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Protection of Civilians$

Haidi Willmot, Ralph Mamiya, Scott Sheeran, and Marc Weller

Print publication date: 2016

Print ISBN-13: 9780198729266

Published to Oxford Scholarship Online: June 2016

DOI: 10.1093/acprof:oso/9780198729266.001.0001

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Displacement and the Protection of Civilians under International Law

Displacement and the Protection of Civilians under International Law

Chapter:
(p.177) 8 Displacement and the Protection of Civilians under International Law
Source:
Protection of Civilians
Author(s):

Erin Mooney

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198729266.003.0009

Abstract and Keywords

This chapter situates the protection of displaced persons in the broader challenge of protection of civilians, considering the place that displacement occupies in the protection agenda of the Security Council. It examines the protection that international law affords civilians who are at risk of, or experiencing, displacement in situations of armed conflict. The analysis presented focuses on three elements: (a) protection against the act of forced displacement; (b) protection when displaced, both cross-border and through internal displacement; and (c) safe and sustainable solutions to displacement. The legal analysis is illustrated by reference to actual situations of displacement in contemporary conflicts.

Keywords:   displaced persons, protection of civilians, forced displacement, armed conflict, refugees, international refugee law

I. Introduction

The tragedy of civilians fleeing in search of safety has been a corollary of armed conflict since time immemorial. Currently, nearly 60 million people are displaced as a result of conflict, generalized violence, or persecution. The 59.5 million people displaced at the end of 2014 marks the highest global figure for such displacement since the Second World War.1 In 2014 alone, conflict and violence forced a record-breaking 13.9 million individuals to flee their homes, an average of 42,250 persons a day, half of them chidren.2 Of those forced to flee in 2014, 2.9 million persons found refuge in another country, marking the highest level of new refugees in a single year since 1994, when the Rwandan genocide and ongoing conflict in the former Yugoslavia, in particular, caused mass exoduses. However, both in 2014 and for more than two decades now, the vast majority of people forced to flee remain within their own country. The 11 million new ‘internally displaced persons’ (IDPs) in 2014 represented the highest ever annual figure on record for new internal displacement.3

Conflict and its concomitant dangers for civilians inevitably compel people to flee. One possible exception arises in siege warfare, which effectively prevents civilians from leaving their community in search of safety and assistance elsewhere. Generally, conflicts engender mass population displacement. Yet, displacement is not simply a side-effect of violence; in many cases, displacement is deliberate and a central aim, for instance, as part of a war strategy of ethnic cleansing.4 Whatever (p.178) its cause, displacement inherently exposes civilians to particular vulnerabilities and risks.

Whether and where displaced persons succeed in finding temporary refuge and safety is by no means assured. For those who seek and gain asylum in another country, protection comes in the form of international refugee law and the well-established international protection regime for refugees. As of end-2014, some 19.5 million persons in the world are legally recognized refugees; an additional 1.8 million persons are asylum-seekers pending decisions of their refugee status.5 However, as noted above, this external, cross-border, dimension of displacement is only one part of the story. Nearly twice as many people— some 38.2 million persons as of end-2014—have been forced from their homes by violence but are still in their own country. These IDPs often remain caught in the midst of armed conflict, alongside other civilians, and typically continue to be at serious risk.

Epitomizing these global displacement trends is the ongoing conflict in Syria, which began in March 2011. Traditionally a country of asylum for refugees, the situation in Syria now represents the largest displacement crisis in the world. As of the November 2015, nearly 11.9 million people—amounting to half of the country’s entire population—had been displaced by the conflict: 4.29 million as refugees to other countries and 7.6 million, as IDPs inside Syria.6 Conflict in this one country has displaced more civilians than the First World War, and in less time.7 New displacements are ongoing: on average, every minute in 2013, one family fled; this amounts to 9,500 people a day, at least half of them children.8 Amid ongoing conflict and ever-shifting frontlines, most IDPs find themselves uprooted multiple times.

Inside Syria, some 4.5 million civilians in need of protection and assistance in Novmeber 2015, including many IDPs, are in areas classified by the United Nations as ‘hard-to-reach’ for humanitarian actors due to insecurity and obstructions to humanitarian access by parties to the conflict. Some 393,700 civilians are besieged, and thereby completely cut off from humanitarian assistance as well as unable to flee; this includes some 181,200 people besieged by government forces, 200,000 besieged by Islamic State in Syria and the Levant (ISIL), and (p.179) some 12,500 persons besieged by other non-state armed groups.9 These besieged communities are out of the reach—often for years—of the United Nations (UN) and other international humanitarian actors due to insecurity or other impediments imposed by warring parties.10 Meanwhile, neighbouring countries are making it increasingly difficult for civilians to flee Syria in search of protection and assistance elsewhere; deportations of asylum-seekers back into Syria are on the rise.11

Faced with these realities, what protection does international law offer civilians, whether in Syria or elsewhere, in situations of forced displacement? To answer this question, this chapter begins by situating the protection of displaced persons in the broader challenge of protecting civilians in conflict situations, including identifying the place that displacement occupies in the ‘protection of civilians’ agenda in the UN Security Council. The second section examines the protection that international law affords civilians who are at risk of, or who are actually experiencing, displacement in situations of armed conflict. This analysis focuses on three particular elements: (a) protection against the act of forced displacement; (b) protection when displacement does occur, examining separately the different legal contexts of cross-border and internal displacement; and (c) safe and sustainable solutions to displacement. The analysis not only considers existing legal standards in the abstract, but also endeavours, if only cursorily, to relate these norms to contemporary conflicts and actual situations of displacement. After all, whether and to what extent international law responds to the real-life protection concerns of refugees and IDPs is the only true measure of its adequacy to protect the millions of civilians forcibly uprooted by war.

II. Displacement and the Protection of Civilians

‘The first casualty of war is not usually truth, as the proverb would have it, but space.’12 So asserts Hugo Slim, who explains: ‘one of the most persistent and profound effects of war on civilians is often a dramatic change in their normal patterns of space and movement.’13 Displacement is among the most evident and devastating manifestations of this ‘spatial suffering’, constituting one of seven spheres of civilian suffering in armed conflict that he has delineated.14 Moreover, displacement typically also exposes civilians to the six other spheres of suffering in (p.180) Slim’s typology, namely killing, rape, impoverishment, famine, disease, and distress. Although less immediately evident than physical abuse, the social and economic dislocation that displacement entails is particularly destructive. According to Slim, ‘in poorer societies where people routinely live much closer to subsistence, people tend to suffer and die more often from a damaging spiral of movement and impoverishment than they do from shrapnel, bullet or blade’.15 Analyses of the impact of conflict on civilians that measure merely the number of deaths simply do not capture this reality and can lead to a gross underestimation of civilian suffering in war.16 Indeed, a survey conducted by the International Committee of the Red Cross (ICRC) across eight war zones around the world found that displacement is one of civilians’ three greatest fears, along with losing a loved one and economic hardship. In some contexts, fear of becoming displaced even outranks the fear of physical injury and of sexual violence.17

Displacement inherently exposes affected civilians to a range of specific protection risks and vulnerabilities. Forced from their homes, compelled to abandon most of their belongings, cut off from their usual livelihood, and detached from their community, displaced persons suddenly find themselves stripped of their normal sources of security and habitual means of survival. In the chaos of flight, families often become separated, thereby disintegrating the most fundamental unit of protection, with especially serious consequences for children, older persons, and persons with disabilities. Compounding their plight, displaced persons are frequently stigmatized and viewed with suspicion, even hostility, in the very communities where they seek safety. Many remain at risk of ongoing acts of violence, including sexual and gender-based violence, and abuses including arbitrary arrest and forced military recruitment. Often, displaced persons live under constant threat of eviction and even of forcible return to places where their lives would be endangered. Moreover, these and other vulnerabilities associated with displacement are protracted. More than 80 per cent of refugee crises last for ten years or more; 40 per cent last twenty years or more. Situations of internal displacement, meanwhile, persist on average duration of displacement for twenty-three years.18 The protracted nature of displacement, whether for refugees or IDPs, underscores both the necessity and the challenges of securing safe and sustainable solutions to displacement.

The plight of displaced persons remaining inside their own country—who constitute two-thirds of the world’s displaced—is particularly precarious.19 Often, (p.181) IDPs remain trapped in areas of armed conflict, with all of the attendant risks. Millions are out of reach of humanitarian assistance due to insecurity or other obstructions to humanitarian access. Of course, it is the government who bears the primary responsibility for protecting and assisting IDPs and all other persons under its territorial control. Yet, governments often lack the capacity and sometimes political will to fulfil this responsibility. Compounding the plight of IDPs, and in contrast to refugees, when their own government fails them, there is no established international regime to which IDPs can turn to ensure their protection and welfare. The consequences of this double standard can be dramatic, even deadly. IDPs have experienced some of the highest rates of mortality and malnutrition recorded in humanitarian emergencies, in large part because they were not provided key elements of humanitarian assistance routinely provided to refugees.20 Whereas international responsibility for ensuring protection and assistance for refugees falls to the UN High Commissioner for Refugees (UNHCR) or, in the case of Palestinian refugees, to the UN Relief and Works Agency (UNRWA), IDPs, as UN Secretary-General Kofi Annan noted in 2005, ‘often fall into the cracks between different humanitarian bodies’.21

That the situation of refugees and IDPs in armed conflict requires specific attention has been evident from the outset of the UN Security Council’s consideration of the protection of civilians. In 1991, the Security Council recognized the link between civilian displacement and the maintenance of international peace and security in Resolution 688, which condemned attacks on Iraqi Kurds and was motivated in part by concerns over refugee flows into neighbouring countries.22 Following a comprehensive review of UN support to displaced persons and returnees, in 1992 the UN Secretary-General appointed a Representative on Internally Displaced Persons,23 with a broad mandate and reporting responsibilities both to the UN Commission on Human Rights (as of 2010, the Human Rights Council) and (p.182) to the UN General Assembly.24 In 1993, the Security Council expressed concern regarding ‘the incidence of humanitarian crises, including mass displacement of population, becoming or aggravating threats to international peace and security’.25 The Council proceeded to recognize the plight of refugees and IDPs as a threat to international peace and security in numerous contexts throughout the decade, including in northern Iraq, the former Yugoslavia, Rwanda, and Somalia.

