The Journal of Humanitarian Assistance
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ABSTRACT
While refugee numbers continue to decrease around the world, the number of internally displaced persons (IDPs) continues to steadily rise. The fact that they remain within national territory means that they cannot seek to qualify as bona fide “refugees” entitled to the special protective regime accorded to refugees under international law. This paper explores the protection of IDPs as an emerging area of international law and seeks to understand the practical application of law as exemplified by international responses to the specificities of the north-south internal displacement phenomenon in the Sudan following the signing of the 9 January 2005 Comprehensive Peace Agreement. The paper thus explores the application of international legal norms as public policy, in practice, and at the field level, while focusing on the abuse of the social, cultural, economic, political and civil rights of Sudanese IDPs.
This paper looks at the impact Human Rights notions have on international peace and security. It discusses how human rights and international peace and security are interrelated and interdependent and that the fostering of one promotes the enhancement of the other and that the needs for universal respects for Human Rights and Peace respectively can be reconciled under international law, if the use of force remains the last resort in the problems of human rights. It also incorporates a step by step procedure for the enforcement of human rights under international law.
It is the aim of this thesis to analyze the international humanitarian law which is
applicable to wars of national liberation and to discuss the protection afforded thereby
to both civilians and those involved in combat. Four chapters are presented that specifically address traditional international law; development of international humanitarian law through adoption of the Geneva Conventions; development of the principle of self-determination and the ‘internationalism’ of wars of national liberation; and the results of Protocol 1 regarding international conflict. This thesis ultimately seeks to illustrate that the international community has failed, despite the various provisions which could, in theory, apply to wars of national liberation, to properly implement the international humanitarian law in these types of conflicts.
In recent years, many international lawyers and scholars have noted a substantial convergence between international human rights law (“IHRL”) and international humanitarian law (“IHL”).[1] This convergence is due in large measure to the distressing proliferation of violent internal armed conflicts in many parts of the world.[2] Whether in Cambodia, El Salvador or Sierra Leone, these conflicts have served to highlight the chief inadequacies of IHRL and IHL and have, as a consequence, provoked discussion about how such inadequacies ought to be remedied so as to afford better protection to the millions of victims of such conflicts.[3] Among the chief concerns in this debate is the prevailing confusion about the proper application of IHRL and IHL in the context of such conflicts, since many people continue to think that IHRL only applies in times of peace, and that only IHL applies in times of war. This confusion is compounded by the seeming absence in contemporary international law literature of any straightforward analysis of the interplay between the norms and institutions relevant to IHL and IHRL protections in the context of such conflicts.
Accordingly, this paper attempts to tackle this issue and begin to fill the gap in the legal literature by providing a modest but cogent account of the normative and institutional interplay between IHRL and IHL in the context of internal armed conflicts. The paper itself will be divided into three main sections: (i.) an analysis of the different types of conflict that are recognized under international law; (ii.) an examination of the applicable norms of IHL and IHRL in the context of internal armed conflicts; and (iii.) a brief review of the principal institutions with competency to provide redress for violations of IHL and IHRL committed in the course of such conflicts.
However, before proceeding, a few brief remarks must be made about the scope and design of the paper. First, this paper focuses exclusively on the provisions of IHL that relate to the protection of victims of internal armed conflicts, and does not examine the provisions of IHL that relate to the conduct of hostilities in such conflicts. Second, this paper deals with treaty-based sources of IHL and IHRL, and does not generally examine customary international law or jus cogens norms. Third, this paper focuses exclusively on international legal norms, and does not deal with any comparable protections under regional or national laws. Lastly, as an aid to the reader, this paper contains an appendix that sets out the principal acronyms and abbreviations used throughout the paper, together with their definitions.[4]
A quick glance at the United Nations (UN) Charter shows that human rights are not protected by the collective security system since there are only mentioned in article 1 (enumerating the purposes of the UN) and article 55 (belonging to the UN co-operation system). "The Charter clearly distinguishes between action taken to restore and maintain international peace (…) and action taken to create the conditions of stability and well-being necessary for peaceful and friendly relations among States". Indeed human rights, at the time of the drafting of the Charter, were considered as domestic matters protected from external interference by article 2(7) and by customary international law. However, the analysis of practice reveals that violations of human rights are more and more frequently and specifically discussed and even sometimes condemned by UN bodies.
