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Published online by Cambridge University Press: 13 January 2010
In recent years a number of institutions, in particular non-governmental organizations, have brought their attention to bear on the plight of people displaced within national borders. Prompted by their interest in the protection of human rights, and in keeping with the charitable nature of their work, they have focused the international spotlight on the situation of those who leave their homes in a context marked by political violence. The international community has thus been made aware of two things simultaneously: first, that countries affected by internal armed conflicts have a large number of displaced persons, and second, that armed clashes often result in large-scale population movements. The displacement of minority communities can even become a deliberate policy.
1 For example, the Commission of the Churches on International Affairs and the Friends World Committee for Consultation (Quakers) submitted to the Commission on Human Rights a communication on internally displaced persons (document E/CN.4/1991/N60 1 of 15 December 1990).
2 Pursuant to the initiative mentioned in footnote 1 above, the 47th session of the Commission on Human Rights adopted resolution 1991/25 on internally displaced persons. At its 48th session the Commission adopted resolution 1992/73, requesting the Secretary-General to collect the views of the governments and the intergovernmental and non-governmental organizations concerned and to report to the 49th session.
3 The Commentary on the Additional Protocols of 8 June 1977 defines humanitarian law as follows: “the expression international humanitarian law applicable in armed conflicts means international rules, established by treaties or custom, which are specifically intended to solve humanitarian problems directly arising from international or non-international armed conflicts and which, for humanitarian reasons, limit the right of Parties to a conflict to use the methods and means of warfare of their choice or protect persons and property that are, or may be, affected by conflict. The expression ‘international humanitarian law applicable in armed conflict’ is often abbreviated to international humanitarian law or humanitarian law”. ( Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Yves, Sandoz, Christophe, Swinarski, Bruno, Zimmermann, eds., ICRC/Martinus Nijhoff Publishers, Geneva, 1987, p. xxvii).Google Scholar
4 At 30 September 1992, 174 States were party to the four 1949 Geneva Conventions.
5 At 30 September 1992, 106 States were party to Additional Protocol II (116 were party to Additional Protocol I).
6 It is generally considered that the level of strife required for common Article 3 to apply is lower than that required for the application of Protocol II (see Commentary on the Additional Protocols, op. cit., p. 1350, para. 4457).Google Scholar Moreover, the definition of armed conflict as set forth in Protocol II requires that one of the parties concerned be made up of government armed forces (Art. 1, para. 1). Thus, if several factions clash without the involvement of the government armed forces, only common Article 3 is applicable (ibid., p. 1351, para. 4461).
7 See inter alia Sassòli, Marco, “Mise en œuvre du droit international humanitaire et du droit international des droits de l'homme: une comparaison”, in Annuaire suisse du droit international, Vol. XLIII, 1987, p. 51.Google Scholar
8 For an up-to-date list of the States having declared, extended or cancelled a state of emergency (about 70 since 1 January 1985), see Mr. Leandro Despouy's 5th annual report to the Commission on Human Rights, E/CN.4/Sub.2/1992/23, 6 July 1992.
9 See inter alia Kouhene, Mohamed El, Les garanties fondamentales de la personne en droit humanitaire et droits de l'homme, Martinus Nijhoff Publishers, Dordrecht, 1986, p. 145.Google Scholar
10 See Eide, Absjørn, “The laws of war and human rights. Differences and convergences”, in Studies and essays on international humanitarian law and Red Cross principles, in honour of Jean Pictet, Christophe, Swinarski ed., ICRC/Martinus Nijhoff Publishers, Geneva, 1984, p. 690.Google Scholar
11 See Meron, Theodor, Human rights and humanitarian norms as customary law, Clarendon Press, Oxford, 1989, pp. 155–171.Google Scholar
12 See Sassòli, , op. cit., p. 53.Google Scholar
13 See Eide, , op. cit., p. 697.Google Scholar
14 Common Article 3 is nevertheless applicable to military operations, even though the solutions it offers are very limited. See Goldmann, Robert Kogod, “International humanitarian law and the armed conflicts in El Salvador and Nicaragua”, The American University Journal of International Law and Policy, Vol. 2, No. 2, Fall 1987, p. 547.Google Scholar
15 See note 6 above.
16 P II, part iv.
17 P II, Art. 13, par. 2.
18 P II, Art. 14, first sentence.
19 ibid., second sentence.