In 1997, in what may be considered the precursor to the protection of civilians eventually becoming a standing Council agenda item,26 the UN Security Council held a thematic debate on ‘protection for humanitarian assistance to refugees and others in conflict situations’. Recognizing that ‘massive displacement of civilian populations in conflict situations may pose a serious challenge to international peace and security’, the Council expressed ‘grave concern at the recent increase in attacks or use of force in conflict situations against refugees and other civilians, in violation of the relevant rules of international law’, condemned such acts, called for strict compliance with the relevant laws, and called upon all parties to conflicts ‘to ensure the safety of refugees, displaced persons and other civilians, and guarantee the unimpeded and safe access of United Nations and other personnel to those in need’.27 The following year, after considering two Secretary-General’s reports on the issue,28 the Council restated that the provision of security to refugees ‘can contribute to the maintenance of international peace and security’29 and recognized a particular lack of protection for IDPs in Africa.30 These various initiatives drawing attention to the specific protection concerns of refugees and IDPs and to the implications of displacement for international peace and security suggest that the issue of displaced persons was an influential factor in protection of civilians concerns featuring in the UN Security Council’s agenda from the outset.31

On 12 February 1999, the Security Council, under the presidency of Canada, held its first thematic debate devoted to the protection of civilians. Refugees and internally displaced persons were cited as specific groups of concern.32 The Secretary-General’s first report on the protection of civilians also gave significant (p.183) attention to forced displacement, highlighting the importance of adherence to international humanitarian, refugee, and human rights law, as well as the Guiding Principles on Internal Displacement.33 In response to the report, the Council specifically requested the Secretary-General to bring to its attention situations where refugees and IDPs’ vulnerability may constitute a threat to international peace and security,34 and also requested an aide-memoire providing guidance on measures to protect civilians.35 The resulting Aide-Memoire on the Protection of Civilians in Armed Conflict, which continues to be regularly updated, is ‘a practical tool that provides the basis for improved analysis and diagnosis of key protection issues’,36 in which issues of displacement feature prominently.37

In May 2014, the Security Council held its first meeting devoted to discussing the protection of IDPs and its own role in this regard.38 Although informal, the meeting sought to identify ways to address the protection of IDPs more consistently and effectively through the Security Council’s work.39 At the meeting, the UN Special Rapporteur on the Human Rights of Internally Displaced Persons40 commended the Council’s integration of protection measures for IDPs and refugees in its resolution, adopted just days before, bolstering the protection of civilians mandate and capacity of the UN Mission in South Sudan (UNMISS).41

As South Sudan rapidly descended into civil war in December 2013, tens of thousands of civilians, the majority of whom were targeted because of their ethnicity or political affiliation, sought refuge with the UN mission, which established ‘protection of civilians sites’ within their bases. Security Council Resolution 2155 authorized UNMISS to protect civilians, ‘with particular attention to displaced (p.184) civilians, including those in protection sites and refugee camps’; ‘to monitor, investigate, verify, and report publicly and regularly on abuses and violations of human rights and violations of international humanitarian law’; to contribute to the creation of the conditions for the ‘full, safe and unhindered access of relief personnel to all those in need in South Sudan and timely delivery of humanitarian assistance, in particular to internally displaced persons and refugees’; and ‘to foster a secure environment for the eventual safe and voluntary return of IDPs and refugees’.

The UNMISS mandate is only the most prominent example of recent Security Council action to address threats to displaced persons.42 Issues of displacement have featured in numerous peacekeeping mandates, including regarding physical protection for IDP camps by the African Union–United Nations Hybrid Operation in Darfur (UNAMID)43 and the provision of a secure environment to enable the durable return of displaced persons in a contested area of Sudan by the UN Interim Security Force for Abyei (UNISFA).44 The Council also emphasized displacement due to ethnic and religious violence as a key factor of instability in the Central African Republic, where refugees and displaced persons were cited as specific groups to be protected from physical violence by the UN mission (MINUSCA).45

Concerns regarding displacement have consistently been a part of and, to a certain extent, also have influenced broader consideration of the protection of civilians in armed conflict. The UN Security Council has recognized the particular vulnerabilities of displaced persons in times of conflict, and that such displacement may constitute a threat to international peace and security. Increasingly, refugees and IDPs constitute a focus of this broader protection agenda.

III. The International Legal Framework

In thematic resolutions on the protection of civilians and in country-specific resolutions, the UN Security Council regularly reaffirms the obligation of all parties involved in an armed conflict to comply with international humanitarian law as well as with the rules and principles of international human rights law and refugee (p.185) law.46 In some cases it ‘demands’ that parties comply strictly with their obligations under those bodies of law.47 Collectively, the three bodies of law offer civilians extensive protection in situations of displacement. Indeed, the breadth and depth of the international legal framework that can be mobilized for protection in situations of displacement during times of war is such that a compilation and analysis of all of the norms goes beyond the scope of this chapter, but can be found elsewhere.48 The following analysis covers three key dimensions: (a) the act of displacement; (b) protection of displaced persons, separately examining protection for refugees and IDPs; and (c) solutions to displacement.

A. The act of displacement

Despite much evidence to the contrary, it is not a foregone conclusion that the occurrence of armed conflict in itself compels people to flee. International humanitarian law, in particular its core principle of distinction between civilian and military targets, provides a framework for avoiding this outcome. In the words of one ICRC official:

[D]uring armed conflict, the civilian population is entitled to an immunity intended to shield it as much as possible from the effects of war. Even in time of war, civilians should be able to lead as normal a life as possible. In particular, they should be able to remain in their homes; this is a basic objective of international humanitarian law.49

Indeed, at the January 2014 Security Council open debate on the protection of civilians, the ICRC stated: ‘One of the most widespread and daunting humanitarian problems arising from violations of [international humanitarian law]—at least in terms of numbers—is that of internal displacement.’50 The ICRC routinely emphasizes that respect for international humanitarian law (particularly the provisions prohibiting attacks on civilians and civilian property, indiscriminate attacks, starving civilians as a method of warfare, destroying objects indispensable to their survival, and carrying out reprisals against civilians and civilian property) would prevent most forced displacement.51 In addition, international human rights law (p.186) continues to apply, in large measure, during conflict.52 Respect for the rights to life and physical integrity—to freedom of movement, choice of residence, and protection of property, for instance—would go a long way to obviating the need for many civilians to flee. Based on these two bodies of law, the UN Guiding Principles on Internal Displacement state: ‘All authorities and international actors shall respect and ensure respect for their obligations under international law, including human rights and humanitarian law, in all circumstances, so as to prevent and avoid the conditions that might lead to displacement of persons.’53

Forcible displacement of civilians is generally prohibited under international humanitarian law. The prohibition of the deportation or transfer of civilians during times of war dates back to the Lieber Code of 1863, which was written and issued by the United States Army during the American Civil War. In Article 23 it prescribes that: ‘Private citizens are no longer [to be] murdered, enslaved, or carried off to distant parts.’54 Although binding only on armed forces of the United States, the Lieber Code is generally considered to have reflected international laws and customs of war at the time, and to represent the first codification of the laws of war. Further, it ‘served as a model and source of inspiration’ for the efforts subsequently taken at the international level to codify the law and customs of war, resulting in the adoption of the Hague Conventions on land warfare of 1899 and 1907.55 It is therefore perhaps surprising that the Hague Conventions make no mention of a prohibition of deportation or transfer of civilians, as had been articulated in the Lieber Code.56 Jean Pictet, however, argues that it was not an oversight, but rather that the drafters of the Hague Conventions deemed it unnecessary to restate the prohibition, as ‘the practice of deporting persons was regarded at the beginning of [the twentieth century] as having fallen into abeyance’.57

The Second World War made tragically clear that mass deportations were not confined to the annals of history, and underscored the need for an explicit (p.187) prohibition of the practice. The Charter of the International Military Tribunal established at Nuremberg to prosecute major war crimes committed by the European Axis Powers pronounced that ‘deportation to slave labour or for any other purpose of civilian population of or in occupied territory constitutes a war crime’.58 Further, the Nuremberg Charter classified ‘deportation and other inhumane acts committed against any civilian population before or during the war’ as crimes against humanity.59 Consistent with pre-existing standards and with the relevant, albeit implicit, provisions of the Hague Regulations, the Nuremberg Charter (and jurisprudence of the Tribunal as well as other case law relating to the Second World War) made clear that the deportation of civilians from occupied territories constituted a violation of customary international law.60

A general prohibition of forcible transfer or deportation of civilians from occupied territories in international armed conflict is set forth in Article 49 of the Fourth Geneva Convention of 1949.61 An Occupying Power may undertake the total or partial evacuation of population from a given area only if it is necessary for the security of the population or imperative military reasons. Even then, a number of guarantees must be met by the Occupying Power in order for such evacuations to be lawful. These safeguards include ensuring ‘satisfactory conditions of hygiene, health, safety and nutrition’, ‘proper accommodation’, and that members of the same family are not separated. Moreover, ‘[p]ersons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased’. Further, the Occupying Power may ‘not deport or transfer parts of its own civilian population into the territory it occupies’.62 Unlawful deportation or transfer of populations in violation of Article 49 constitutes a breach of the Fourth Geneva Convention and its Additional Protocol I.63 Under the Rome Statute of the International Criminal Court, deportation or transfer by the Occupying Power of all or parts of the population of the occupied territory, within or outside the occupied territory, constitutes an international war crime.64 These international norms, as well as State practice, confirm the following as a rule of customary international law: ‘Parties to an international armed conflict may not deport or forcibly transfer the (p.188) civilian population of an occupied territory, in whole or in part, unless the security of civilians involved or imperative military reasons so demand.’65

In non-international armed conflicts, the prohibition is broader as it is not limited to population transfers taking place on occupied territory. Entitled ‘Prohibition of forced movement of civilians’, Article 17, paragraph 1 of Additional Protocol II to the Geneva Conventions prohibits military commanders from ordering the displacement of a civilian population, unless the security of the civilians involved or imperative military reasons demand it. As in international armed conflict, the prohibition of displacement is not absolute. The official commentary on the Protocols explains: ‘It is self-evident that a displacement designed to prevent the population from being exposed to grave danger cannot be expressly prohibited.’66 In fact, in accordance with the principle of distinction between civilians and combatants, as well as the prohibition on the use of human shields, parties to an armed conflict, whether international or non-international in nature, have a duty in territory under their control to remove civilians, to the extent feasible, from the vicinity of military objectives. This responsibility is a rule of customary international law.67

