International Humanitarian Norms and Principles
International Humanitarian Norms and Principles
International Humanitarian Norms and Principles
January 2010
Please Note
These guidance materials are for use as a reference for the following Workshops: Use of Legal Frameworks in Humanitarian Coordination; and Humanitarian Diplomacy: Negotiating and Advocating using International Norms and Principles. They should not be used or copied or referred to as IASC policy, or as the policy of the IASC member agencies or standing invitees. Please refer to key sources listed in the text for such authority.
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Table of Contents
1. Introduction to the Guidance Materials
Humanitarian Coordinators and International Norms and Principles The United Nations The Humanitarian Coordinator Humanitarian Coordinator Terms of Reference Humanitarian Coordination Competencies
4
5 5 6 7 7
2.
2.1 2.2
9
9 12
3.
3.1 3.2
International Principles
Humanitarian Principles The Code of Conduct for NGOs and RC/RC Movement in Disaster Relief and the SPHERE Humanitarian Charter
15
15 18
4.
4.1 4.2 4.3 4.4 4.5
20
20 24 27 28 29
5.
5.1 5.2 5.3 5.4
33
33 43 45 48
6.
6.1 6.2 6.2
Refugee Law
The 1951 Convention Relating to the Status of Refugees Other Terms UNHCR
49
49 51 52
7. 8. 9.
9.1 9.2
Internally Displaced Persons and International Law Affected Populations, Natural Disasters and International Law International Criminal Law (ICL)
International Crimes Role of National and International Courts
55 61 63
63 67
10.
10.1 10.2 10.3
Protection
Protection in Practice Security Council and United Nations Guidance The Responsibility to Protect
69
69 79 85
11
11.1 11.2 11.3
87
90 94
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Main elements
Key elements of the body of law explored are outlined. Please note that this is not a comprehensive outline of all elements of each body of law. Instead only issues directly relevent to the HC, coordination, advocacy and negotiation are outlined. For further detailed explainations of the body of law see More information on the topic (below).
Hot Issues
International law continues to evolve and develop. Humanitarian Coordinators need to be aware of difficult issues of ongoing debate that remain unresolved or continue to be disputed. This guidance material does not provide the correct answer for these controversies, but lists them as important issues that HC must be aware of.
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1.
International norms and principles are central to the function of the Humanitarian Coordinator (HC) both as a reference point and authority for humanitarian action, advocacy and negotiation. The following background document outlines a series of key areas which will be covered in the workshops being developed by the IASC for Humanitarian Coordinators and the HC Pool. Its particular focus is the daily role of HCs at a national level in advocating and negotiating international norms and principles. It is not intended to cover all bodies of law and references, but rather highlight areas of importance to HCs while attempting to provide direction on where resources from OCHA and the rest of the humanitarian system may be found.
We the Peoples of the United Nations Determined: to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom
The UN Charter reflects the sovereignty of States and their rights to be free from interference in their regulation of the domestic domain. The exception exists in the power of the Security Council, under Chapter VII of the UN Charter, to define and respond to threats to international peace. Membership to the United Nations provides recognition to States as sovereign equals and in return States regulate their behaviour internationally by avoiding the use of armed force and internally by promoting human rights. The obligation on States to protect, promote and ensure the rights of people within the State - in effect a duty of care for its populace - forms the foundations of good international citizenship.1 In humanitarian crises the responsibility of States is not only to the international system, but also to its citizens through the treaties it has signed or are recognized as customary international law. The General Assembly has declared that it is the primary responsibility of States to provide assistance to victims of natural disasters and other similar emergencies that occur within their territory, including initiation, organization, coordination and implementation of humanitarian assistance. However, while recognizing the sovereignty of States, the Assembly has warned that abandonment of the victims of such situations without humanitarian assistance constitutes a threat to human life and
G. Evans and M. Sahnoun (eds), The Responsibility to Protect Report of the International Commission on Intervention and State Sovereignty (2001) 8.
