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Refugees and internally displaced persons — International humanitarian law and the role of the ICRC

Published online by Cambridge University Press:  23 November 2010

Extract

The main purpose of this brief study is to show the importance of international humanitarian law, in particular the Geneva Conventions of 1949 and their Additional Protocols of 1977, for internally displaced persons, i.e. persons displaced within their own country, and to refugees, i.e. persons who have fled their country. Not only does this body of international law protect them when they are victims of armed conflict, but its rules — if scrupulously applied — would make it possible to avoid the majority of displacements.

Type
Refugees and Displaced Persons
Copyright
Copyright © International Committee of the Red Cross 1995

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References

1 In addition to the ICRC, the Movement consists of 163 National Red Cross or Red Crescent Societies and the International Federation of Red Cross and Red Crescent Societies (in short, the Federation).

2 We suggest the following works for readers wishing to delve more deeply into this subject: Hans-Peter Gasser, International Humanitarian Law: An Introduction, in Hans Hang Humanity for All, Henry Dunant Institute/Haupt, Geneva, 1993, and Frits Kalshoven, Constraints on the Waging of War, ICRC, 1991.

3 As of 31 March 1995: 185.

4 As of 31 March 1995: 137 States (Protocol I); 127 States (Protocol II).

5 Common Article 3 contains several fundamental principles applicable in every situation of armed conflict, and is itself a “mini-convention”. Protocol II has a higher threshold of application than that of Article 3 inasmuch as the armed opposition must exercise “such control over a part of the territory whereby it can carry out sustained and concerted military operations.”

6 Article 1 common to the Geneva Conventions: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances” (emphasis added). See also Article 89 of Protocol I, whereby States undertake to act in cooperation with the United Nations in situations of serious violations.

7 This involves the principle of universal jurisdiction. Grave breaches (war crimes) are defined in each of the four Geneva Conventions (Article 50 of the First Convention; Article 51 of the Second; Article 130 of the Third; and Article 147 of the Fourth), and in Protocol I (Articles 85 and 11).

8 Also known as the Turku Declaration”. See International Review of the Red Cross (IRRC), No. 282, May-June 1991, pp. 328336Google Scholar.

9 Article 5, para. 2 (c) of the Statutes of the Movement, revised in 1986 by the 25th International Conference of the Red Cross. It should be noted that the States party to the Geneva Conventions attend these international conferences as full members of them and that by participating in the adoption of the Statutes they expressed their desire to allocate specific tasks to the respective components of the Movement.

10 The ICRC denounces grave violations of humanitarian law when all its representations fail and it is in the interest of the victims to make such a denouncement. See Action by the ICRC in the event of breaches of international humanitarian law”, IRRC, No. 221, March-April 1981, pp. 7683Google Scholar.

11 Article 126 of the Third Convention and Article 143 of the Fourth Convention, which stipulate the following conditions for visits: access to all protected people, right to interview such people without witnesses, no restrictions on the frequency of visits.

12 Article 9 of the First, Second and Third Conventions; Article 10 of the Fourth Convention; and Article 81 of Protocol I. Regarding non-international armed conflicts, see Article 3 common to the four Conventions.

13 Article 10 of the First, Second and Third Conventions; Article 11 of the Fourth Convention; Article 5 of Protocol I. In practice, the ICRC most often acts on the basis of its right of initiative.

14 Article 5, para. 2(d) of the Statutes of the Movement.

15 For detailed information, see Harroff-Tavel, Marion, “Action taken by the International Committee of the Red Cross in situations of internal violence”, IRRC, No. 294, May-June 1993, pp. 195220CrossRefGoogle Scholar.

16 The work of the Movement is governed by the following Fundamental Principles: humanity, impartiality, neutrality, independence, voluntary service, unity and universality.

17 Article 5, para. 2(e) of the Statutes of the Movement. In particular, the Central Tracing Agency seeks to restore and maintain ties among members of families split up by conflicts or disturbances, as well as reuniting members of such families.

18 Article 5, para. 3 of the Statutes of the Movement.

19 Resolution 45/6 of 16 October 1990. See IRRC, No. 279, November-December 1990, pp. 581–586.

20 In particular, headquarters agreements confer legal immunity and the inviolability of premises and archives. ICRC delegates generally enjoy diplomatic immunity.

21 Article 1 of the Convention relating to the Status of Refugees (28 July 1951); Article 1 of the Protocol relating to the Status of Refugees (31 January 1967). This definition was expanded by the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (10 September 1969), mainly to include persons having fled from armed conflict or disturbances.

22 Such situations are frequent, e.g. Afghan refugees in Pakistan and Iran; Iraqi refugees in Iran during the Gulf war; and Rwandan refugees in Zaire, Burundi and Tanzania.

23 See Krill, Françoise, “ICRC action in aid of refugees”, IRRC, No. 265, July-August 1988, pp. 328350CrossRefGoogle Scholar.

24 During the Iran/Iraq conflict, the ICRC thus took care of Iranian refugees in Iraq and even helped with their resettlement in other countries. Following the Gulf war, the ICRC also visited more than 20,000 Iraqis held in the Rafha camp in Saudi Arabia; activities by the ICRC and UNHCR were mutually complementary.

25 The ICRC intervened on several occasions during the initial phase of an influx of refugees, e.g. in the following cases: Iraqi Kurd refugees in Iran at the end of the Gulf war (1991); Rwandan refugees in Goma (Zaire) and Ngara (Tanzania) in 1994. When UNHCR was not present, the ICRC looked after Mozambican refugees in South Africa and Iranian refugees in Iraq during the IranAraq war.