As for displacement for military necessity, the criterion of ‘imperative military reasons’ is intended to set a high bar for what is lawful, and the ICRC emphasizes the need for careful scrutiny of each potential case.68 Certain scenarios unequivocally are non-permissible. The ICRC explains: ‘Clearly, imperative military reasons cannot be justified by political motives. For example, it would be prohibited to move a population in order to exercise more effective control over a dissident ethnic group.’69 Forced displacement for ethnic cleansing, which aims to change the demographic composition of a territory, is prohibited prima facie.70 In addition, as stated earlier, it is a rule of customary international law that ‘States may not deport or transfer parts of their own civilian population into a territory they occupy’.71 While the prohibition on forced displacement is not absolute, the burden is on the warring party to demonstrate that the displacement is both justified and absolutely necessary. As with international armed conflict, if displacement in non-international armed conflict is found to be both justified and absolutely necessary then ‘all possible measures must be taken in order that the civilians concerned are received under satisfactory conditions of shelter, hygiene, health, safety and nutrition and that members of the same family are not separated’.72 This is a rule of customary international law, applicable in both international and non-international armed conflict.73

(p.189) In the context of non-international armed conflicts, Additional Protocol II, Article 17(2) provides: ‘Civilians shall not be compelled to leave their own territory for reasons connected with the conflict.’74 This prohibition of deportations is absolute. However, the wording is potentially ambiguous in two respects. First, what constitutes ‘their own territory’ is left rather unclear. It may refer to the country as a whole, the tribal territory of the civilian group, their personal estate, or possibly the territory under the control of armed forces.75 According to the ICRC, from the perspective of the drafters ‘it is clear that there was never any doubt in anyone’s mind that the phrase was intended to refer to the whole of the territory of a country’.76

Omission of the adjective ‘national’, when referring to ‘their own territory’, is significant nonetheless. In the view of the ICRC: ‘In fact, this formula appears to be better suited to all the possible cases which might arise in a situation covered by Protocol II, and to take into account, in particular, situations where the insurgent party is in control of an extensive part of the territory.’77 According to this authoritative interpretation of Article 17(2), the prohibition it contains relating to non-international armed conflict is thus akin to the prohibition of forced displacement from occupied territory in international armed conflict that is provided under Article 49(1) of the Fourth Geneva Convention. Effectively, this means that not only governments but also insurgents have an obligation not to compel civilians to leave the territory under their control.78 The prohibition of deportations in internal armed conflict articulated in Article 17(2) of Protocol II, like Article 49(1) of the Geneva Conventions on which it is based, is absolute and permits no exception, whether for the security of civilians or imperative military reasons. However, in internal armed conflict, the prohibition only applies to deportations ordered ‘for reasons connected with the conflict’. This qualification was added ‘so as not to interfere with judicial systems that use exile as a penalty or with normal extradition proceedings’.79 Thus, whereas deportation following a judicial conviction and with no relation to the conflict ‘remains within the realm of a state’s exclusive jurisdiction on domestic matters’, if the deportation ordered is in any way connected with the conflict, it constitutes a forced movement prohibited by Article 17.80

Under the Rome Statute of the International Criminal Court, in non-international armed conflicts ‘ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians or imperative military reasons so demand’ constitutes a war crime.81 In addition, the Rome Statute adopts, from the Statutes of the International Criminal Tribunals of the former (p.190) Yugoslavia and Rwanda, the provision that the deportation or transfer of the civilian population constitutes a crime against humanity.82

The combined effect of the above-mentioned norms and State practice have converged to constitute as a rule of customary international law: ‘Parties to a non-international armed conflict may not order the displacement of the civilian population, in whole or in part, for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand.’83 Thus, both in international and in non-international armed conflict, the caveated prohibition of ordering the displacement of civilians is a customary norm.

Given that displacement is only lawful in armed conflict in exceptional and heavily proscribed circumstances, and that international human rights norms generally protect freedom of movement and choice of residence, it has been possible to articulate a general prohibition of arbitrary displacement. Principle 6 of the UN Guiding Principles on Internal Displacement affirms: ‘Every human being shall have the right to be protected against being arbitrarily displaced from his or her home or place of habitual residence.’84 The parameters of ‘arbitrary’ displacement have been defined as including: displacement in situations of armed conflict; displacement in any circumstances when it is based on policies of apartheid, ethnic cleansing, or similar practices aimed at or resulting in altering the ethnic, religious, or racial composition of the affected population; and displacement used as collective punishment.85 Another limit on non-arbitrary displacement is that it ‘shall last no longer than required by the circumstances’.86

Moreover, the Guiding Principles require that prior to any decision requiring the displacement of persons, the authorities concerned must meet a number of guarantees, including ensuring that all feasible alternatives have been explored to avoid displacement and, should no alternatives exist, ensuring that all measures are taken to minimize displacement and its adverse effects.87 Those undertaking the displacement are obliged to ensure, to the greatest practicable extent, ‘satisfactory conditions of safety, nutrition, health and hygiene, property accommodation, and that members of the same family are not separated’.88 If a decision for displacement is effected outside of the emergency stages of armed conflict, a number of additional guarantees must be met.89 In all circumstances, displacement ‘shall not be carried out in a manner that violates the rights to life, dignity, liberty and security of those (p.191) affected’.90 Further, States have ‘a particular obligation to protect against the displacement of indigenous peoples, minorities, peasants, pastoralists and other groups with a special dependency on and attachment to their lands’.91

The situation in Syria illustrates the relevance of these norms to contemporary armed conflicts. Among the violations of international law documented by the UN Commission of Inquiry is ‘arbitrary and forcible displacement’, caused both by government forces and non-State armed groups. More specifically, the Commission reports that the ‘Government’s aerial bombardments and shelling of civilian-inhabited areas have caused extensive arbitrary displacement’ and that ‘[b]y causing such large-scale displacement, the Government has failed in its obligations under international human rights law to protect civilians’.92 The Government has also ‘failed to comply with its duties under customary international law to take all possible measures to provide displaced civilians with shelter, hygiene, health care, safety and nutrition and to ensure that family members are not separated’.93 Meanwhile, the orders issued by the non-State armed group, Islamic State of Iraq and al-Sham (ISIS), for all Kurdish residents to leave several areas under its control ‘cannot be justified on the grounds either of the security of the civilians involved or of military necessity’.94 To the contrary, the Commission has determined that they constitute ‘a widespread and systematic attack against the Kurdish civilian population’ amounting to ‘the crime against humanity of forcible displacement’ and ‘to the war crime of displacing civilians’.95

The findings of the UN Commission of Inquiry have been presented to and discussed with the UN Security Council.96 Absent ‘strict compliance’ by parties to the conflict with these norms, the Council has indicated its readiness to ‘[c]ondemn and call for the immediate cessation of displacement in violation of international humanitarian law and international human rights law’ and to ‘consider applying targeted and graduated measures against parties to armed conflict who commit violations of applicable international law related to forced displacement’. In Resolution 2170 (2014), principally concerned with the ‘terrorist actions of ISIS’, the Council expressed further concern regarding displacement, stressing that those (p.192) responsible for violations of international human rights, refugee, and humanitarian law in Syria or Iraq must be held accountable.97

The protection provided by international law for displaced persons begins as a preventive measure, prohibiting the vast majority of forms of intentional displacement during conflict. Much of the law is rooted in well-established, although not always observed, rules of international humanitarian law, which are buttressed by international human rights law and international criminal law. The breadth and depth of these preventive obligations has resulted in the articulation of a principle of customary international law prohibiting forced displacement of civilians in armed conflict absent military imperatives or reasons of civilian safety, as well as a general principle prohibiting arbitrary displacement, whether during armed conflict or not, in the Guiding Principles on Internal Displacement.

B. Protection of displaced persons

Notwithstanding the prohibition of arbitrary displacement, if and when displacement does occur, displaced persons require protection and assistance. The concept of asylum—providing safe sanctuary to strangers in danger—dates back to ancient times and is found, in one form or another, in various historical texts and in all of the world’s major religions.98 In modern international law, the applicable norms vary depending on whether the situation concerns refugees who, by definition, are outside of their country or IDPs who, by contrast, remain in their own country. A summary of the key legal norms for each of these two situations follows.

i. Protection of refugees

Under the Universal Declaration on Human Rights, everyone has the right to seek, and to enjoy in other countries, asylum from persecution.99 This right remains intact in times of conflict. The corresponding obligations of States towards refugees and asylum-seekers are set out in international refugee law, the core texts of which are the 1951 Convention on the Status of Refugees and its 1967 Protocol. These legal instruments were developed in order to resolve the residual refugee crisis in Europe caused by the Second World War. Indeed, the Refugee Convention originally limited the protection it offered to persons who had fled ‘as a result of events occurring before 1 January 1951’, and in particular owing to ‘events occurring in Europe’.100 The temporal restriction was removed by the 1967 Protocol relating to (p.193) the Status of Refugees,101 and the geographic limitation has also effectively disappeared.102

Article 1 of the 1951 Convention on the Status of Refugees defines a refugee as follows:

Any person 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 to, or owing to such fear, is unwilling to avail himself of the protection of that country.

