Report of the Conference on the Promotion and Protection of Human Rights in Acute Crisis

Conference on The Promotion and Protection of Human Rights in Acute Crisis

London, 11-13 February 1998

Edited by
Co-Directors: Dr Mukesh Kapila (DFID) and
Professor Nigel S Rodley (University of Essex)
Rapporteurs: Professor Kevin Boyle (University of Essex)
and Ms Aisling Reidy (University of Essex)

Report links: website home page
Table of Contents - Search - Introduction - Recommendations - Opening Address - Papers Presented - Acknowledgements - Appendices
Papers Presented (by author):
1. Kate Mackintosh - 2. Nigel S Rodley - 3. Françoise Hampson - 4.Carlo von Flüe - 5. Geoff Gilbert - 6. Nicholas Morris - 7. David Bassiouni - 8. Philip Wilkinson - 9. Emma Shitakha - 10. Ian Martin - 11. Colleen Duggan

Geoff Gilbert

An Introduction to the Law Relating to the Protection of Displaced Persons in Situations of Armed Conflict




1.1 Well-founded fear
1.2 Persecution for a Convention Reason
  - 1.2.i Persecutor?
  - 1.2.ii Persecution?
  - 1.2.iii Excluded Persons
1.3 If a person qualifies as a refugee under the 1951 Convention, then they shall not be refoulé to a State where their life or freedom would be threatened - Article 33.




See elsewhere: Author's Biography (appendix C)



This paper divides into four sections, although in reality these distinctions are not so clear-cut: the obligations of States towards displaced persons; the position of UNHCR in acute crises; the obligations of States toward displaced persons in time of armed conflict under humanitarian law; and, problems for displaced persons and UNHCR not so far resolved.

1. The Obligations of States toward Displaced Persons

The term displaced persons is used to refer to both those who have crossed an international border and may qualify as refugees and to those who are internally displaced. The starting point with respect to the obligations of States is the 1951 Convention Relating to the Status of Refugees1 - States surrounding the State suffering the acute crisis will bear the initial burden of anyone who manages to cross an international border, but subsequently acute crises will give rise to refugee flows to Europe and North America and other industrialised States.

The 1951 Convention, as amended by its 1967 Protocol, imposes obligations on States with respect to anyone who

"owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it". (Article 1A.2)2

While twentieth century practice towards displaced persons focused originally in the inter- War period on groups, the 1951 definition has become very individualised - can this particular applicant for refugee status show a fear of persecution for one of the five enumerated grounds. The result, discussed more fully below, is that people fleeing armed conflict or other acute crisis still need to prove that they have a well-founded fear of persecution for one of the Convention reasons. Ordinarily, those fleeing armed conflicts will not automatically qualify as refugees according to UNHCR’s 1979 Handbook on Procedures and Criteria for Determining Refugee Status:3

"Persons compelled to leave their country of origin as a result of international or national armed conflicts are not normally considered refugees. ... However, foreign invasion or occupation of all or part of a country can result in persecution. ... Thus, every case has to be judged on its merits ...."

1.1 Well-founded fear

No attempt is made here to explore fully the intricacies of the terms set out in Article 1A.2.4 The fear must be subjective to the applicant, but must also be objectively justified. The more objective evidence there is for the fear, the more immigration officials will accept an assertion of personal fear.

1.2 Persecution for a Convention Reason

1.2.i Persecutor?

This requirement raises a number of issues. The first concerns from where must the persecution stem. There is no problem where the State is the source of persecution or where it encourages or condones persecution by third parties. There is, however, a lack of consensus where the State fails to be able to prevent persecution by a third party, such as a rebel insurgent group, and where the State has collapsed, such that no one power is in control.5

1.2.ii Persecution?

As for what amounts to persecution, violations of the non-derogable civil and political rights, pre-eminently torture, obviously fulfil the test, given the fear is current. Detention can also amount to persecution, particularly if it is the consequence of the applicant’s exercise of a matter of conscience. Less certain is whether interference with economic, cultural and social rights will suffice - discrimination against an ethnic group within the State in relation to the opportunity to obtain work or the allocation of housing could in certain circumstances be seen as persecution.6

The problem with being caught up in an armed conflict, international or non-international7, is that the threat to life and human dignity may not be seen as persecution - there is nothing individualized in the threat. That position may be changing, though, and the Canadian Immigration and Refugee Board produced Guidelines on Civilian Non-Combatants Facing Persecution in Civil War Situations8 in 1996 which adopt the opposite interpretation to that traditionally held to be the law. Under the Canadian approach, one has to see whether the applicant can prove a link between her/his fears arising from the armed conflict and persecution for a Convention reason, but the claimant need not show that s/he was personally targeted. Recent non-international armed conflicts have evinced tactics which violate the laws of war9 or constitute gross human rights violations for Convention reasons, such as ethnic cleansing in Bosnia-Herzegovina or genocide in Rwanda.