1
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an offence to human dignity2 The Guiding Principles for Internally Displaced Persons also highlight the primary duty and responsibility of States to provide protection in addition to humanitarian assistance, encompassing a broader conception of human security. It affirms the right of the displaced to seek such security without repercussions or punishment for demanding those rights. The Purpose of the Charter outlined in its first Article anticipates the role of the United Nations in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion. The UN General Assembly further clarified the approach of the United Nations system to humanitarian response in its Resolution 46/182 of 1991, in which it created the function of the Emergency Response Coordinator (ERC) and the Inter Agency Standing Committee (IASC). In 1994 the IASC formalized the position of the Humanitarian Coordinator, as a designated representative of the ERC.
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The Humanitarian Coordinator has an important role to play in championing international principles, in particular humanity, neutrality, impartiality and independence. The same principles of humanity also drive international support and concern resulting in major international responses. Customary international law reflects fundamental concepts, accepted and acted on by most States, and while not legally binding, influence and limit States. They should apply regardless of whether a State has signed a particular treaty. Different stakeholders become critical in crises including humanitarian NGOs, the Red Cross/Red Crescent Movement, civil society and other non-State actors. In addition to specific legal instruments, it is critical for the HC to have an understanding of the mandates and principles of each stakeholder, and how they position themselves in relation to particular humanitarian principles and norms.
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of UNDG they also use the HC Competencies as one of the benchmarks for considering the suitability of candidates being submitted to the IAAP for RC positions in disaster-prone countries. The following two competencies are specific to the Humanitarian Coordinators function in relation to International Humanitarian Principles and Legal Norms:
Effective Behaviour
1. Develops strategic plans for the achievement of the humanitarian goals, in collaboration with the humanitarian country team, building in appropriate contingencies. 2. Demonstrates an excellent understanding of humanitarian principles, standards and mandates. 3. Develops strategy with view to improved access, delivery of assistance and protection of affected populations. 4. Develops strategy taking agency mandates into account. 5. Demonstrates an excellent understanding of the complex interrelationships of factors which impact on international humanitarian assistance. 6. Anticipates new trends and identifies opportunities to promote the goals of the humanitarian community. 7. Addresses underlying complex issues that have the potential to impact the implementation of the vision. 8. Takes an active role in developing and articulating a clear and coherent identity for the entire humanitarian community and builds commitment to this inside and outside of the UN.
Effective Behaviour
1. Scans the strategic external environment, identifies opportunities and threats, stakeholders, and those likely to oppose change, and seeks out allies and builds partnerships. 2. Uses an appropriate advocacy mode of action to achieve immediate and sustainable change in the short, medium, and in the long term. 3. Uses a range of active advocacy approaches. 4. Advocates for the inclusion of humanitarian principles in existing structures and processes. 5. Uses complex and multi-layered influencing strategies to negotiate access, enable humanitarian assistance, and ensure protection. 6. Negotiates skilfully in difficult situations and settles differences with minimum noise. Is aware of and understands his/her own negotiation styles and preferences. Is assertive and decisive, as well as diplomatic. Wins concessions without damaging relationships. 7. Understands motivations of counterparts, the tactics commonly used in negotiations and the appropriate means to counter them. Fashions creative solutions that satisfy all parties. 8. Acts fairly and unbiasly and is able to build trust between negotiation partners.
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2.
Main elements
The Statute of the International Court of Justice is generally recognised as a definitive statement of the sources of international law. It lists among other things: International conventions, i.e. treaties; International custom, as evidence of a general practice accepted as law, i.e. Customary international law; The general principles of the law recognized by civilized nations; and Judicial decisions and the most highly qualified juristic writings, as subsidiary means for the determination of rules of law.