Regional protection instruments, specifically in Africa103 and in Latin America,104 have broadened the definition to include people fleeing events that seriously disrupt public order, including armed conflicts. However, under international law, namely the 1951 Convention and 1967 Protocol, persons compelled to leave their country of origin as a result of an armed conflict are normally not eligible for refugee status on that basis alone: the determining factor is a well-founded fear of persecution based on one of the five enumerated grounds.105 Any person who has committed, or strongly appears to have committed, a war crime, crime against humanity, or crime against peace, or a serious non-political crime outside of the country of refuge prior to her or his admission to that country as a refugee, or is guilty of acts contrary to the purposes and principles of the UN, is automatically ineligible for refugee status.106

When recognized refugees or asylum-seekers find themselves in a country involved in an armed conflict, international humanitarian law also applies. Provided the displaced persons do not become combatants, they are protected like other civilians. In addition, refugees enjoy specific protection under international humanitarian law, in recognition of the fact that they no longer enjoy the protection of their national government. In particular, the Fourth Geneva Convention provides that refugees must not be treated as enemy aliens solely on the basis of their nationality.107 Additional Protocol I to the Geneva Conventions extends the prohibition of adverse distinction to all persons who, before the beginning of the (p.194) hostilities, were regarded as refugees or stateless persons under relevant international or national instruments, and designates them as protected persons under the Fourth Geneva Convention.108

There are also explicit references to refugees who are under the control of a party to the conflict, which may exist in three situations.109 The first scenario arises when nationals of a State with which the receiving country is at war have been admitted as refugees, either prior to or during the conflict. These refugees are to be protected as aliens on the territory of the receiving State and not treated as enemy aliens exclusively because of their nationality.110

The second scenario arises when nationals of a neutral country have been admitted as refugees to the territory of a party to a conflict, either before or during the war. Even if their home country, because of its neutrality, maintains no diplomatic relations with the State party to the armed conflict, Additional Protocol I extends to them the protections of the Fourth Geneva Convention.111

In the third scenario, the refugees flee to a State with which their own country is, or eventually becomes, at war and then, as a result of their own country occupying all or part of the territory of the receiving State, the refugees fall back under the control of their country of origin. In such instance, the Occupying Power is prohibited from arresting, prosecuting, or convicting the refugees, or from deporting them from the occupied territory except under specific circumstances.112

In addition to the provisions explicitly addressing refugees, international humanitarian law also contains other important guarantees relevant to their situation. The Fourth Geneva Convention stipulates that ‘[i]n no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs’.113 This prohibition evokes and reinforces the principle of non-refoulement, which is the cornerstone principle of international refugee law.114 Also of relevance to many refugees and displaced persons, parties to an international armed conflict are obliged to facilitate the making of enquiries for the purpose of enabling families dispersed by the war to renew contact with one another. The parties to conflict are to facilitate in every possible way the reunion of dispersed families, including by enabling the work of organisations with specific expertise in family tracing.115

Additionally, in times of war, refugees continue to benefit from the aspects of refugee law that have passed into customary international law. Of chief importance is the principle of non-refoulement, which prohibits the expulsion or return of a (p.195) refugee to territories where his or her life or freedom would be threatened on account of his or her race, nationality, membership of a particular social group, or political opinion.116 Respect for the principle of non-refoulement not only entails refraining from returning a refugee to a country where his or her life or safety would be at risk; it also prohibits rejection and turning away an asylum-seeker at the border if a real risk exists that they would face violations of fundamental human rights, in particular the rights to life or physical integrity, upon their return.117 The principle of non-refoulement is a norm of customary international law, binding on all States.118

The Refugee Convention continues to apply in times of war.119 While it does allow that ‘in time of war or other grave and exceptional circumstances’ a State Party may take ‘measures which it considers to be essential to [its] national security’, such measures must be provisional and limited to what is necessary.120 Refugee law was not designed to address the special circumstances that exist during armed conflict and has certain weaknesses in this respect, including a lack of non-derogable protections for refugees.121 However, the limitations of the Convention are largely offset by the protections for civilians, including refugees, provided for in international humanitarian law.122 As such, refugee law and international humanitarian law offer highly complementary protection to refugees who find themselves in armed conflict situations.123

It is therefore surprising that, according to a former UNHCR official, in practice ‘one senses [...] a certain reluctance on the part of UNHCR to invoke the provisions of the Geneva Conventions and their Additional Protocols in the protection of refugees’.124 Among the possible explanations offered is that humanitarian law unhelpfully limits the protection concept to only those refugees caught in armed conflict.125 However, even then, the number of refugees is significant, counting several millions and currently including Syrian refugees caught up in conflict zones (p.196) in Iraq and Yemen, Iraqi refugees in Syria, Somali refugees in Yemen, and Chadian refugees in the Central African Republic. It has also been suggested that the apparent ‘ambivalence’ and even ‘reticence on the part of UNHCR vis-à-vis the [protection of civilians] concept in discharging its refugee mandate’ also ‘derives, in part, from the importance the concept in question has come to assume in the mandates of UN peacekeeping missions, especially integrated missions [and] the perception that [the protection of civilians] is an OCHA-owned [UN Office for the Coordination of Humanitarian Affairs] concept’.126 Yet, considering the particularly vulnerable situation of refugees caught in conflict situations, any and all international norms that can enhance their protection should be mobilized.

ii. Protection of internally displaced persons

Pursuant to the basic precepts of international law, the fact that IDPs remain within the territorial jurisdiction of their own country means that they continue to enjoy its protection, at least in principle. It is for this reason that IDPs, unlike refugees, do not acquire a specific status under international law. In all situations, IDPs continue to enjoy the rights inherent to all human beings, as codified in international human rights law, and their governments are obliged to protect those rights. In situations of armed conflict, international humanitarian law also comes into effect. IDPs, provided they are non-combatants, are entitled to the full array of guarantees afforded to all other civilians.

The fact that IDPs enjoy the same entitlements under international humanitarian law as other civilian victims in conflict has led some observers to question the need to focus specific attention on their plight in armed conflict.127 Similarly, in the international human rights law framework, James Hathaway asks: ‘Why should they be treated as a category of concern distinguished from other internal victims of human rights violations who have not been displaced?’128 However, the reality is that not all IDPs are displaced by violations of human rights or armed conflict that reach the threshold to engage those bodies of law: some may be displaced, for (p.197) example, by natural disasters, or violence not reaching the threshold of armed conflict. More fundamentally, the fact is that displacement, whatever its cause, inevitably creates specific needs. Displaced persons, by definition, have lost their habitual place of residence and have an immediate need for alternative shelter in a safe location. A strong body of empirical evidence reveals that they are at heightened risk for a range of vulnerabilities and abuses.129 Furthermore, and unique compared with other civilians caught in armed conflict, IDPs require a solution to their state of displacement.130

Significantly, the ICRC now explicitly recognizes that the vulnerability of civilians is exacerbated if they are displaced. While IDPs may have the same need for legal protection as other civilians during conflict, ‘it goes without saying that, deprived of shelter and their habitual sources of food, water, medicine and money, they have different, and often more urgent material needs’.131 At the policy level, the ICRC has confirmed that the particular needs of displaced persons are systematically taken into account in its vulnerability assessments.132

Unlike the case of refugees, there exists no international convention articulating the rights of IDPs and the responsibilities of States towards them. In 1992, the UN Representative of the Secretary-General on IDPs was requested by the UN Commission on Human Rights to study the extent to which international law met the needs of IDPs. After several years of research by a group of international legal experts, the result was a comprehensive two-part Compilation and Analysis of Legal Norms pertaining to IDPs, which reviewed international human rights law, international humanitarian law, and international refugee law.133 While the study reached the conclusion that there were ‘only minor gaps’ in the protection coverage provided to IDPs, it stressed the complexity of applying the provisions in situations of displacement. The UN Commission on Human Rights and the General Assembly welcomed the report and requested the development of ‘an appropriate normative framework’ to enhance the protection of IDPs.134 The framework was developed by the UN Representative for IDPs and a group of independent experts, (p.198) taking the form of the Guiding Principles on Internal Displacement, which were submitted to the Commission in 1998.135

The Guiding Principles bring together and compress into one short document the protection derived from a panoply of relevant international norms, which otherwise are dispersed and diffused across a wide range of different legal instruments and therefore not easily accessible. The thirty principles consolidate the key guarantees and rights relevant to all phases of internal displacement: protection from arbitrary displacement; protection and assistance during displacement; and protection during IDPs’ return or resettlement and reintegration.136 The Principles define IDPs as follows:

Persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, 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, and who have not crossed an internationally recognized State border.137

This definition has two core elements: (a) the coercive or otherwise involuntary nature of the individual’s movement and (b) the fact that such movement takes place within national borders. It is essential to understand that the definition of IDPs provided in the Principles is a descriptive definition, not a legal definition; it does not connote or confer upon IDPs a specific legal status in the same way that recognition of a person as a ‘refugee’ does. This is not necessary for IDPs, the main drafter of the Principles explained, because whereas refugees, who by definition have lost the protection of their own country and, being outside their own State, require a special status under international law, ‘the rights and guarantees to which IDPs are entitled stem from the fact that they are human beings and citizens or habitual residents of a particular state’.138 Indeed, Guiding Principle 1 affirms: ‘IDPs shall enjoy, in full equality, the same rights and freedoms under international and domestic law as do other persons in their country. They shall not be discriminated against in the enjoyment of any rights and freedoms on the ground that they are internally displaced.’ And while States have ‘the primary duty and responsibility to provide protection and humanitarian assistance to IDPs within their jurisdiction’ (Principle 3), the Principles are to be ‘observed by all authorities, groups and persons’ (Principle 2), by which is understood to include non-State armed groups.139 The Introduction to the Principles indicates that their purpose is to provide guidance not only to States, but also to ‘all other authorities, groups and persons’ and to inter-governmental and non-governmental organizations.

The main sections of the Principles set out the rights of IDPs and the responsibilities of States and other actors towards them in all phases of displacement. Principles 5–9 address the issue of protection from displacement.140 Especially noteworthy is Principle 6 which, based on relevant provisions of international (p.199) humanitarian law and human rights guarantees, recognizes the right of every persons not to be arbitrarily displaced. Principles 10–23, constituting the largest section of the document, cover a wide range of rights, for instance the rights to life; to physical, mental, and moral integrity; to freedom of movement; to an adequate standard of living; to family life; to education; and to political participation.141 In each case, the Principle specifies the relevance of these general guarantees to the specific needs and concerns of IDPs. For example, Principle 12 reaffirms the right of every human being to liberty and then specifies that ‘to give effect to this right’ for IDPs, they shall not be interned in or confined to a camp, shall be protected from discriminatory arrest and detention as a result of their displacement, and shall not be taken hostage.142 Principle 15 inter alia affirms that IDPs, like all persons, have the right to seek asylum in another country, that is, to become a refugee. Moreover, evoking the principle of non-refoulement from international refugee law, Principle 15 also recognizes that IDPs have the ‘right to be protected against forcible return to or resettlement in any place where their life, safety, liberty and/or health would be at risk’.143 Principles 24–27 address the issue of humanitarian assistance to IDPs, reaffirming international norms regarding humanitarian access. The final section of the document addresses solutions to displacement.