26 For example, hospitals for Afghan refugees in Peshawar and Quetta (Pakistan), and for Cambodian refugees in Thailand.

27 For example, the ICRC launched an extensive operation in aid of Cambodian refugees on the Thai-Cambodian border. See Kosirnik, René, “Droit international humanitaire et protection des camps de réfugiés”, in Studies and essays on international humanitarian law and Red Cross principles, in honour of Jean Pictet, ICRC/Geneva; Martinus Nijhoff Publishers, The Hague 1984, p. 387 ff.Google Scholar

28 The ICRC does, however, supervise large-scale repatriations, of prisoners of war in particular, such as those that took place between Iraq and Iran in 1990 (approximately 79,000 prisoners), and between Saudi Arabia and Iraq in 1991 (approximately 80,000 prisoners). The ICRC always ensured that each prisoner of war was willing to be repatriated.

29 The ICRC has spoken out in particular against the repatriation of refugees to Afghanistan, Cambodia, Croatia, Bosnia-Herzegovina and Rwanda. As regards Cambodia, see ICRC Memorandum of 14 November 1990, partially reprinted in Maurice, Frédéric and de Courten, Jean, “ICRC activities for refugees and displaced civilians”, IRRC, No. 280, January-February 1991, pp. 921CrossRefGoogle Scholar.

30 Article 49 of the Fourth Convention: the Occupying Power may, as an exception, undertake evacuations “if the security of the population or imperative military reasons so demand. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased”.

31 See Plattner, Denise, “The protection of displaced persons in non-international armed conflicts”, IRRC, No. 291, November-December 1992, pp. 567580CrossRefGoogle Scholar.

32 Article 18, para. 2 of Protocol II. When these conditions exist, the State must in principle give its consent. As regards relief actions under humanitarian law, see Plattner, Denise, “Assistance to the civilian population: the development and present state of international humanitarian law”, IRRC, No. 288, May-June 1992, pp. 249263CrossRefGoogle Scholar.

33 The civilian population can suffer collateral or incidental damage loss (see Article 51, para. 5 and Article 57, para. 2 of Protocol I). Attacks are prohibited, or must be stopped, if the loss of human life among the civilian population would be excessive in relation to the concrete and direct military advantage anticipated (principle of proportionality).

34 See Maurice and de Courten, op. cit.

35 See Harroff-Tavel, op. cit.

36 The purpose of these visits is to verify the detention conditions and the treatment of detainees. In 1994, the ICRC visited more than 99,000 persons held in 2,470 places of detention in 58 countries.

37 In 1994, the ICRC distributed 167,000 tonnes of supplies of all kinds in 45 countries.

38 In 1994, the Central Tracing Agency delivered 7,721,650 Red Cross messages to and from separated family members.

39 See Blondel, Jean-Luc, “Assistance to protected persons”, IRRC, No. 260, September-October 1987, pp. 451468CrossRefGoogle Scholar.

40 The ICRC's material aid, essentially in food and agricultural rehabilitation, is also directed toward the particularly vulnerable members of the local population and, as the need arises, toward returnees. The ICRC also carries out the following work in Rwanda: visits to persons deprived of liberty; restoring family ties, particularly by registering unaccompanied children; rehabilitation of the drinking water supply system; and basic medical programmes.

41 As regards protection of civilians, see Article 14 of the Fourth Convention (“Hospital and safety zones and localities”), Article 15 of the Fourth Convention (“Neutralized zones”), Article 59 of Protocol I (“Non-defended localities”), and Article 60 of Protocol I (“Demilitarized zones”). For a more detailed study of the matter, see Yves Sandoz, “The Establishment of Safety Zones for Persons Displaced within their Country of Origin,” presented at the Multi-choice Conference on International Legal Issues arising under the United Nations Decade of International Law, Doha, Qatar, 22–25 March 1994.

42 The Council of Delegates is the statutory body where the components of the Movement meet to discuss matters which concern the Movement as a whole.

43 Article 5, para. 4 of the Statutes of the Movement; Articles 18 and 20 of the 1989 Agreement.

44 Article 19 of the 1989 Agreement.

45 The current number of displaced persons is estimated to be around 25 million, or even more, although the concept of ‘displaced person’ is not clearly defined. The causes of displacement vary widely: armed conflict, disturbances, repression, natural disasters, socio-economic conditions, and infrastructural projects (e.g. dams).

46 See in particular his latest report to the Commission on Human Rights, dated 2 February 1995 (ref. E/CN.4/1995/50).

47 The Department of Humanitarian Affairs has created an inter-agency work group on displaced persons.

48 The Lugwig Boltzmann Institute for Human Rights (Austria), the American Society of International Law and the International Human Rights Law Group (United States).

49 The Refugee Policy Group (United States) and the Norwegian Refugee Council (Norway).

50 See the ICRC's reply November 1992 to Mr Deng which is reproduced in this issue of the IRRC, pp. 181–191.

51 See Code of conduct for the International Red Cross and Red Crescent Movement and non-governmental organizations (NGOs) in disaster relief.

52 In an effort to increase respect for humanitarian law, in 1993 the Swiss Government, at the ICRC's suggestion, organized the International Conference for the Protection of War Victims. The next International Conference of the Red Cross and Red Crescent, to be held in Geneva in December 1995, will also discuss measures to be taken to increase this respect.

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