Hierarchy of Norms
On the question of preference between sources of international law, rules established by treaty will take preference if such an instrument exists. It is also argued however that international treaties and international customs are sources of international law of equal validity - new custom may supersede older treaties and new treaties may override older custom. Certainly, judicial decisions and juristic writings are regarded as auxiliary sources of international law. The other situation in which a rule would take precedence over a treaty provision would be where the rule has the special status of being a peremptory norm or jus cogens (see below). It may be argued that the practice of international organizations, most notably that of the United Nations, as it appears in the resolutions of the Security Council and the General Assembly, are an additional source of international law. It has been argued that there is a hierarchy of legal norms, in decreasing order of authoritativeness: Jus cogens, or peremptory norms of international law; The United Nations Charter; International conventions and customary international law; Security Council resolutions adopted under Chapter VII of the UN Charter; International contracts or operational mandates of international forces or institutions; and Soft law and other resolutions, declarations, and decisions of international organizations. 3
Franoise Bouchet-Saulnier, The Practical Guide to Humanitarian Law, Medecins Sans Frontieres, p 135.
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Treaties
Treaties are formal agreements between States (or between States and intergovernmental organisations, or between intergovernmental organisations). Their name may vary: charters, protocols, covenants, or agreements to indicate, for instance, the political significance of a Charter, or the technical nature of a Protocol. However, legally speaking, there is no difference between these words: they are binding contracts between the parties. Treaties can be loosely compared to contracts: both are ways for willing parties to assume obligations, and a party to either that fails to live up to its obligations can be held liable under international law for that breach. The central principle of treaty law is expressed in the maxim pacta sunt servanda - pacts must be respected or treaties are binding. Treaties may be bilateral (with two parties) or multilateral (involving many parties). In todays world, there are thousands of treaties. Some are key, such as the United Nations Charter, while others may have a very limited scope, such as a treaty on technical cooperation between two States. Treaties are only binding on those States that have ratified them. Treaties usually require two separate procedures to come into force: signature followed by ratication. While signature does not bind a State, it does oblige the State to behave in a way which does not defeat the object and purpose of the treaty pending the States ratification of the instrument. At the national level, ratification is usually effected by means of an act of parliament, although it may also be done through other means, such as a referendum. In respect of certain treaties and in accordance with prescribed procedures, States may make reservations to exclude or modify the application to them of certain provisions of a treaty. The main condition is that such reservations do not run counter to essential substantive elements of the treaty. Some treaties exclude reservations, or allow them only for some articles of the treaty. A multilateral treaty will enter into force once the number of ratifications required by the treaty is reached. A State must comply with treaties to which it is a party and which are in force. Implementing treaties may require that a State modifies its national legislation and/or practices, trains civil servants, etc. Resources and willingness are key to that purpose. Under International Human Rights Law, the State is the primary duty bearer to protect, respect and promote all human rights of its citizens.
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Peremptory Norms
A peremptory norm (also called jus cogens, Latin for "compelling law") is a fundamental principle of international law which is accepted by the international community of States as a norm from which no derogation is ever permitted. There is no clear agreement regarding precisely which norms are jus cogens nor how a norm reaches that status, but it is generally accepted that jus cogens includes the prohibition of genocide, maritime piracy, slaving in general (to include slavery as well as the slave trade), torture, and wars of aggression and territorial aggrandizement.
Soft Law
Soft international law is an important body of non-binding standards usually adopted at the multilateral level (declarations, bodies of principles, standard minimum rules, etc.). Soft law often elaborates and further develops treaty provisions and can lead to the adoption of new legal standards. At a certain stage, standards that have been repeated many times in resolutions, declarations, etc. might be considered as constituting customary rules. These standards may then be codified into a binding treaty.
Hot Issues
Judgements by international courts such as the International Court of Justice are authoritative, and provide important guidance on emerging international norms. There are important cases where their judgments are not accepted by one State in the dispute, but the international community considers the finding of the Court as binding (eg. Nicaragua v USA case, Palestinian Wall case). States may develop their own interpretation of international law which may be at odds with internationally accepted interpretations of treaties. International law takes precedence over national law. In practice, however, the situation is not that simple. National judges, for instance, are sometimes reluctant to allow international norms to prevail over national legislation. In some countries, international law can have effects only if it is formally incorporated into national legislation. That violation of law may not always lead to sanctions by the international community, in particular judicial sanctions. The partial application of sanctions may be seen as biasing stronger States who violate international norms. If a customary rule is breached by a State that consistently objects, that rule still remains binding. The objecting State, of course, would dispute this and argue that their actions nullify the customary nature of a rule.