"Where the persecution which has occurred, or the possibility of persecution in the future, is directed at the claimant’s group as a whole rather than each individual member of the group, it is the fact of membership in the group which provides the foundation for the fear. Where the targeting is due to the possession of a certain characteristic related to a Convention ground, then all those who possess the characteristic may be at risk of harm by reason of their possession of that characteristic. In such a case, the linkage to a Convention ground is not negated by the fact that the persecutor does not ‘discriminate’ between one possessor of the characteristic and another possessor of the same characteristic. What is important is that the group is targeted, or that there is a reasonable possibility of the targeting of the claimant or the group in the future."10

Under the Canadian Guidelines, being killed in crossfire between opposing militia is a risk for all civilians in an armed conflict: on the other hand, being the subject of shelling because your village is principally populated by members of a particular ethnic group, being raped because you are a woman from a particular ethnic group, suggests Convention refugee status for the applicant.

1.2.iii Excluded Persons

By way of corollary, it should also be borne in mind that a person with respect to whom there are serious reasons to believe that they have committed war crimes, crimes against peace or crimes against humanity, other serious non-political crimes or acts contrary to the purposes and principles of the United Nations, shall not enjoy refugee status - Article 1F. It should not be thought, however, that unarmed, civilian UNHCR workers should have to exercise this exclusionary power where those with respect to whom there are these serious reasons for denying refugee status are still armed and exercising influence in camps.

1.3 If a person qualifies as a refugee under the 1951 Convention, then they shall not be refoulé 11 to a State where their life or freedom would be threatened - Article 33. 12

Where the person is displaced across an international border in Africa, then the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa13 will provide additional rights14 and obligations. Having reiterated Article 1A.2 of the 1951 Convention, the OAU Convention provides:

"Article 1.2 - The term ‘refugee’ shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality".15

Within the African continent, which has the largest number of the people of concern to the United Nations High Commissioner for Refugees16, people displaced by acute man-made crises are therefore accorded refugee status, although if they leave Africa their claim will be judged under the 1951 Convention.

Beyond the Conventional protection of refugees, customary international law may also have a role to play. If non-refoulement is to have any practical effect, then displaced persons must have a right to seek asylum in line with Article 14 of the Universal Declaration of Human Rights, 1948. Furthermore, considered opinion is that non-refoulement is also customary international law - the only question is the scope of customary non-refoulement. Is it only as broad as Article 33 and tied to the Article 1A.2 definition of refugees, or does it bear a wider meaning? Would it protect all those from a war zone, even if they could not prove individualized persecution for a Convention reason?17 Does the temporary protection offered in the West enhance or detract from the customary status of non-refoulement? Should temporary protection be formalised? All these questions go beyond the scope of this paper, but they have a bearing on States’ obligations to those fleeing acute crises.

Finally in this section on States’ obligations, international human rights law has been seen to have a direct part in the protection of displaced persons in an acute crisis under both the 1984 United Nations Convention Against Torture18 and the European Convention for the Protection of Human Rights and Fundamental Freedoms.19 Under Article 3 of the Torture Convention, States are obliged not to

"expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing he would be in danger of being subjected to torture."

Article 3 of the ECHR similarly guarantees all persons within the jurisdiction of a State party freedom from torture or inhuman or degrading treatment or punishment. The European Court of Human Rights has applied this protection such that if a third State would breach those rights, then the ECHR State party would be in violation if it were to return a person to that third State.20

It may seem strange to have started a paper on the rights of displaced persons in time of acute crisis by focusing on States’ obligations not to return them, as if they were already clear of the war zone and in an industrialized State in the West. However, those rights apply to persons who cross any international border who fear persecution for a Convention reason. Furthermore, this approach should also make it clear that displaced persons are owed rights by States and that it is the obligation of States to protect them from that persecution.