20 P. II, Art. 17.
21 See “Rules of international humanitarian law governing the conduct of hostilities in non-international armed conflicts”, International Review of the Red Cross, No. 278, 09–10 1990, p. 388.Google Scholar
22 ibid., p. 389. See also Plattner, Denise, “The 1980 Convention on Conventional Weapons and the applicability of the rules governing means of combat in a non-international armed conflict”, IRRC, No. 279, 11–12 1990, p. 554.CrossRefGoogle Scholar
23 “Rules of international humanitarian law governing the conduct of hostilities in non-international armed conflicts”, (Note 21), p. 395.
24 ibid., p. 395 ff.
25 See Mourey, Alain, “Famine and war”, IRRC, No. 284, 09–10 1991, p. 552 CrossRefGoogle Scholar; see also the resolution adopted by the Council of Delegates of the International Red Cross and Red Crescent Movement in Budapest on the protection of the civilian population against famine in situations of armed conflict, IRRC, No. 286, 01–02 1992, p. 57.CrossRefGoogle Scholar
26 P II, Art. 5.
27 GC I–IV, Art. 3 ( 1.d ), and P II, Art. 6.
28 Inter alia GC I–IV, Art. 3 (1), and P II, Art. 4.
29 See note 8 above.
30 These are injunctions with which the civilian and military authorities must comply, no matter what the circumstances, with regard to any person under their authority (see footnote 28 above).
31 The following are expressly prohibited: killing (GC I–IV Art. 3.1 (a), P II, Art. 4.2(a)); summary executions (GC I–IV Art. 3.1 (a) and (d)), P II, Arts. 4.2(a) and 6.2); physical and mental torture, mutilation and corporal punishment (GC I–IV Art. 3.1 (a), P II, Art. 4.2(a)); rape, enforced prostitution and indecent assault (GC I–IV Art. 3.1(c), P II, Art. 4.2(e)); pillage (GC I–IV Art. 3.1, P II, Art. 4.2(g)); collective punishment (GC I–IV Art. 3.1, P II, Art. 4.2(b)); the taking of hostages (GC I–IV Art. 3.1(b), P II, Art. 4.2(c)); acts of terrorism (GC I–IV Art. 3.1, P II, Art. 4.2(d)). It is also prohibited to threaten protected persons with any of the above acts (GC I–IV Art. 3.1, P II, Art. 4.2(h)).
32 The obligation to respect person, honour and convictions and religious practices (GC I–IV Art. 3.1, P II, Art. 4.1), and the prohibition on inflicting or threatening to inflict any form of humiliating or degrading treatment other than that expressly prohibited (GC I–IV Art. 3.1(c), P II, Art. 4.2(e) and (h)) constitute the principal aspects of the general obligation to treat non-combatants or persons hors de combat humanely (GC I–IV Art. 3.1, P II, Art. 4.1). Moreover, by virtue of the prohibition of adverse distinction set forth in P II, Art. 4.1 and defined in detail in common Article 3 (“adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria”), discriminatory treatment is also contrary to the obligation of humane treatment.
33 See “Respect for international humanitarian law — ICRC review of five years of activity (1987–1991)”, in IRRC, No. 286, 01–02 1992, p. 83.Google Scholar
34 GC I–IV Art. 3.2, P II, Arts. 7 and 8.
35 P II, Art. 9; see also “Rules of international humanitarian law governing the conduct of hostilities in non-international armed conflicts”, (Note 21), p. 391.Google Scholar
36 P II, Art. 11; see also Note 21, p. 391.
37 For the definition of medical personnel, see ibid., p. 392. Medical facilities comprise medical units and medical means of transport; for their definition, see Commentary on the Additional Protocols, op. cit. p. 1433, paras. 4711 and 4712.Google Scholar
38 PII, Art. 12.
39 PII, Art. 18.2.
40 On this subject, see the series of articles on humanitarian assistance which appeared in IRRC, No. 288, 05–06 1992 Google Scholar, in particular: Sandoz, Yves, “‘Droit’ or ‘devoir d'ingérence’ and the right to assistance: the issues involved”, p. 220 Google Scholar; Torrelli, Maurice, “From humanitarian assistance to ‘intervention on humanitarian grounds’?”, p. 246 Google Scholar; Plattner, Denise, “Assistance to the civilian population: the development and present situation of international humanitarian law”, p. 262.Google Scholar See also Sommaruga, Cornelio, “Assistance to victims of war: international humanitarian law and humanitarian practice”, p. 376 Google Scholar, and Maurice, Frédéric, “Humanitarian ambition”, p. 369 Google Scholar, in IRRC, No. 298, 07–08 1992.Google Scholar
41 The United Nations Children's Emergency Fund, whose mandate is to assist children, has been particularly active in Sudan.