Astoundingly though, the Security Council (SC) has no special powers concerning human rights and international humanitarian law, despite the reluctance of some countries like China and Zimbabwe, it has become involved in this realm and acted within the framework of the collective security system. Such a development can be explained by the change of armed conflicts’ nature: nowadays combatants do not fight only against combatants but also against the civilian population who becomes the direct target of attacks. The idiosyncrasy of the third generation of civil war has therefore encouraged the Security Council to become active.
Nonetheless, a closer analysis unveils that the protection of human rights in peacetime and warfare offered by the Security Council is rather weak and that today its only success is the provision of humanitarian assistance.
One could be surprised by such a statement since one could genuinely believe that it is easier to enforce rights then a concept which at first sight appears to be without legal basis. Indeed, as stated by René Jean Dupuy: "les droits de l’homme relèvent de l’argument juridique, l’assistance invoque un sentiment d’humanité". In addition, whereas human rights are of inter-State concern, humanitarian assistance is usually regarded as being classically within the realm of non-governmental organisations (NGOs).
The separation of these two notions implies that a right to humanitarian assistance does not exist and hence it cannot be invoked in order to alleviate people’s suffering during warfare. In fact, these two terms stem from different philosophies. In the first case, people’s rights should not be disregarded and in the latter one, these violations are more or less tolerated but should not attain a certain threshold. This solution is usually used when it appears impossible to end violations of human rights. That explains why humanitarian assistance is considered as a substitute to a policy incapable of protecting human rights during war time.
The Security Council when confronted with the civil war in the Former Yugoslavia used both strategies. On the one hand it condemned the violations but since a military intervention in order to enforce its resolutions was rejected by the majority of its members, its requests were never listened to. On the other hand the Security Council decided to provide humanitarian relief to the civilian population and condemned the warring parties attacking the humanitarian convoys and personnel. Can thus humanitarian assistance be considered as a right or is it only a (surrogate) policy without any legal basis?
The right to humanitarian assistance has a twofold meaning:
- the victims’ right to be helped; and
- the organisations’ and States’ right to assist the victims.
This distinction may sound slightly senseless in particular when one thinks in terms of accessibility but legally, it changes the beneficiaries and the dutyholders of that right.
In a first part, I would like to analyse the Security Council’s resolutions pertaining to human rights violations which occurred in the Former Yugoslavia and try to find the legal basis of its actions. In a second part, the emphasis will be put on the existence of the right to humanitarian assistance and the consequences of such an existence.
The purpose of this study is two-fold. First, to determine the (il)legality of the regroupment policy of the government of Burundi and to clarify the law where necessary. Second, to discuss the policy options open to the humanitarian community to correct harsh and frequently life-threatening situation in which the regroupees find themselves. The study does not attempt to draw a picture of of the violations of humanitarian rights in general.
This paper is an attempt to establish a legitimate basis for humanitarian intervention in a world of nominally sovereign states. I do this from two perspectives. First, I examine the legal discussions regarding such intervention, and I argue that a norm of justified intervention can be found in the UN Charter, the Universal Declaration of Human Rights and human rights covenants, as well as developing practice. Second, I examine the moral legitimacy of such actions. Specifically, I argue that beyond whatever basis may be present in international law for human rights and intervention to protect those rights, one can find a foundation for such rights in the very nature of the state system. Further, I argue that sovereignty cannot be a basis to prevent humanitarian intervention because the responsibilities which accrue to states mean that human rights must be seen as a part of the definition of sovereignty, rather than in opposition to it. In addition, within the concept of sovereignty, there is not only a right for the international community to violate international boundaries on behalf of human rights, but an obligation to do so.
Humanitarian Intervention is a problematic instrument of foreign policy; its basis, formulation, and implementation are widely discussed, yet no consensus seems to have emerged so far. All major multilateral humanitarian interventions of this decade – Somalia, Bosnia, and, with qualifications, Rwanda – have proven more than problematic; only the operation to provide a safe zone for the persecuted Iraqi Kurds in the wake of the Second Gulf War has, under very particular conditions, been a relative success. Cautionary comments on humanitarian intervention and pessimism concerning the political feasibility of long overdue reform of the UN system seem appropriate in this context.
In this article I will argue that many of the problems typically associated with this new type of humanitarian assistance are in fact present in all kinds of humanitarian action. I will particularly dispute the claim that a politicisation of the humanitarian relief system lies at the root of the present problems. This claim has relevance only insofar as its bearing on all sorts of humanitarian action is recognised; there are no apolitical decisions in the field of humanitarian assistance. A similar point is made concerning the nature of practical problems supposedly raised by this “new humanitarianism”: practical problems in this field are merely indications of unresolved moral dilemmas haunting all forms of emergency relief.
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