1 189 UNTS 50. And see the 1967 Protocol, 606 UNTS 267. The obligation toward children is reiterated in Article 22 of the Convention on the Rights of the Child, 28 INT.LEG.MAT. 1448 (1989). [...back to main text]

2 In its original formulation, refugee status could be restricted to those displaced as a result of events occurring before 1951 in Europe - some States, such as Turkey, maintain the geographical limitation. As at 30 November 1996, Congo, Madagascar, Monaco, Hungary, Malta and Turkey limit refugees to those arising as a result of events in Europe. Madagascar and Monaco have not yet adhered to the 1967 Protocol, so the temporal limitation is also extant in their case. [...back to main text]

3 1979, at paras.164-66. [...back to main text]

4 Readers are advised to consult G. Goodwin-Gill, The Refugee in International Law, 2nd ed., 1996, for a scholarly exposition. There is also the EU Joint Position on the Definition of Article 1 of the 1951 Convention, OJ (1996) L 63 p.12. [...back to main text]

5 e.g. Somalia. [...back to main text]

6 Gashi and Nikshiqi v Secretary of State for the Home Department, unreported IAT, Appeal No.HX/ 75677/95 (13695), 22 July 1996, concerning Albanians from Kosovo. [...back to main text]

7 Most armed conflicts are now non-international - see, UNHCR, The State of the World’s Refugees: A Humanitarian Agenda, 1997, Figure 1.5, at p.24. [...back to main text]

8 Issued pursuant to s65(3) Immigration Act - last updated as at 22 February 1997. Available at [...back to main text]

9 See common Article 3 of the Geneva Conventions 1949 and Articles 4, 13 and 14 of Protocol II, 1977. [...back to main text]

10 Canadian Guidelines, supra n, Analysis, §II - footnote omitted.[...back to main text]

11 i.e. sent back.[...back to main text]

12 “Prohibition of Expulsion or Return ('Refoulement')

  1. No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

  2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”

[...back to main text]

13 1001 UNTS 45. [...back to main text]

14 Voluntary Repatriation as set out in Article V will be considered below. [...back to main text]

15 See also, the Cartagena Declaration on Refugees, 1984, OAS/Ser.L/V/II.66, doc.10, rev.1, pp.190-93. [...back to main text]

16 See supra n at pp.286-89.[...back to main text]

17 Additionally, if the displaced person is a protected person within the meaning of Geneva Convention IV, 1949, then sending them back to a war zone might also violate the State's obligations under that Convention. [...back to main text]

18 23 INT.LEG.MAT.1027 (1984) & 24 INT.LEG.MAT.535 (1985). [...back to main text]

19 ETS 5 (1950); hereinafter, ECHR. [...back to main text]

20 See Soering v United Kingdom, Series A, vol.161; Chahal v United Kingdom, (70/1995/576/662), 15 November 1996; Ahmed v Austria, (71/1995/577/663), 17 December 1996. [...back to main text]

2. UNHCR and Acute Crises

When one thinks of displaced persons in time of acute crisis, the work of the United Nations High Commissioner for Refugees comes to the fore. During the 1990s, the United Nations has been in a position to act in a more interventionist way. Sometimes this was manifested as in the war against Iraq up to the liberation of Kuwait, sometimes with less resolute action, such as UNPROFOR’s unclear role in Bosnia-Herzegovina, sometimes by the equivalent of "applying a sticking plaster to a gash to the carotid artery".21 It is principally with respect to these last two types of situation that UNHCR has had to deal. Where resolute action and political will to bring the crisis to an end were not forthcoming from the United Nations, the resulting displacement of civilians has meant that UNHCR has had to provide protection in circumstances which were not secure, either for those displaced or for its own staff. UNHCR cannot ‘solve’ a crisis which has given rise to displacement, only States can resolve the crisis, with UNHCR providing protection to persons within its concern.

In this section, the position of UNHCR will be considered in the light of its mandate and taking account of its extended functions as the United Nations has required it to undertake a greater role in acute crises. It should first be noted that under Article 35 of the 1951 Convention, States parties must co-operate with UNHCR in supervising the application of the Convention’s provisions. Nevertheless, the High Commissioner’s own mandate was laid down in the 1950 Statute of her office.22 It has subsequently been expanded.23 It needs to be emphasised that the High Commissioner’s mandate is one of protection; if assistance is provided, then it is only as an adjunct to protection.24 Furthermore, the work of UNHCR is to be

"of an entirely non-political character; it shall be humanitarian and social and shall relate, as a rule, to groups and categories of refugees."