42 Among the assistance activities undertaken by the office of the United Nations High Commissioner for Refugees are those carried out in Iraqi Kurdistan and in the former Yugoslav republics.
43 The United Nations Development Programme's operation in Mozambique, undertaken in cooperation with the government, is an example of this agency's work in war-torn countries.
44 In September 1992, for example, the World Food Programme and the ICRC embarked on a joint 100-day relief operation in Somalia.
45 MSF and the Save the Children Fund are active in Somalia, for example; they are also present in Mozambique, as are Oxfam and many other non-governmental organizations.
46 Maurice, Frédéric, The ICRC's work to assist civilian refugees and displaced persons Google Scholar — an operation-by-operation description 1991, 01 1992, p. 2 Google Scholar (paper available from the ICRC).
47 See Patrnogic, Jovica, “The evolution of the right to assistance — concluding statement”Google Scholar, in the Institute of International Humanitarian Law's report on the XVIIth Round Table on problems of humanitarian law (San Remo, 2–4 September 1992). See infra, pp. 592.Google Scholar
48 See letter (a) of the General Conclusion on International Protection adopted by the 43rd session of the Executive Committee of the High Commissioner's Programme (5–9 September 1992), according to which the UNHCR assumes its responsibilities “within the framework of international refugee law and applicable regional instruments, with due regard for human rights and humanitarian law” (see the Report on the 43rd Session of the UNHCR Executive Committee, A/AC.96/8041, of 15 October 1992).
49 Maurice, Frédéric and de Courten, Jean, “ICRC activities for refugees and displaced civilians”, IRRC, No. 256, 01–02 1991, pp. 14 and 18.Google Scholar
50 During the Gulf war, international humanitarian law was mentioned in Security Council resolution 666 of 13 September 1990, and subsequently in resolutions 670 and 674, to mention only the first 12 resolutions. In connection with the former Yugoslavia, at 31 October 1992 humanitarian law had been referred to in resolution 764 of 13 July 1992, resolution 771 of 13 August 1992, and resolution 780 of 6 October 1992.
51 Security Council resolution 688 of 5 April 1991 condemned the repression of the Iraqi civilian population and insisted that Iraq “allow immediate access by international humanitarian organizations to all those in need of assistance in all parts of Iraq and to make available all necessary facilities for their operations”.
52 See resolutions 733 of 23 January 1992, 746 of 17 March 1992, 751 of 24 April 1992 and 767 of 24 July 1992 (at 31 October 1992).
53 See, for example, resolutions 1987/51, 1988/65, 1989/68, 1990/77 and 1991/75 adopted by the Human Rights Commission on the human rights situation in El Salvador, which referred to common Article 3 and to Protocol II.
54 The Statutes of the International Red Cross and Red Crescent Movement, adopted by the States and the Movement's components as members of the International Conference of the Red Cross and Red Crescent, require the ICRC to work for the faithful application of international humanitarian law and to ensure the protection of and assistance to military and civilian victims of armed conflicts. In so doing, the ICRC must honour the principle of impartiality (Art. 5, paras. 2(c) and 2(d) of the Movement's Statutes; for the complete text, see IRRC, No. 256, 01–02 1987, p. 25 ff.).CrossRefGoogle Scholar
55 Judgment of the International Court of Justice in the case of military and para-military activities in and against Nicaragua, ICJ, Reports of Judgments, Advisory Opinions and Orders, The Hague, 1986, p. 104, para. 220.Google Scholar
56 See Condorelli, Luigi and de Chazournes, Laurence Boisson, “Quelques remarques à propos de l'obligation des Etats de ‘respecter et faire respecter’ le droit international humanitaire ‘en toutes circonstances’”, in Studies and essays on international humanitarian law and Red Cross principles, (Note 10), p. 26 ff.Google Scholar
57 As concerns in particular the fact that Article 1 common to the Geneva Conventions cannot serve as grounds for an armed intervention, see Sandoz, Yves, “L'intervention humanitaire, le droit international humanitaire et le Comité international de la Croix-Rouge”, in Annales du droit international médical, No. 33, 1986, p. 35 Google Scholar, and, by the same author, “‘Droit’ or ‘devoir d'ingérence’ and the right to assistance: the issues involved”, (Note 40), p. 230; see also Sachariew, Kamen, “States' entitlement to take action to enforce international humanitarian law”, IRRC, No. 270, 05–06 1989, p. 192 CrossRefGoogle Scholar, and Levrat, Nicolas, “Les conséquences de l'engagement pris par les Hautes Parties contractantes de ‘faire respecter’ les conventions humanitaires”, in Implementation of international humanitarian law. Frits, Kalshoven and Yves, Sandoz, eds., Martinus Nijhoff Publishers, 1989, pp. 263–296 and 289.Google Scholar
58 In this regard, Article 5 of the resolution on the protection of human rights and the principle of non-intervention in the internal affairs of States, adopted on 13 September 1989 by the Institute of International Law, refers to “an offer by a State, a group of States, an international organization or an impartial humanitarian body such as the International Committee of the Red Cross (ICRC), of food or medical supplies…” ( Yearbook of the Institute of International Law, 1990, Vol. 63, Part II, pp. 344–345).Google Scholar