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American Society of International Law Guide to Electronic Resources for International Law. Useful portal to access information on international law. http://www.asil.org/treaty1.cfm
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What is a State?
The terms country, nation, State and government are often used interchangeably. However, from an international law perspective, the only correct term is State. Four objective criteria need to be met for a State to exist: A permanent population; A defined territory even though borders or part of a territory may be disputed; A sovereign government - in other words a government not subject to the authority of another one; and The capacity to enter into relations with other States. This criterion is sometimes merged with the existence of a sovereign government. In addition, a subjective criterion is key to the statehood: the recognition by other States. This is a criterion for which political considerations will have a strong influence. States may have different views on whether a particular entity should be recognised as a State having split away from an existing recognized State (e.g. Eritrea, East Timor, etc.). As a result, the solution found in a regional organisation may differ from a solution adopted at United Nations level. In the latter case, membership of the United Nations will require a vote from both the General Assembly and the Security Council. Under IHRL the State is the primary duty bearer to protect, respect and promote all human rights of its citizens.
International Organisations
International organisations play an increasingly important role in the relationships between States. An international organisation is one created by an international treaty or which has membership consisting primarily of States. Strictly speaking, the most accurate term is intergovernmental organisations. They are considered as having international legal personality: in other words, they can have rights and obligations under international law. UN General Assembly Resolution 46/82 provides the foundation for coordination of humanitarian activities in support of States and created the InterAgency Steering Committee post of the Emergency Relief Coordinator. International organizations usually enjoy immunities, facilities and privileges on the territory of States, especially member States. For the United Nations, the 1946 and 1947 Conventions are the key texts. Organised armed groups participating in non-international armed conflicts also have obligations under international law. Moreover, it is increasingly accepted that when they have control over a population and are exercising elements of governmental authority, such groups should comply with human rights law.
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Other Actors
Other actors, such as individuals, non-governmental organisations (NGOs), commercial companies, etc. do not have international legal personality under international law. Some exceptions exist in relation to Human Rights Law. This body of law grants individuals rights and establishes mechanisms which enable them to bring complaints against States. It also creates individual criminal responsibility for a number of serious violations. However, these actors are largely subject to the States national laws. This is the case, in particular, for NGOs, acting in the context of emergency response. States have the primary responsibility to ensure that transnational corporations and other business enterprises respect human rights. Within their respective spheres of activity and influence, transnational corporations and other business enterprises have the obligation to promote, secure the fulfilment of, respect, ensure respect of and protect human rights recognized in international as well as national law, including the rights and interests of indigenous peoples and other vulnerable groups.
Hot Issues
In certain situations, there can be disputes as to whether an entity has attained Statehood, and this may be a delicate political issue. Sometimes Transnational Corporations are contributing to human rights violations and responsibilities of the host and the home State of the corporation are often blurred.
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3.
International Principles
Main elements What are Humanitarian Principles and where do they come from?
The principles are: Humanity: Human suffering must be addressed wherever it is found. The purpose of humanitarian action is to protect life and health and to ensure respect for the human being. Impartiality: Humanitarian action must be carried out on the basis of humanitarian need alone, giving priority to the most urgent cases of distress and making no distinctions on the basis of nationality, race, religious beliefs, class or political opinions. Neutrality: Humanitarian actors must not take sides in hostilities or engage in controversies of a political, racial, religious or ideological nature. Independence: Humanitarian action must be autonomous from the political, economic, military or other objectives that any actor may hold with regard to areas where humanitarian action is being implemented. The central role of these principles for humanitarian action by the UN stems from GA 46/182 (1991) which endorsed the principles of humanity, neutrality and impartiality; sought to strengthen the coordination of humanitarian assistance in the UN system; and established the ERCs mandate. GA 58/114, (2003) added independence as another important principle underpinning humanitarian action. These four principles (and three additional ones of particular relevance to the Red Cross Red Crescent Movement, i.e. Unity, Voluntary Service and Universality) were originally codified in the Fundamental Principles of the Red Cross and Red Crescent Movement.
