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.

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]

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.