The High Commissioner reports to ECOSOC and thence to the General Assembly. The General Assembly, by virtue of paragraph 9 of the Statute, can extend the mandate. The High Commissioner is also advised by the decisions of the Executive Committee (EXCOM).25 What needs to be noted is that there is no express operation-oriented role in the Statute for either the Secretary-General or the Security Council, although both can invite UNHCR to act.26

There are three areas where UNHCR’s role has come to the fore in recent years. The first concerns voluntary repatriation. Voluntary repatriation is mentioned in the Statute,27 alongside assimilation into the new national communities in which the refugees find themselves - the overarching responsibility of UNHCR is protection which must govern whether a voluntary repatriation or assimilation is the preferred option. Voluntary repatriation, however, is acknowledged to be the optimal solution. The main question for international law is just how voluntary must the repatriation be?28 The OAU Convention29, provides:

"Article V.1 - The essentially voluntary character of repatriation shall be respected in all cases and no refugee shall be repatriated against his will."

Thus, States in Africa which are hosting refugees, as defined, cannot, at least in theory, repatriate them against their will. While voluntary repatriation is mentioned as one of its functions in the Statute, UNHCR has appeared to treat it as its primary response to refugee influxes in recent years. It is laid down as a task of UNHCR in Article I.5 of the Dayton Agreement and in the Quadripartite Agreement between UNHCR, Russia, Georgia and Abkhazia of 4 April 1994.30

"Until a few years ago, it was assumed that repatriation could take place only after a significant change in the political order of the refugee creating country, or following a peace settlement. Today, voluntary repatriation is considered the most desirable solution to humanitarian crises, and active steps are being taken to create favourable security, political, human rights and socio-economic conditions to enable refugees and displaced persons to return home. Voluntary repatriation is now taking place to relatively safe and secure areas in countries engulfed in internal conflict or in the absence of a peace agreement."31

Whether Rwanda was safe at the end of 1996 when there were mass returns from camps in Burundi, the former Zaire and Tanzania is open to question. Amnesty International has accused UNHCR of ignoring the true human rights situation in Rwanda at that time.32 Repatriation is, without doubt, one of the main areas where the rights and responsibilities of UNHCR need reconsideration.

"One of the greatest challenges facing UNHCR at present, and one which is likely to grow in the years ahead, concerns the organization’s involvement in situations where refugees are returning to their own country because of external pressures or an absence of realistic alternatives".33

UNHCR is left balancing the competing interests of the host State, the source State and the refugees whom it has a duty to protect.

The original mandate was to refugees, that is those who had crossed an international border and could show persecution for a reason set out in the Statute.34 Today conflicts are predominantly non-international in character35, and most concomitant displacement is within the State. One might have a situation, therefore, where a non-international armed conflict is taking place, some non-combatants have managed to cross an international border, others are internally displaced, whilst a third group still live in their homes - the disputes in Bosnia-Herzegovina and Georgia are good examples. If UNHCR provides protection in such an acute crisis, then it is difficult to see how they can separate out those truly within the 1950 mandate from the rest. UNHCR has worked for several years with internally displaced persons in many crises.36 The question is not whether this work is ultra vires the mandate, rather it is a question of regularising the role. The Representative of the Secretary-General on Internally Displaced Persons, Deng, is due to present a new set of Guiding Principles on Internal Displacement to the Commission in March 1998 - this definition will require only that the internally displaced person or group of persons has been forced to flee

"in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters …."37

Whether there will be a United Nations High Commissioner for Displaced Persons in the future, responsible for the protection of all those displaced regardless of whether they have crossed an international border, is still to be seen.

If internally displaced persons are just refugees who have not managed to cross an international border, UNHCR is also increasingly operating in-country with people who have not been forced to flee at all. It is lead agency under the Dayton Peace Accords for Bosnia-Herzegovina. During the conflict in Bosnia-Herzegovina, UNHCR had the so-called safe areas thrust upon it.38 In those safe areas were internally displaced persons and the people ordinarily resident in Gorazde, Srebrenica and Zepa, neither group within the 1950 mandate. The logic of in-country work ought to be, however, that it may ameliorate potential refugee-producing conditions, or that it amounts to the continued protection of refugees being repatriated. There may be a conflict of interest, or at least additional competing pressures, where UNHCR is involved with refugees in a neighbouring State and is simultaneously in overall charge of restoring civil society in the country from which they have just fled. It is worth reiterating, however, that UNHCR is not a general humanitarian relief agency, but is, rather, motivated by its obligation to protect. Protection of those of concern to the High Commissioner should motivate all UNHCR activities - States should not impose other objectives on UNHCR for short-term ‘solutions’. The problem is that UNHCR is never allowed to make mistakes in situations where States are not even prepared to start answering the questions.


