence of refugee camps that were tolerated by the host countries.
This tolerance, which was more political than humanitarian, has in recent years suddenly disappeared in many countries, radically changing the context in which the refugees were received. Borders are constantly being closed. Obligatory or forced repatriation leaves little hope to defend any kind of right to refuge for a growing number of individuals. Faced with this development, the UN and many states have invoked "realism" as the reason for abandoning the principles of asylum and non-refoulement. Humanitarian organizations have also been called upon to abandon the principles surrounding refugee legislation in order to adopt the pragmatic attitude new situations demand. The number of people displaced inside their countries has grown accordingly, and might even be seen as a result of the decreasing willingness to accept refugees or asylum seekers in many countries.
It is important to note that the term "internally displaced person" came into use internationally during this time, beginning with the war in the former Yugoslavia. This war coincided with the increasing reluctance of European countries to play host within their borders to refugees fleeing the conflict. On that occasion, the UNHCR mandate relating to displaced people was extended to an unequalled degree. In 1992, a special representative of the UN Secretary General was appointed to examine the situation of IDPs and compile the rules of international law applicable to them. In 1998, this mission became more operational in scope, with the creation of a special adviser for internally displaced persons within the Bureau for the Coordination of Humanitarian Affairs of the UN. This broadening UNHCR mandate was extended on a case-by-case basis to allow material assistance to the displaced in cases qualified as being "refugee-like situations." However, this terminology has turned out to be deceptive.
Refugee-Like Situation: A Deceptive Illusion
It is true that a refugee camp closely resembles a camp for the displaced. In both instances, people have fled their homes and require material assistance including shelter, food, and access to health care. These similarities may have given the false impression that the operational response for refugees and displaced people could be the same.
The resemblance sadly stops at material needs and assistance, however, because, as far as protection is concerned, displaced persons do not have the benefit of the physical screen against violence that a border may provide.
Using the concept of "refugee-like situation" as a basis for assisting IDPs puts them in a legal void where there is no right to or guarantee of international protection: they are not legally considered to be "war victims," so they do not come under the 1949 Geneva Conventions. They are not "refugees," and so miss out on the protections afforded by the 1951 Convention.
While a refugee has found refuge, a displaced person remains at the center of turmoil. Displaced people remain within their country, under the control and the laws of their national authorities, and at the mercy of the threats and violence that may be the very reason for their flight.
In 1995, in Srebrenica—a "safe haven" during the war in the former Yugoslavia—MSF was able to provide material medical assistance, but could do nothing when civilians were rounded up and executed. The agencies charged with protecting civilians were unable to do so. The same year in Kibeho, a camp for the displaced run by the UN in Rwanda, nothing was done to oppose or denounce the massacre of displaced persons by the Rwandan army in an attempt to close down the camp. The massacres of Srebrenica in ex-Yugoslavia and Kibeho in Rwanda are two tragic examples showing that international protection for displaced persons against violence committed by their own country's armed forces is illusory.
Despite huge amounts of humanitarian aid, from Burundi to the former Yugoslavia, via Sierra Leone, Sudan, and Chechnya, material assistance alone has not been able to limit violence to these populations to "acceptable" levels.
So, while extending the UNHCR mandate has made it possible to assist displaced persons, it has not resolved the basic problem of their protection. Although the international law of armed conflict establishes the framework for this protection, its implementation by UN agencies has been limited.
Under cover of an institutional and legal "solution," such as the extension of the UNHCR mandate, lurks the risk of sacrificing the right of these people to flee. Equating refugee and "refugee-like situations" simply legitimizes the closing of borders already undertaken by many countries. In a number of cases, the existence of internally displaced persons is a direct consequence of national and international policies that actively discourage or even prevent people from fleeing their own countries and seeking asylum beyond their borders. Such practices range from closing borders to forcibly repatriating people. This happened in 1994-1996 in Africa's Great Lakes area, and is happening right now as all Afghanistan's neighbors seal their borders.
The case of Afghanistan is a good illustration of the danger. No one can deny that this country has been in a state of civil war for 20 years and that this situation is now compounded by famine and armed confrontation with the United States. However, faced with the movements of people, all of the surrounding countries have closed their borders to those attempting to flee. Iran has even proposed creating refugee camps inside Afghanistan, demonstrating that "containment" is the real political rationale behind assistance in situ (in place) to displaced populations.
The reasons for the reticence of UN agencies to refer to the law of war go much deeper than a simple lack of expertise about this specific body of international law. In many countries in conflict, the UN is in fact charged with a double mission: a humanitarian mission and a mission to maintain or restore peace. Within this context, UN agencies prefer to stress the existence of peace accords, however fragile, patchy, and illusory they may be, rather than the ongoing effects of the conflict. This tendency is in keeping with the history of the organization. In 1949, already, the UN decided not to participate in the drafting of the Geneva Conventions on the law of armed conflict to better concentrate on its peace mission.
International protection for internally displaced persons will not miraculously appear by creating a new law, nor by designating a specialized agency in charge of coordination of assistance. The challenge of implementing the law of armed conflict with respect to displace people requires a comprehensive commitment from UN agencies. It also requires humanitarian NGOs to change their operational habits. They should not only concentrate on treating the effects of displacement by giving assistance. They should be able to question and investigate the causes of displacement in order to make sure their assistance does not facilitate the perpetration of crimes and violence against these people. The humanitarian actor has to ask two questions about people displaced within their own country: Why are they obliged to move from their home? Why are they displaced inside their country rather than fleeing the country altogether?
Moreover, in some situations, population displacements are not a secondary effect of conflict but an integral part of military strategies aimed at controlling the population, the territory and its wealth, or controlling supplies and aid. This control leads to forcing the population to flee in order to free territory, directing and controlling its movements in order to obtain military advantage, or grouping people together to act as a human shield, a bargaining chip, a manpower tank, or even as bait for humanitarian aid.
This method of war has been regulated since 1949 by the international law of armed conflict, which forbids such forced movements and qualifies them as war crimes. There is a difference between displacement indirectly caused by conflict and displacement that is an integral part of the military strategy. Since the adoption of the statute of the international permanent criminal court in Rome in 1998, the latter is considered a war crime and a crime against humanity, and falls under the jurisdiction of this international tribunal. It is thus important for NGOs and international humanitarian actors to be able to distinguish between situations that are normal consequences of armed conflict and those that are war crimes.
Differing from human rights law, the law of armed conflict includes the operational responsibility of humanitarian organizations as a way and means to limit violence and crimes against people in danger. This operational responsibility, shouldered by the UN and NGOs, is the most direct way to protect internally displaced people.
For more information, consult the Practical Guide to Humanitarian Law by Françoise Bouchet-Saulnier (Editions La Découverte, 2000). Available in French, Spanish, and English.