Although the Guiding Principles on Internal Displacement do not constitute a binding instrument as such, they do reflect and are consistent with international human rights and international humanitarian law, which is binding. The legal basis of each of the Principles is set out in detail in their Annotations.144 The legal basis is also evident in the Principles themselves, which are modelled on, and in several cases restate verbatim, key passages from international human rights law and international humanitarian law.145

The purpose of the Guiding Principles is not to replace the guarantees in these two bodies of international law but rather to facilitate their application in situations of displacement. The Principles strive to do so, their main drafter Walter Kalin explains, ‘by synthesizing the many applicable norms of international human rights and humanitarian law into clear principles, and by highlighting those more concrete aspects of human rights and humanitarian law guarantees that are of special significance for the displaced’.146 Basing the normative framework applicable in situations of displacement on hard law was a deliberate and conscious decision of the drafters.147

Indeed, the fact that the Guiding Principles are based on hard law is a key reason why the Principles have gained considerable international standing in a relatively short period of time.148 The ICRC contributed to the development of the Principles and supports their dissemination and use.149 In 2005, the 196 Heads of (p.200) State assembled at the World Summit recognised the Guiding Principles ‘as an important international framework for the protection of internally displaced persons’.150 More than twenty-three States to date have adopted domestic legislation or national policies explicitly referring to and based on the Principles.151 Also particularly noteworthy is the fact that in 2009 the African Union adopted the first-ever international legal instrument specifically concerning IDPs, the Convention for Protection and Assistance to Internally Displaced Persons in Africa. The ‘Kampala Convention’, named for the city of its adoption, makes explicit mention of the Guiding Principles, which heavily informed the drafting process.152

The real ‘protection gap’ for IDPs is not a lacuna of international standards but rather, as the UN Security Council observed in 2000, one of ‘inadequate implementation of existing international norms for IDPs’ protection’.153 This still rings true years later. Certainly, the disregard by parties to armed conflict of many of their obligations to protect civilians remains a significant challenge. This problem, however, is exacerbated in some cases by passivity on the part of international organizations which, as the Guiding Principles emphasize, also have responsibilities when providing humanitarian assistance to ‘give due regard to the protection needs and human rights of internally displaced persons and take appropriate measures in this regard’.154 In this connection, the report of an official review of UN action in Sri Lanka in the closing months of the conflict in 2009 makes for sobering reading. Among the many identified examples that culminated in what the report characterized as a ‘systemic failure’ of protection on the part of the UN was that the UN ‘should have been able to push further for respect for international norms in the delivery of assistance to IDPs and avoid accusations of complicity in the detention of IDPs’.155

C. Solutions to displacement

A distinguishing feature of protection in the context of refugees and IDPs is the need to find solutions to the situation that inherently exposes them to vulnerabilities, namely being uprooted from their place of habitual residence.

International human rights law recognizes that everyone has the right to freedom of movement, including the right to return to one’s country and the freedom to choose one’s residence.156 The Fourth Geneva Convention provides that in (p.201) international armed conflict, persons who have been evacuated must be transferred back to their homes as soon as hostilities in the area have ceased.157 Indeed, unjustifiable delay in the repatriation of civilians uprooted by international armed conflict constitutes a grave breach of Additional Protocol I.158 As for IDPs, the Guiding Principles on Internal Displacement emphasize that ‘displacement shall last no longer than required by the circumstances’.159 The UN Security Council, General Assembly, Commission on Human Rights, and its successor the Human Rights Council have repeatedly emphasized, both generally and in resolutions regarding specific country situations, ‘the right of refugees and displaced persons to voluntary return in safety and dignity to their homes’, and this right is also recognized in several peace agreements and other agreements regarding refugees and displaced persons.160 It is now a well-established norm of customary international law, applicable both in international and non-international armed conflicts, that ‘Displaced persons have the right to voluntarily return in safety to their homes or places of habitual residence as soon as the reasons for their displacement cease to exist’.161

The Guiding Principles on Internal Displacement further elaborate key normative elements of solutions for IDPs. ‘Competent authorities’, which include not only States but also non-State armed groups, have the responsibility to establish conditions, as well as provide the means, allowing IDPs ‘to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country’.162 Thus, in addition to the solution of return, IDPs also have the option to resettle elsewhere in the country, including to integrate into the locality where they lived while displaced. Whichever solution IDPs choose, the authorities are to facilitate their reintegration.163 These three possible solutions for IDPs are akin to the right of refugees to choose among three solutions: return to their home country once it is possible to re-avail themselves of its protection; re-establish themselves through local integration in the country of asylum; or, through resettlement, establish themselves in another country.164 The Principles proscribe that IDPs should participate in the planning and management of their return or resettlement and reintegration.165 Wherever IDPs choose to re-establish themselves, they must not be discriminated against as a result of having been displaced, they must have equal access to public services, and they must have the opportunity to participate fully and equally in public affairs.166 The authorities (p.202) also have the responsibility to assist IDPs to recover, to the extent possible, the property and possessions that they left behind or were dispossessed of upon displacement. If restitution is not possible, the authorities are to assist IDPs to obtain appropriate compensation or other just reparation.167 All authorities concerned are to facilitate rapid and unimpeded access for international humanitarian organizations and others, and to assist IDPs in their return or resettlement and reintegration.168 As a rule of customary international law, ‘The property rights of displaced persons must be respected’.169

The Security Council, in its Aide-Memoire on the Protection of Civilians, reaffirms and calls for ‘strict compliance’ by parties to armed conflict, with all applicable standards of international law relevant to securing durable solutions to displacement. As for its own role, the Council indicates its readiness, when faced with any given conflict situation causing displacement, to consider mandating UN peacekeeping and other relevant missions to contribute to creation of security conditions conducive to voluntary, safe, dignified, and sustainable returns. This may include mobilization of police patrols in areas of return; ensuring the protection of returning refugees and IDPs; preventing the illegal appropriation and confiscation of land and property belonging to refugees and IDPs; and supporting domestic mechanisms for addressing housing, land, and property claims.170

In 2008, the Representative of the Secretary-General on Internally Displaced Persons emphasized that finding durable solutions to displacement was ‘an essential dimension of peacebuilding’. He stated:

Resolving internal displacement—and preventing future displacement—is inextricably linked to achieving lasting peace. On one hand, unresolved problems of displacement may cause instability and thus threaten peacebuilding efforts. On the other hand, durable solutions, particularly return, cannot be achieved for internally displaced persons as long as there is a lack of security; property is not returned and conditions for sustainable solutions are not in place.171

IV. Conclusion

Displacement is an almost inevitable feature of armed conflict and displaced persons typically comprise a disproportionate number of civilians affected by armed (p.203) conflict. An examination of the protection of civilians in any given conflict situation therefore would be incomplete without considering the possibility, the plight, and the specific protection concerns of civilians forced to flee. Indeed, concern regarding the growing global displacement crisis and the particular vulnerabilities of displaced persons helped to propel the issue of protection of civilians onto the agenda of UN Security Council in 1999. In addition to featuring prominently in the Council’s now regular deliberations on the protection of civilians, displacement also receives attention in other thematic debates of the Council, in particular on women, peace, and security, and on children in armed conflict. Most importantly, in its consideration of specific crises, the Council now customarily calls upon parties to conflict to fulfil their obligations under international humanitarian law, international human rights law, and international refugee law, and urges parties to conflict to pay specific attention to addressing the differential protection and assistance issues facing refugees and IDPs.

International law, in particular international humanitarian law, international human rights law, and international refugee law, offers significant and specific protection to civilians in situations of displacement during armed conflict. International humanitarian law explicitly prohibits ordering the displacement of people unless this is absolutely necessary for imperative military reasons or for the protection of the affected civilians themselves. Moreover, compliance with the more extensive set of rules of international humanitarian law regarding the protection of civilians, as well as respect for international human rights law, would inevitably result in far fewer people being compelled to flee. In the event that displacement does occur, international human rights law, international humanitarian law, and international refugee law offer complementary and, collectively, comprehensive protection.

The lack of protection experienced by many displaced persons today owes to the inadequacy not of international legal norms but of their implementation. This observation is not novel, nor perhaps is it surprising. What is new and somewhat encouraging in recent years is the growing readiness on the part of the UN Security Council to call attention to the specific protection concerns of IDPs and refugees, to advocate respect for the international norms for their protection, and, most significantly, to adopt specific measures aiming to enhance the protection of IDPs and refugees in practice. Promising in this regard is the robust protection-of-civilians mandate, including specific measures to enhance the protection of refugees and IDPs, that the UN Security Council authorized for the UN Mission in South Sudan in 2014. At the same time, realities in South Sudan and other contemporary conflicts lay bare that much more needs to be done to effectively protect civilians in armed conflicts, including all those forced to flee.

The UN Secretary-General’s ‘Human Rights Up Front’ initiative, launched in late 2013, underscores that when governments fail to protect their populations, the UN ‘must do everything it can to meet its responsibilities’.172 To this end, a global (p.204) action plan is being implemented by the UN Secretariat.173 At the core of this initiative is the notion that protection is a collective responsibility. In this connection, at a 2014 meeting of the Security Council on the protection of civilians, the Under-Secretary-General for Humanitarian Affairs emphasized:

Parties to conflict must be pressed to do more to comply with their legal obligations and ensure accountability whenever such obligations are violated. But the responsibility does not lie solely with the parties themselves. This Council and the international community must take steps to tackle the impunity that continues to fuel many conflicts [...]. There is nothing that emboldens violators more than knowing that they will not be brought to account for their crimes.174

This statement brings to mind the Council’s indication of its readiness, in any given situation, to ‘[c]onsider applying targeted and graduated measures against parties to armed conflict who commit violations of applicable international law related to forced displacement’.175 Indeed, more systematic Security Council action that goes beyond statements of condemnation of violations to concretely promote and support respect for international humanitarian law, international human rights law, and international refugee law is needed to enhance protection for civilians, including for the millions forced into displacement.

Notes:

(1) United Nations High Commissioner for Refugees (UNHCR), World at War: Global Trends 2014 (Geneva: UNHCR, 2015), 2 <www.unhcr.org/556725e69.html#_ga=1.19795000.1018826459.1408318260> These figures do not include the many millions more people displaced by other causes, including natural disasters and development projects.

(2) Ibid., 3.

(3) Internal Displacement Monitoring Centre (IDMC) and the Norwegian Refugee Council, ‘Global Overview 2014: People Displaced Internally by Conflict and Violence’ (Geneva, May 2014) <www.internal-displacement.org/publications/2015/global-overview-2015-people-internally-displaced-by-conflict-and-violence>.