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Hot Issues
Humanitarian actors may face restrictions or conditions imposed by parties to conflict or affected States which effect the provision of humanitarian assistance in a principled manner and endanger perceptions of impartiality. An affected State may refuse the distribution of food to persons in need in areas controlled by rebel groups or may insist that such distributions be channelled only through government entities. Independence and impartiality may be further complicated when non-traditional aid providers, such as armed forces, provide material aid in order to win the hearts and minds of affected populations. This carries the high risk of blurring the distinction between humanitarian action and other assistance which is not exclusively humanitarian in character nor provided in a neutral and impartial manner. The IASC Guidelines on the Use of Military and Civil Defence Assets underscore that such assets, including armed escorts, must be utilised only as a last resort. Humanitarian organisations commonly face the dilemma of whether to use armed escorts in order to gain access. In insecure environments, in an attempt to meet their responsibilities to provide for the safety and security of humanitarian actors, host States may offer - or even try to insist on providing - military or police escorts. This may have immediate benefits in terms of being able to physically reach certain populations. However, impartiality and independence may be risked by such an approach. Humanitarian actors apparent proximity with one side to the conflict could undermine perceptions of their neutrality and independence, putting them at risk of being caught in crossfire or subject to targeted attacks. Over the long term, this will ultimately have the effect of further reducing access. Inconsistent compliance with humanitarian principles on the part of humanitarian organisations across various contexts, as well as within the humanitarian community, may mean that other actors may be increasingly inclined to dismiss humanitarian principles as optional or impractical rather than essential to humanitarian action.
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The UN has multiple simultaneous roles and objectives in situations of armed conflict. Humanitarian actors are often expected to align their activities with overarching political objectives being supported by the UN. There is a risk that humanitarian actors of the UN may be perceived to be partial and political.
On-line publications:
Jean Pictets Commentary of the Fundamental Principles, 1979 http://www.icrc.org/Web/eng/siteeng0.nsf/html/EA08067453343B 76C1256D2600383BC4?OpenDocument&Style=Custo_Final.3&View= defaultBody2 This Commentary is the key document on the Red Cross and Red Crescent Fundamental Principles.
Humanitarian advocacy in Darfur: the challenge of neutrality, Humanitarian Policy Group (HPG) Policy Brief 28, October 2007 Available on http://www.odi.org.uk/resources/download/341.pdf
Humanitarian Exchange Magazine No. 25 - Neutrality, December 2003 http://www.reliefweb.int/rw/lib.nsf/db900sid/SSHN77TKJR/$file/odihpn-dec2003.pdf?openelement The special issue of Humanitarian Exchange focuses on neutrality in humanitarian action. Articles explore the concept of neutrality in many facets: neutrality in the public position adopted by organisations regarding political disputes; neutrality in the actual effect of their interventions (does it advance the war aims of one or other party?); and the perception by others of the neutrality of an organisation.
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3.2 The Code of Conduct for NGOs and RC/RC Movement in Disaster Relief and the Sphere Humanitarian Charter
Why is it important for my work as HC
The Code of Conduct for NGOs and RC/RC Movement in Disaster Relief, and the Sphere Humanitarian Charter, have been adopted by a large number of humanitarian NGOs and reiterate many of the same fundamental humanitarian principles underpinning humanitarian action. Neither, however, is binding on States or the United Nations. While many UN agencies derive their mandates from specific treaties or conventions, or States which are bound by treaty obligations, many non-governmental organizations rely on humanitarian principles as reference points for their undertaking humanitarian action. The Code of Conduct provides an important reference for the HC in his/her role as facilitator between the various elements of the humanitarian system. It provides a common ground on many principles to begin a dialogue on humanitarian action.