59 GC IV, Art. 59.2.
60 GC IV, Art. 61.1.
61 The ICRC is entitled to visit prisoners of war (GC III, Art. 126) and civilian persons protected by the Fourth Geneva Convention (GC IV, Art. 143). It can act as a substitute for the Protecting Power (GC I–IV, Arts. 10, 10, 10 and 11 resp., and P II, Art. 5). As concerns its role in relief operations, see GC IV, Arts. 23, 59 and 61, and P I, Art. 70. Finally, GC I–IV, Arts. 9, 9, 9 and 10 respectively and P I, Art. 81 give the ICRC a right of humanitarian initiative in international armed conflicts.
62 See note 54 above.
63 Paragraph 2 of common Article 3 in fact provides that the ICRC “may offer its services to the Parties to the conflict”, thus expressing a right of humanitarian initiative applicable in non-international armed conflicts. See Sandoz, Yves, “Le droit d'initiative du Comité international de la Croix-Rouge”, German Yearbook of International Law, Vol. 22, 1979, pp. 364 ff.Google Scholar
64 See “Respect for international humanitarian law: ICRC review of five years of activity (1987–1991), op. cit. In the section on humanitarian law in internal conflicts, the ICRC refers to its activities in the following countries: Sri Lanka, Afghanistan, Mozambique, Uganda, Rwanda, El Salvador, Nicaragua, Yugoslavia, Angola, Ethiopia, Sudan, Somalia, Liberia, Lebanon, Cambodia and Myanmar. For a relatively recent and detailed description of ICRC activities for refugees and displaced persons, see Maurice, Frédéric, The ICRC's work to assist civilian refugees and displaced persons Google Scholar, op. cit.
65 See note 12 above.
66 See the ICRC's 1991 Annual Report Google Scholar, the sections on El Salvador (p. 52) and the Philippines (p. 73). In the same publication, see ICRC activities for the protection of civilians in Liberia (p. 25), Uganda (p. 33), Rwanda (p. 34), Sudan (p. 38), Peru (p. 55) and Colombia (p. 57).
67 These difficulties notwithstanding, we should remember the following assistance operations for civilians conducted by the ICRC in 1991 (see 1991 Annual Report): on both sides of the front lines in Angola (p. 17) and Mozambique (p. 20); in Liberia, including NPLF zones (p. 25); in conflict zones in Uganda (p. 33); in Rwanda, where it intervened to prevent the grouping of displaced people in overcrowded camps (p. 34); in both government and SPLA-controlled areas in southern Sudan, where it brought in and distributed thousands of tonnes of food (p. 39); in Sri Lanka, where it brought in 79,000 tonnes of food by sea and land (p. 76); and in Yugoslavia, where from November to December 1991 ICRC ships plied the coast to help civilians cut off by the fighting (p. 90).
68 See Sommaruga, Cornelio, “Assistance to victims of war”, (Note 40), p. 374.Google Scholar
69 See Article 70, para. 3, of Additional Protocol I, applicable to international armed conflicts. For the definition of “the parties concerned” mentioned in the first paragraph of the same article who can have recourse to the facilities provided for in paragraph 3, see Commentary on the Additional Protocols, op. cit., p. 819 Google Scholar, para. 2806. It is hardly likely that the party to benefit from an offer to provide relief would be opposed to it.