(4) The term ‘ethnic cleansing’ entered the international lexicon during the wars in the former Yugoslavia in the early 1990s to describe the ‘elimination by the ethnic group exercising control over a given territory of members of other ethnic groups. A wide variety of methods are used to accomplish this end, including ... transfer or relocation of populations by force.’ UN General Assembly (UNGA) and UN Security Council (UNSC), ‘Report on the Situation of Human Rights in the Territory of the Former Yugoslavia’ (1992) UN Doc A/47/666—S/24809, para. 9. Though the label was new, the phenomenon is not; indeed, it dates back to ancient times. See Andrew Bell-Fialkoff, Ethnic Cleansing (New York: St Martin’s Griffin, 1999); Norman M Naimark, Fires of Hatred: Ethnic Cleansing in the Twentieth-Century (Cambridge, USA: Harvard University Press, 2001); Alfred M de Zayas, A Terrible Revenge: The Ethnic Cleansing of the East European Germans (New York: Palgrave Macmillan, 2006); Ilan Pappe, The Ethnic Cleansing of Palestine (London: Oneworld, 2006).

(5) UNHCR, see n 1, 2.

(6) Syria Regional Refugee Response, <http://data.unhcr.org/syrianrefugees/regional.php>, figures as of 14 November 2015.

(7) The First World War displaced an estimated ten million civilians. Hugo Slim, Chapter 1 in this volume, citing Geoffrey Best, War and Law Since 1945 (Oxford: Oxford University Press, 1994).

(9) United Nations, Statement of the Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, Mr Stephen O’Brien, Statement to the UN Security Council on Syria, 16 November 2015.

(11) See generally Norwegian Refugee Council and International Rescue Committee, No Escape: Civilians in Syria Struggle to Find Safety Across Borders (New York: Norwegian Refugee Council and International Rescue Committee, 2014) <www.rescue.org/sites/default/files/resource-file/No%20Escape%20Syria%20report%20IRC%20final%20Nov2014.pdf>; Human Rights Watch, Not Welcome: Jordan’s Treatment of Palestinians Escaping Syria (New York: Human Rights Watch, 2014) <www.hrw.org/reports/2014/08/07/not-welcome-0>.

(12) Slim, Chapter 1 in this volume.

(14) Hugo Slim, Killing Civilians: Method, Madness and Morality in War (London: Hurst, 2007) 30–120, see especially 72–90.

(15) Slim, Chapter 1 in this volume.

(16) Human Security Report Project, Human Security Report 2013: The Decline in Global Violence: Evidence, Explanation, and Contestation (Vancouver, Human Security Press, 2014) 37, 44–6; Human Security Report Project, Human Security Report 2009/2010: The Causes of Peace and the Shrinking Costs of War (New York: Oxford University Press, 2011) 105–9.

(17) International Committee of the Red Cross (ICRC) and Ipsos, Our World: Views from the Democratic Republic of the Congo. Opinion Survey, 2009 (Geneva: Ipsos and ICRC, 2009) 16; ICRC and Ipsos, Our World: Views from Afghanistan. Opinion Survey, 2009 (Geneva: Ipsos and ICRC, 2009) 17.

(18) Nicholas Crawford, John Cosgrave, Simone Haysom, and Nadine Walicki, Protracted Displacement: Uncertain Paths to Self-Reliance in Exile (Overseas Development Institute, September 2015), 12 <http://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/9851.pdf>.

(19) See generally Erin Mooney, ‘The Concept of Internal Displacement and the Case for Internally Displaced Persons as a Category of Concern’ (2005) 24 Refugee Survey Q 9; Francis M Deng and Roberta Cohen, Masses in Flight: The Global Crisis of Internal Displacement (Washington, DC: Brookings Institution, 1998); Francis M Deng and Roberta Cohen, The Forsaken People: Case Studies of the Internally Displaced (Washington, DC: Brookings Institution, 1998).

(20) Peter Salama, Paul Spiegel, and Richard Brennan, ‘No Less Vulnerable: The Internally Displaced in Humanitarian Emergencies’ (2001) 357 The Lancet 1430, 1430–1. A major factor leading to these high mortality rates has been that IDPs often lack access to vaccination for entirely preventable diseases such as measles, whereas they note that ‘[m]ajor outbreaks of vaccine-preventable diseases such as measles have been uncommon in refugee camps since the late 1980s’ owing to the high priority placed on vaccination campaigns in refugee camps. A study in 2003 by Médecins Sans Frontières (MSF) found IDPs in northern Uganda suffered mortality rights five to ten times higher than expected in Uganda, owing to the rate of violence as well as measles outbreaks due to lack of vaccination. N Nathan, M Tatay, P Piola, S Lake, and V Brown, ‘High Mortality in Displaced Populations of Northern Uganda’ (2004) 363 The Lancet 1402.

(21) UNGA, ‘In Larger Freedom: Toward Development, Security and Human Rights for All, Report of the Secretary-General’ (2005) UN Doc A/59/2005, para. 210.

(22) UNSC Res 688 (1991) UN Doc S/RES/688, para. 1; Gregor Schotten and Anke Biehler, ‘The Role of the UN Security Council in Implementing International Humanitarian Law and Human Rights Law’, in Roberta Arnold and Noëlle Quénivet, International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law (Martinus Nijhoff, 2008) 317.

(23) This occurred following a request of the UN Commission on Human Rights. See UN Commission on Human Rights (CHR) Resolution (Res) 1991/25 (1991) UN Doc E/CN.4/RES/1991/25; CHR Res 1992/73 (1992) UN Doc E/CN.4/RES/1992/73.

(24) CHR Res 1992/73 (1992) UN Doc E/CN.4/RES/1992/73.

(25) UNSC (1993) UN Doc S/25344.

(26) Bryan Deschamp, Victims of Violence: A Review of the Protection of Civilians Concept and its Relevance to UNHCR’s Mandate (Geneva: UNHCR, 2010) para. 26; Security Council Report, ‘Cross-Cutting Report No 2: Protection of Civilians’ (New York: Security Council Report, 2008) 6.

(27) UNSC (1997) UN Doc S/PRST/1997/34.

(28) UNSC, ‘Report of the Secretary-General on the Protection for Humanitarian Assistance to Refugees and Others in Conflict Situations’ (1998) UN Doc S/1998/883; UNGA and UNSC, ‘Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa, Report of the Secretary-General’ (1998) UN Doc A/52/871—S/1998/318.

(29) UNSC Res 1208 (1998) UN Doc S/RES/1208, preambular para. 3.

(30) UNSC Statement by the President (2000) UN Doc S/PRST/2000/1.

(31) See, for example, UNSC Res 688 (1991) UN Doc S/RES/688, which was the first time that the Security Council recognized a threat to international peace and security on the grounds of human suffering—in this case, of displaced Kurds.

(32) UNSC Statement of the President (1996) UN Doc S/PRST/1999/6. For an insider’s account of the outcome, including regarding issues of displacement, see Elissa Golberg and Don Hubert, ‘The Security Council and the Protection of Civilians’, in Rob McRae and Don Hubert (eds), Human Security and the New Diplomacy: Protecting People, Promoting Peace (Montreal: McGill-Queen’s University Press, 2001) 226.

(33) UNSC, ‘Report of the Secretary-General on the Protection of Civilians in Armed Conflict’ (1999) UN Doc S/1999/957, paras 11–15, 18, 24, 35, 36, 39, 57, 61, 63, 64, 71.

(34) UNSC Resolution (Res) 1296 (2000) UN Doc S/RES/1296, para. 14.

(35) UNSC, ‘Letter dated 21 June 2001 from the President of the Security Council addressed to the Secretary-General’ (2001) UN Doc S/2001/614.

(36) UNSC Statement of the President (2014) UN Doc S/PRST/2014/3. For all of the issues covered in the Aide-Memoire, an addendum provides the Council with suggested language, mostly based on previous Council resolutions, to utilize in future Council resolutions so as to more systematically and effectively address key issues in the protection of civilians, including displacement.

(37) See Aide-Memoire on the Protection of Civilians in Armed Conflict, annexed to UNSC (2014) UN Doc S/PRST/2014/3, § B, F, addendum.

(38) The meeting was convened in ‘Arria-formula’, meaning an informal and confidential exchange of views among Council members and invited experts from international organizations and non-governmental organizations (NGOs), for which no official meeting report is published. See UNSC, ‘Background Note on the “Arria-Formula” Meetings of the Security Council Members’ in UNSC, Working Methods Handbook (New York: United Nations, 2011) <www.un.org/en/sc/about/methods/bgarriaformula.shtml>.

(39) ‘Security Council Meeting in Arria Formula on Protection of Internally Displaced Persons: Challenges and the Role of the Security Council’ <www.ohchr.org/Documents/HRBodies/SP/ArriaFormula_SC_on_protection_of_IDPs.pdf>.

(40) In 2010, the UN Human Rights Council reformulated the long-standing mandate, since 1992, of a Representative of the Secretary-General on the Human Rights of Internally Displaced Persons to be a Special Rapporteur on the Human Rights of Internally Displaced Persons. UN Human Rights Council (HRC) Res 14/6 (2010) UN Doc A/HRC/14/6.

(41) ‘Security Council Meeting in Arria Formula on Protection of Internally Displaced Persons: Challenges and the Role of the Security Council’ (No attribution, undated) <www.ohchr.org/Documents/HRBodies/SP/ArriaFormula_SC_on_protection_of_IDPs.pdf>.

(42) For example, regarding the UN Mission in the Central African Republic and Chad, see UNSC Res 1861 (2009) UN Doc S/RES/1861, para. 7(a)(i); regarding the UN Stabilization Mission in the Democratic Republic of the Congo, see UNSC Res 2098 (2014) S/RES/2098, paras 12(a), 13, and UNSC Res 2053 (2012) UN Doc S/RES/2053, para. 20; regarding the UN Mission in Liberia, see UNSC Res 2116 (2013) UN Doc S/RES/2116, para. 13. This is in addition to Council mandates to co-ordinate with humanitarians to create an environment conducive to return and to facilitate return movements.

(43) UNSC Res 2113 (2013) UN Doc S/RES/2113, para. 4(a); and see UNSC Res 1769 (2007) UN Doc S/RES/1769, para. 1, referencing UNSC, ‘Report of the Secretary-General and the Chairperson of the African Union Commission on the Hybrid Operation in Darfur’ (2007) UN Doc S/2007/307/Rev.1, para. 55(b)(1).

(44) UNSC Res 1990 (2011) UN Doc S/RES/1990, preambular paras 9, 12, and operational paras 3(d), 3(e) (recognizing that nearly all civilians in the Abyei area after May 2011 were returning displaced persons or seasonal migrants).

(45) UNSC Res 2149 (2014) UN Doc S/RES/2149, preambular para. 16, operational paras 28(a), 45.