21 Sometimes the United Nations has used assistance as a substitute for a policy of restoring peace. For UNHCR, assistance is a mere adjunct to its obligation to protect. [...back to main text]

22 UNGA Res.428(V) Annex, UNGAOR Supp. (No.20) 46, UN Doc.A/1775, 14 December 1950.
“Statute of the Office of the United Nations High Commissioner for Refugees
1. The United Nations High Commissioner for Refugees, acting under the authority of the General Assembly, shall assume the function of providing international protection, under the auspices of the United Nations, to refugees who fall within the scope of the present Statute and of seeking permanent solutions for the problem of refugees by assisting Governments and, subject to the approval of the Governments concerned, private organizations to facilitate the voluntary repatriation of such refugees, or their assimilation within new national communities. In the exercise of his functions, more particularly when difficulties arise, and for instance with regard to any controversy concerning the international status of these persons, the High Commissioner shall request the opinion of the advisory committee on refugees if it is created.
2. The work of the High Commissioner shall be of an entirely non-political character; it shall be humanitarian and social and shall relate, as a rule, to groups and categories of refugees.
3. The High Commissioner shall follow policy directives given him by the General Assembly or the Economic and Social Council.
9. The High Commissioner shall engage in such additional activities, including repatriation and resettlement, as the General Assembly may determine, within the limits of the resources placed at his disposal.
11. The High Commissioner shall be entitled to present his views before the General Assembly, the Economic and Social Council and their subsidiary bodies. The High Commissioner shall report annually to the General Assembly through the Economic and Social Council; his report shall be considered as a separate item on the agenda of the General Assembly.”
The General Assembly has subsequently adopted further Resolutions defining the High Commissioner’s role - see HCR/INF/48/Rev.2. [...back to main text]

23 And the mandate is now to be found in several sources, much like the British Constitution. [...back to main text]

24 This is not to establish a dichotomy, it is to recognize that protection has priority and should lead assistance. It is the overarching principle and is wider than assistance. The danger is that the international community treats assistance as a substitute for ultimate protection. [...back to main text]

25 Currently there are fifty-three States on EXCOM, including the five permanent members of the Security Council. [...back to main text]

26 The Secretary-General has been able to invite the High Commissioner to participate in United Nations humanitarian efforts since 1972 (UNGA Res.2956 (XXVII), para.2, 12 December 1972). UNHCR has been given functions by the Security Council in response to humanitarian crises in many resolutions in recent years, e.g. UNSC Res.787 (1992), 16 November 1992, where para.19 called on the Secretary-General and High Commissioner to promote “safe areas for humanitarian purposes” - to that extent, it is recognized that displacement can be a threat to international peace and security. So far, every extension of UNHCR’s role by the Security Council, and for that matter the Secretary-General, has been with prior consent of the High Commissioner (I am indebted to Nicholas Morris for this information). [...back to main text]

27 Supra n, paras.1, 8(c) and 9. See also EXCOM Conclusions 18 (XXXI) 1980, 40 (XXXVI) 1985, and 74 (XLV) 1994; Note on International Protection (submitted by the High Commissioner), paras.35-38, 9 September 1991. See Zieck, UNHCR and Voluntary Repatriation of Refugees: A Legal Analysis, 1997. [...back to main text]

28 EXCOM Conclusion 18 (XXXI) 1980, paras.(b) and (c). See also, 40 (XXXVI) 1985.
“(b) The repatriation of refugees should only take place at their freely expressed wish; the voluntary and individual character of repatriation of refugees and the need for it to be carried out under conditions of absolute safety, preferably to the place of residence of the refugee in his country of origin, should always be respected.” (emphasis added)
A related problem arising out of armed conflicts concerns the position of prisoners of war once the conflict has ceased. It may be that they would qualify as refugees and so should not be refoulé. Alternatively, they may just not want to go back, so repatriation would not be voluntary. However, Article 118 of Geneva Convention III, 1949, imposes an obligation on States to repatriate POWs after the cessation of active hostilities - indeed, under Article 85.4(b) of Protocol I, unjustifiable delay in the repatriation of POWs can be a grave breach.
[...back to main text]

29 Supra n, Article V. [...back to main text]

30 See also, Bucheli, The Returnees to the Gali Area: A Discussion Paper, UNOMIG 1996, pp.13-14 and 22.[...back to main text]