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Principles of Conduct
1) 2) 3) 4) 5) 6) 7) 8) 9) 10) The humanitarian imperative comes first; Aid is given regardless of the race, creed or nationality of the recipients and without adverse distinction of any kind. Aid priorities are calculated on the basis of need alone; Aid will not be used to further a particular political or religious standpoint; We shall endeavor not to be used as an instrument of government foreign policy; We shall respect culture and custom; We shall attempt to build disaster response on local capacities; Ways shall be found to involve program beneficiaries in the management of relief aid; Relief aid must strive to reduce vulnerabilities to future disaster as well as meeting basic needs; We hold ourselves accountable to both those we seek to assist and those from whom we accept resources; and In our information, publicity and advertising activities, we shall recognize disaster victims as dignified human beings, not hopeless objects.
The Code also includes annexes containing recommendations for international organisations, affected States, and donor governments. Of course, as none of them have signed the Code, they are not bound by the annexes.
Hot Issues
The ten principles of conduct of the Code are sometimes in contradiction and tension, in particular the humanitarian imperative and independence.
On-line publications:
The Humanitarian Charter and Minimum Standards for Disaster Response, 2004. http://www.sphereproject.org
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4.
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Treaty bodies
Committee on the Elimination of Racial Discrimination (CERD)
ICCPR-OP1 Optional Protocol to the International Covenant on Civil and Political Rights Human Rights Committee (CCPR) ICCPR-OP2 Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty ICESCR International Covenant on Economic, Social and Cultural Rights
Committee on Economic, Social and ICESCR-OP Optional Protocol of the Covenant on Economic, Social Cultural Rights (CESCR) and Cultural Rights CEDAW Convention on the Elimination of All Forms of Discrimination against Women
Committee on the Elimination of Discrimination Against Women OP-CEDAW Optional Protocol to the Convention on the Elimination (CEDAW) of Discrimination against Women CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
OP-CAT
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CRC
OP-CRC-AC Optional protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict OP-CRC-SC Optional protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography ICRMW International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families International Convention for the Protection of All Persons from Enforced Disappearance Convention on the Rights of Persons with Disabilities Committee on the Rights of Persons with Disabilities (CRPD)
ICPPED
CRPD
OP-CRPD Optional Protocol to the Convention on the Rights of Persons with Disabilities
Each of these treaties has established treaty bodies, i.e. committees of independent experts to monitor implementation of the treaty provisions by its States parties. States parties are obliged to report regularly to the treaty bodies. Some committees are also empowered to examine individual complaints against governments for human rights violations. The main functions of treaty bodies are to: Examine reports submitted by the States parties to the treaty in question and issue guidance to the States in the form of Concluding Observations; Consider individual complaints in cases where the relevant treaty provides for that possibility and where the State in question is a party to the procedure; In the case of the committees monitoring the Convention Against Torture and the Convention on the Elimination of All Forms of Discrimination Against Women, to undertake, with the consent of the State involved, targeted investigations regarding States which give particular cause for concern; and Issue authoritative interpretation of the rights contained in the treaties in the form of General Comments.
Scope of Application
Human rights are applicable at all times whether in time of peace, of state of emergency (i.e. natural disaster) and/or armed conflict. The rights established in human rights treaties are to be enjoyed by all persons on the territory or subject to the jurisdiction of a State party, including non-citizens such as refugees, stateless persons, and migrants. Although certain human rights can be derogated from in times of public emergency, many human rights guarantees can never be suspended, e.g. the prohibition of the use of torture. Moreover, in accordance with the International Covenant on Civil and Political Rights, derogation from human rights obligations declared in a situation of public emergency that threatens the life of the nation must be officially proclaimed, must not be inconsistent with the States obligations under international law, must not involve discrimination and must include only measures strictly required by the exigencies of the situation. States may also enter reservations to some provisions of international human rights treaties, insofar as they do not go against the spirit and nature of the treaty.