(46) See, for example, UNSC Res 1894 (2009) UN Doc S/RES/1894, para. 1; UNSC Res 2175 (2014) UN Doc S/RES/2175, para. 1; UNSC Res 2165 (2014) UN Doc S/RES/1265, para. 1, 8; UNSC Res 2155 (2014) UN Doc S/RES/2155, paras 17–18.

(47) See, for example, UNSC Statement of the President (2014) UN Doc S/PRST/2014/3.

(48) See, in particular, Mélanie Jacques, Armed Conflict and Displacement: The Protection of Refugees and Displaced Persons under International Humanitarian Law (Cambridge: Cambridge University Press, 2012); Walter Kälin, Guiding Principles on Internal Displacement: Annotations (Washington, DC: American Society of International Law and the Brookings Institution, 2008); Guy S Goodwin-Gill, The Refugee in International Law (Oxford: Oxford University Press, 1996); James C Hathaway, The Law of Refugee Status (London: Butterworths, 1991).

(49) Jean-Philippe Lavoyer, ‘Refugees and Internally Displaced Persons: International Humanitarian Law and the Role of the ICRC’ (1995) 35 IRRC 162, 170.

(50) Statement by Mr Yves Daccord, in UNSC (2014) UN Doc S/PV.7109, 9.

(51) See, for example, Jakob Kellenberger, ‘The ICRC’s Response to Internal Displacement: Strengths, Challenges and Constraints’ (2009) 91 IRRC 475, 476 and 482; Lavoyer, see n 49, 170; Statement by Yves Daccord, see n 50, 8–9.

(52) See, for example, GIAD Draper, ‘The Relationship between the Human Rights Regime and the Laws of Armed Conflict’ (1971) 1 Israel YB on Human Rights 205, 208; Louise Doswald-Beck and Sylvain Vité, ‘International Humanitarian Law and Human Rights Law,’ (1993) 33 IRRC 94; René Provost, International Human Rights and Humanitarian Law, (Cambridge: Cambridge University Press, 2002); Hans-Joachim Heintze, ‘On the Relationship between Human Rights Law Protection and International Humanitarian Law’ (2004) 86 IRRC 789. See also Andrew Clapham, Chapter 6 in this volume.

(53) Guiding Principles on Internal Displacement, in CHR, ‘Report of the Representative of the Secretary-General, Mr Francis M Deng, Submitted pursuant to Commission resolution 1997/39’ (1998) UN Doc E/CN.4/1998/53/Add.2, addendum, Principle 5.

(54) United States, ‘General Orders No. 100, Adjutant General’s Office, 1863’ (Washington: US Government Printing Office, 1898) <www.icrc.org/ihl/INTRO/110> (the Lieber Code). Emphasis added.

(55) Frits Kalshoven, Constraints on the Waging of War (Geneva: ICRC, 1991) 12.

(56) A persuasive argument has been put forth that implicit protection against the deportation of civilians nonetheless can be found in the provisions of the Hague Regulations relating to the responsibilities of an occupying power. See Jacques, n 48, 23, citing M Sherif Bassiouni, Crimes against Humanity (Cambridge: Cambridge University Press, 1999) 302; Henckaerts, ‘Deportation and Transfer of Civilians’ (1993–1994) 26 Vanderbilt J Transnatl L 469, 481; Alfred de Zayas, ‘Mass Population Transfers’ (1975) Harvard L J 207, 212.

(57) Jean S Pictet, The Geneva Conventions of 12 August 1949: Commentary (Volume IV) (Geneva: ICRC, 1958) 279.

(58) Agreement for the establishment of an International Military Tribunal for the prosecution and punishment of the major war criminals of the European Axis (8 August 1945) 82 UNTS 279, articles 6(b), 6(c).

(60) Jacques, note 48, 23, citing Theodore Meron, ‘Deportation of Civilians as a War Crime’, in Donna Gomien (ed.), Broadening the Frontiers of Human Rights: Essays in Honor of Asbjørn Eide (Oslo: Scandavia University Press, 1993), and de Zayas, see n 56; Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law: Volume I: Rules (Cambridge: Cambridge University Press, 2009) 458, n 8.

(61) Geneva Convention relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287 (Fourth Geneva Convention).

(62) Ibid., Article 49.

(63) Ibid., Article 147; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3, Article 85(4)(a) (Additional Protocol I).

(64) Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90, Article 8(2)(b)(viii).

(65) Henckaerts and Louise Doswald-Beck, see n 59, 457, Rule 129.A.

(66) Yves Sandoz, Christophe Swinarski, and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: ICRC and Martinus Njihoff Publishers, 1987) 1472.

(67) Henckaerts and Doswald-Beck, see n 59, 74–6, Rule 24.

(68) Sandoz, Swinarski, and Zimmermann, see n 66, 1472–3.

(70) Henckaerts and Doswald-Beck, see n 59, 461–2.

(71) Ibid., 462, Rule 130.

(72) Ibid., 463, Rule 131.

(73) Ibid.; Fourth Geneva Convention, see n 611, Article 49, para. 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609, art 17(1), 4(3)(b) (Additional Protocol II).

(74) Additional Protocol II, see n 733, Article 17(2).

(75) Jacques, see n 48, 63, citing Karen Hulme, ‘Armed Conflict and the Displaced’ (2005) 17 Intl J Refugee L 97, 103.

(76) Sandoz, Swinarski, and Zimmermann, see n 66, 1474.

(78) Jacques, see n 48, 63–4.

(79) Jacques, see n 48, 65, citing Michael Bothe, Karl Josef Partsch, and Waldemar A Solf (eds), New Rules for Victims of Armed Conflicts (Leiden: Martinus Nijhoff Publishers, 1982); and see Official Record of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Volume XV) (Bern: Federal Political Department, 1978) 295, CDDH/215/Rev.1, para. 150.

(80) Jacques, see n 48, 65.

(81) Rome Statute of the International Criminal Court, see n 644, art 8(2)(e)(viii).

(82) Ibid., Article 7(1)(d); Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law in the Territory of the Former Yugoslavia since 1991, Article 5(d), annexed to UNSC, ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808’ (1993) UN Doc S/25704, adopted in UNSC Res 827 (1993) UN Doc S/RES/827; Statute of the International Tribunal for Rwanda, Article 3(d), annexed to UNSC Res 955 (1994) UN Doc S/RES/955.

(83) Henckaerts and Doswald-Beck, see n 59, 457, Rule 129.B.

(84) Guiding Principles on Internal Displacement, see n 53. On the background and status of the Guiding Principles, see section II of this chapter.

(85) Guiding Principles on Internal Displacement, see n 53, Principle 6(2)(a), (b), and (e). Principle 6 also defines displacement that is arbitrary in the context of natural disasters and in large-scale development projects.

(86) Ibid., Principle 6(3).

(87) Ibid., Principle 7(1).

(88) Ibid., Principle 7(2).

(89) Ibid., Principle 7(3).

(90) Ibid., Principle 7(2).

(91) Ibid., Principle 9.

(92) UNGA, ‘Report of the Independent Commission of Inquiry on the Syrian Arab Republic’ (2014) UN Doc A/HRC/25/65, para. 144 (Seventh Report of the Syria COI).

(93) UNGA, ‘Report of the Independent Commission of Inquiry on the Syrian Arab Republic’ (2014) UN Doc A/HRC/27/60, para. 132 (Eighth Report of the Syria COI).

(94) Ibid., para. 135.

(95) Ibid., para. 135; Independent International Commission of Inquiry on the Syrian Arab Republic, ‘Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, Rule of Terror: Living under ISIS in Syria’ (United Nations, 14 November 2014) paras 28–9, 77 <www.ohchr.org/Documents/HRBodies/HRCouncil/CoISyria/HRC_CRP_ISIS_14Nov2014.pdf>.

(96) For example, on 21 June 2013 and 25 July 2014, the commission briefed Council Members through Arria-formula meetings; thus no official verbatim records are published. For a recording of the two proceedings see, respectively, ‘Syria Commission of Inquiry presents latest report to Security Council’ United Nations Radio (New York, 21 June 2013) <www.unmultimedia.org/radio/english/2013/06/syria-commission-of-inquiry-presents-latest-report-to-security-council/>; and ‘Syria Arria’ United Nations Audiovisual Library (New York, 25 July 2014) <www.unmultimedia.org/avlibrary/asset/1142/1142297/>.

(97) UNSC Res 2170 (2014) UN Doc S/RES/2170.

(98) UNHCR, The State of the World’s Refugees: The Challenge of Protection (New York: Penguin Books, 1993) 33; UNHCR, ‘Welcoming the Stranger: Affirmations for Faith Leaders’ (Geneva: UNHCR, 2012) <www.unhcr.org/51b6de419.html>.

(99) Universal Declaration of Human Rights (UDHR) Article 14, which also specifies: ‘This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.’ UNGA Res 217(III), ‘A Universal Declaration of Human Rights’ (1948) UN Doc A/810, 71.

(100) Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (1951 Refugee Convention). Article 1A, paragraph 2 of the Convention limits the scope of the Convention to persons who fled ‘as a result of events occurring before 1 January 1951’ and States had the option, according to article 1B, paragraph 1(a), to interpret this provision as ‘events occurring in Europe before 1 January 1951.’

(101) Protocol relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267, Article I(2).

(102) In April 2015, only four States retained the geographical limitation: Congo, Madagascar, Monaco and Turkey. See UNHCR, ‘States Parties to the 1951 Convention relating to the status of Refugees and the 1967 Protocol’ (UNHCR, 2015) <www.unhcr.org/3b73b0d63.html>.

(103) Convention Governing the Specific Aspects of Refugee Problems in Africa (adopted 10 September 1969, entered into force 20 June 1974) 1001 UNTS 45.

(104) Cartagena Declaration on Refugees (published 22 November 1984) OAS Doc OEA/Ser.L/V/II.66/doc.10, rev. 1, 190–3.

(105) UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (Geneva: UNHCR, 2011) para. 164; Hathaway, see n 48, 93. See and compare, James Cantor and Jean-Francois Durieux (eds), Refuge from Inhumanity? War Refugees and International Humanitarian Law (Leiden: Brill, 2014).

(106) 1951 Refugee Convention, see n 100, Article 1.F.

(107) Fourth Geneva Convention, see n 611, Article 44; Additional Protocol I, see n 633, Article 73.