31 Ogata, World Order, Internal Conflict and Refugees, John F. Kennedy School of Government, Harvard University, 28 October 1996, at pp.2-3. UNHCR has assisted the voluntary repatriation of 900,000 Somalis to relatively safe areas in Somalia which, it is recognised, is still unstable.[...back to main text]

32 See Amnesty International, RWANDA Human rights overlooked in mass repatriation, esp. p.17, AI Index AFR 47/02/97, 14 January 1997; and, GREAT LAKES REGION Still in need of Protection: Repatriation, Refoulement and the Safety of Refugees and the Internally Displaced, esp. p.5, AI Index AFR 02/07/97, 24 January 1997. Cf. Morris, Protection Dilemmas and UNHCR’s Response: a Personal View from Within UNHCR, 9 IJRL 492, at pp.494-95. Within UNHCR, the return from the former Zaire is now termed an evacuation. [...back to main text]

33 UNHCR, UNHCR Strategy Towards 2000 (1996), at para.25.[...back to main text]

34 The Statutory definition is very similar to that found in the 1951 Convention, although there is no reference to membership of a particular social group. [...back to main text]

35 Supra n. [...back to main text]

36 See UNGA Res.2958 (XXVII), 1972. [...back to main text]

37 Article 1, Draft Proposed Guiding Principles on Internal Displacement, 1998, drawn up by the Representative’s team of international legal experts. I am grateful to my colleague Françoise Hampson for a copy of this Draft - the final version of the text for the Commission may vary from what is stated here.[...back to main text]

38 On the other hand, this safe areas work stems from United Nations Security Council Resolution 688 (1991) concerning the Kurdish safe haven in Northern Iraq; the resolution recognized how human rights violations and concomitant refugee flows are a threat to international peace and security. [...back to main text]

3. UNHCR and the International Law of Armed Conflict

Finally, and very briefly, during an armed conflict there are rules of the international law of armed conflicts which affect UNHCR. The Fourth Geneva Convention of 1949 Relative to the Protection of Civilians in Time of War provides in Article 44 that Parties to the conflict shall not automatically treat as enemy aliens refugees who do not enjoy the protection of a government. Further, Article 26 provides that Parties shall facilitate the renewal of contact where families have been dispersed. Geneva IV provides for relief to all civilians in Articles 23, 55 and especially 59 and 61. Moreover, Protocols I and II of 1977 deal with displacement39 and humanitarian relief with respect to all those caught up in conflict. Protocol I, which applies to international armed conflicts and wars of self-determination, provides that Parties to the conflict should allow for the provision of humanitarian relief to civilians on an impartial basis in a territory which is inadequately supplied - such should not be seen as an interference or an unfriendly act. However, the parties to the conflict can impose conditions on its passage as long as such would not result in the starvation of the civilian population. Article 18.2 of Protocol II, which applies to non-international armed conflicts, provides that the State Party to the conflict, but not the rebel force, must consent, although in practice every faction along the route the relief column will take will have a voice in the distribution of relief.40 While these provisions are to be welcomed, it is not at all clear in the international law of armed conflict that the fact that the Parties to the conflict are obliged to permit something subject to conditions, that that fact should give rise to rights in the individual victims, nor even less that the ICRC and UNHCR thereby have a right to meet these needs of the civilian population. A right of access to refugees in armed conflict, if such exists in international law, is not readily discernible from Protocol I - the best that might be divined is a right in UNHCR to offer relief action


39 The rules relating to the displacement of civilians during an armed conflict set out in Protocols I and II are not dealt with here, being more an aspect on the limitations placed on the means and methods of warfare. [...back to main text]

40 A favourite tactic of the Bosnian Serbs was to have the old women from a village sit in the road to block it - I am indebted to Karin Landgren for this information. [...back to main text]

4. Problems and Recommendations

In this section, issues are presented which go beyond the simple law so far discussed.


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Papers Presented (by author):
1. Kate Mackintosh - 2. Nigel S Rodley - 3. Françoise Hampson - 4.Carlo von Flüe - 5. Geoff Gilbert - 6. Nicholas Morris - 7. David Bassiouni - 8. Philip Wilkinson - 9. Emma Shitakha - 10. Ian Martin - 11. Colleen Duggan
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Table of Contents - Search - Introduction - Recommendations - Opening Address - Papers Presented - Acknowledgements  - Appendices
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