(108) Additional Protocol I, see n 633, Article 73.

(109) For a more detailed analysis, see Jacques, n 48, 159–84; Walter Kälin, ‘Flight in Times of War’ (2001) 83 IRRC 629–50; see also Lavoyer, n 49.

(110) Fourth Geneva Convention, see n 611, Articles 35–46.

(111) Fourth Geneva Convention, see n 611, Article 4, para. 2. Kälin, see n 109, 632, citing Additional Protocol I, see n 613, Article 73.

(112) Namely, ‘for offences committed after the outbreak of hostilities, or for offences under common law committed after the outbreak of hostilities, or for offences under common law committed before the outbreak of hostilities which, according to the law of the occupied State, would have justified extradition in time of peace’. Fourth Geneva Convention, see n 611, Article 70, para. 2.

(113) Ibid., Article 45.

(114) 1951 Refugee Convention, see n 100, Article 33.

(115) Fourth Geneva Convention, see n 611, Article 26; Additional Protocol I, see n 613, Article 74.

(116) 1951 Refugee Convention, see n 100, Article 33.

(117) Goodwin-Gill, see n 48, 121–24. The principle of non-refoulement is also found in the Convention against Torture, respect for which is monitored by the Committee against Torture. See, for example, UNGA, ‘Report of the Committee against Torture’ (2014) UN Doc A/69/44, para. 22; Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987), in UNGA Res 39/46 (1984) UN Doc A/RES/39/46.

(118) See Jean Allen, ‘Insisting on the Jus Cogens Nature of Non-Refoulement’, in Joanne van Selm, Khoti Kamanga, John Morrison, Aninia Nadig, Sanja Špoljar-Vržina, and Loes van Willigen, The Refugee Convention at Fifty: A View from Forced Migration Studies (Oxford: Lexington Books, 2003) 84–6; and see Elihu Lauterpacht and Daniel Bethlehem, ‘The Scope and Content of the Principle of non-refoulement: Opinion’, in Erika Feller, Volker Türk, and Frances Nicholson, Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (Cambridge: Cambridge University Press, 2003) 149–64. But see and compare James C Hathaway, The Rights of Refugees under International Law (Cambridge: Cambridge University Press, 2005) 364–8.

(119) Atle Grahl-Madsen, Commentary on the Refugee Convention 1951 (Geneva: UNHCR, 1963) 42.

(120) 1951 Refugee Convention, see n 100, Article 9.

(121) Stéphane Jacquemet, ‘The Cross-fertilization of International Humanitarian Law and International Refugee Law’ (2001) 83 IRRC 651, 654.

(124) Deschamp, see n 26, paras 14, 88.

(125) Ibid., para. 15.

(126) Ibid., para. 88.

(127) See Lavoyer, n 49; Françoise Bouchet-Saulnier and Anastasia M Warpinski, ‘Using the Law of War to Protect the Displaced’, MSF Activity Report, 2000–2001 (Paris: Médecins Sans Frontières, 2001). See also Marguerite Contat-Hickel, ‘Protection of Internally Displaced Persons affected by Armed Conflict: Concept and Challenges’ (2001) 83 IRRC 699; ICRC, Internal Displacement in Armed Conflict: Facing Up to the Challenges (Geneva: ICRC, 2009) 6–7.

(128) James Hathaway, ‘Forced Migration Studies: Could We Agree Just to “Date”?’ (2007) 20 J of Refugee Studies 349, 360. See also Sarah Collinson, James Darcy, Nicholas Waddell, and Anna Schmidt (eds), Realising Protection: The Uncertain Benefits of Civilian, Refugee and IDP Status, (London: Overseas Development Institute, 2009); John Cosgrave, Synthesis of Findings on ECHO’s Policy of Treating Affected Populations Without Regard to Pre-Conceived Categories, Specifically IDPs, Refugees, and Returnees, and Local Population, based on Reviews in Sudan, Angola and Afghanistan (Brussels: European Community Humanitarian Aid Office, 2004) <ec.europa.eu/echo/files/evaluation/2003/idp_synthesis_report.pdf>; John Borton, Margie Buchanan Smith, and Ralf Otto, ‘Learning from Evaluations of Support to Internally Displaced Persons: IDP Synthesis Report: Final Report’ (Ohain, Belgium: Channel Research, 2005) <ec.europa.eu/echo/files/evaluation/watsan2005/annex_files/ECHO/ECHO16%20-%20IDP%20Synthesis%20Final%20Report%20090105.doc>.

(129) Erin Mooney, ‘The Concept of Internal Displacement and the Case for Internally Displaced Persons as a Category of Concern’ (2005) 24 Refugee Survey Q 9; Francis M Deng and Roberta Cohen, Masses in Flight: The Global Crisis of Internal Displacement (Washington, DC: Brookings Institution, 1998); Francis M Deng and Roberta Cohen, The Forsaken People: Case Studies of the Internally Displaced (Washington, DC: Brookings Institution, 1998).

(130) Walter Kälin, ‘Walter Kälin on the Outlook for IDPs’ (2011) 37 Forced Migration Rev 43, 43–4.

(131) Jean-Daniel Tauxe, ‘We Should Have Access to Displaced Civilians’, International Herald Tribune (Paris, 1 March 2009) 10. At the time of writing this article, the author was the Director of Operations for the ICRC.

(132) Françoise Krill, ‘The ICRC’s Policy on Refugees and Internally Displaced Civilians’ (2001) 83 IRRC 607, 610.

(133) CHR, ‘Report of the Representative of the Secretary-General, Mr Francis Deng, submitted pursuant to Commission on Human Rights resolution 1993/95’ (1995) UN Doc E/CN.4/1995/50/Add.3; and CHR, ‘Report of the Representative of the Secretary-General, Mr Francis M. Deng, Submitted pursuant to Commission on Human Rights resolution 1995/57: Compilation and analysis of legal norms’ (1996) UN Doc E/CN.4/1996/52/Add.2.

(134) CHR Res 1997/39 (1997) UN Doc E/CN.4/RES/1997/39; UNGA Res 52/130 (1998) UN Doc A/RES/52/130.

(135) Guiding Principles on Internal Displacement, see n 53.

(137) Ibid., Introduction: Scope and Purpose, para. 2.

(138) Kälin, see n 48, 2.

(139) Participation by the author of this chapter in the final drafting meetings and consultations permits this observation. The fact that the Principles are based inter alia on international humanitarian law further underscores their applicability to non-state armed groups. See also Kälin, n 48.

(140) Guiding Principles on Internal Displacement, see n 53, Principles 5–9.

(141) Ibid., Principles 10–23.

(142) Ibid., Principles 12.

(143) Ibid., Principle 15.

(144) See Kälin, n 48.

(145) For examples, see Erin Mooney, ‘Principles of Protection for Internally Displaced Persons’ (2001) 38 Intl Migration 81, 86.

(146) Kälin, see n 109, 646.

(147) Ibid., 647.

(149) For a personal account of the main ICRC representative in this process, see Lavoyer, n 49; Kellenberger, n 511; Cordula Dorege, ‘Developments in the Legal Protection of IDPs’ [December 2008] Forced Migration Rev 8. See also Krill, n 132, 620.

(150) UNGA Res 60/1, ‘2005 World Summit Outcome’ (2005) UN Doc A/RES/60/1, para. 132.

(151) See Brookings-LSE Project on Internal Displacement, IDPs Laws and Policies Index (Washington, DC: Brookings Institution, Online, undated) <www.brookings.edu/about/projects/idp/resources/idp-policies-index>.

(152) African Union Convention for the Protection and Assistance of Internally Displaced Persons (adopted 22 October 2009, entered into force 6 December 2012) <au.int/en/content/african-union-convention-protection-and-assistance-internally-displaced-persons-africa>.

(153) UNSC (2000) UN Doc PRST/2000/1.

(154) Guiding Principles on Internal Displacement, see n 53, Principle 27.

(156) Universal Declaration of Human Rights, see n 99, Article 12.

(157) Fourth Geneva Convention, see n 611, Article 49(2).

(158) Additional Protocol I, see n 633, Article 85(4)(b).

(159) Guiding Principles on Internal Displacement, see n 53, Principle 6.

(160) For key such examples see Kälin, n 48, 125–30; Henckaerts and Doswald Beck, see n 59, 469.

(161) This right to return applies to those who have been displaced on account of the conflict and not to non-nationals who have been lawfully expelled. See Henckaerts and Doswald-Beck, n 59, Rule 132, 468–72.

(162) Guiding Principles on Internal Displacement, see n 53, Principle 28.

(164) UNHCR Executive Committee Conclusion No 75 (XLV), ‘Internally Displaced Persons’ (1993), in UNHCR, A Thematic Compilation of Executive Committee Decisions (Geneva: UNHCR, 2014) 85.

(165) Guiding Principles on Internal Displacement, see n 53, Principle 28.

(166) Ibid., Principle 29(1).

(167) Ibid., Principle 29(2).

(168) Ibid., Principle 30.

(169) Rule 133. Henckaerts and Doswald-Beck, see n 59, 472–4.

(170) See, for example, UNSC Res 2165 (2014) UN Doc S/RES/2165, preambular para. 7; UNSC Res 2100 (2013) UN Doc S/RES/2100, para. 16(e); UNSC Res 1925 (2010) UN Doc S/RES/1925, para. 12(g); UNSC Res 2098 (2013) S/RES/2098, para. 12(a); UNSC Res 2096 (2013) UN Doc S/RES/2096, para. 7(d); UNSC Res 1769 (2007) UN Doc S/RES/1769, para. 1; UNSC Res 1509 (2003) UN Doc S/RES/1509, para. 3(l); UNSC Res 1996 (2011) UN Doc S/RES/1996, para. 3(b)(v).

(171) Walter Kälin, Durable Solutions for Internally Displaced Persons: An Essential Dimension of Peacebuilding, Brookings Institute, 13 March 2008, http://www.brookings.edu/research/papers/2008/03/13-peacebuilding-kalin. At the time of writing, the author was the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons and Co-Director, Brookings-LSE Project on Internal Displacement.

(173) See Michael Keating and Richard Bennett, Chapter 16 in this volume.

(174) Statement of Ms Kyung-wha Kang on behalf of Ms Valerie Amos, in UNSC (2015) UN Doc S/PV.7374, 4.

(175) See Aide-Memoire on the Protection of Civilians in Armed Conflict, in UNSC Statement of the President (2010) UN Doc S/PRST/2010/25, annex.