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In times of armed conflict, IHRL and international humanitarian law apply in a complementary and mutually reinforcing way. IHRL is also closely interlinked with international refugee law.
State Obligations
Compliance with international human rights is a State obligation. States are bound to respect, protect and fulfil the rights contained in treaties they are a party to.
Respect
States are obliged to ensure that human rights are fully respected in the context of State policies, laws and actions. This obligation requires States to ensure that none of its ministries or public servants violate or impede enjoyment of human rights by their policies or actions.
Protect
States are obliged to ensure that enjoyment, by everyone without discrimination, of all their human rights is protected from abuse by third parties i.e. from the actions of individuals and groups at all levels of society, including corporations, institutions and public and private bodies. This protection should be through the introduction of laws to protect human rights, and the provision of affordable and accessible redress procedures in the event of abuse of the rights.
Fulfil
States are obliged to take the necessary steps to ensure the realisation of human rights in practice through the adoption of legislative and other measures, such as the provision of education and other public services and policies designed to ensure access for everyone to basic needs. The obligation to fulfil includes the obligations to facilitate, promote and provide. In the context of economic, social and cultural rights, States are obliged to take all measures to achieve the progressive realisation of the rights. However, States obligations are less firm than other rights. Some obligations are required to be implemented immediately, such as the elimination of discrimination, the provision of free and compulsory primary education for all, access to the minimum essential food which is nutritionally adequate and safe, access to basic shelter, housing and sanitation, and an adequate supply of safe drinking water.
Non-State Actors
While non-State actors are not, as such human rights duty bearers, certain groups such as economic actors and non-State armed groups sometimes voluntarily agree to respect human rights responsibilities. Indeed, non-State actors are increasingly encouraged to do so. Examples include the Human Rights Guidelines for Pharmaceutical Companies in relation to Access to Medicines issued by the Special Rapporteur for the enjoyment of the highest attainable standard of physical and mental health, A/63/263; and the Framework for Business and Human Rights issued by the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, A/HRC/8/5. There are many examples of armed groups agreeing to respect human rights standards, either generally or regarding specific groups, such as children. NonState groups may have also committed to human rights standards through a peace agreement. Furthermore, non-State actors may have specific legal obligations deriving from international human rights treaties. For example, the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict provides that non-State actors should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years. Failure to do so may entail international criminal responsibility.
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On this basis, it is possible to undertake human rights advocacy with non-State actors even though they are generally not bound by human rights law.
Hot Issues
Progressive realization of economic, social and cultural rights continues to be invoked by States as the excuse for not taking any step towards the implementation of their legal obligations. In times of emergencies, the expectation that the international community will provide for the economic and social needs of a population is even bigger. Even in such circumstances, States continue to have legal obligations towards the implementation of all sets of rights. State responsibilities in this respect should be reiterated by HCs and the humanitarian community. There is sometimes a fine and moving line of what can be considered human rights responsibilities of non-State actors under international human rights law. HCs should not equate engagement with non-State actors for the protection of human rights with the attribution of human rights legal obligations, i.e. when HCs engage with non-State actors, it does not automatically mean they consider non-State actors as duty bearers. As a general practice engagement with non-State actors is encouraged to further human rights protection. HCs should request ad hoc legal advice as necessary and develop on that basis the arguments to be used in their interaction with non-State actors.
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Main elements
In addition to treaty bodies (see above in section 4.1.) in charge of monitoring the implementation of the core human rights instruments, other UN bodies and organs play a role in the promotion and protection of human rights. Below are some of the more pertinent amongst these.
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Special procedures
Special procedures refer to the mechanism established by the former Commission on Human Rights and assumed by the Human Rights Council to examine, monitor, advise and publicly report on a human rights situation in a specific country (country mandates) or on a thematic issue (thematic mandates). In 2009, there were 39 special procedures: 8 country mandates and 31 thematic, including special rapporteurs, independent experts, representatives of the Secretary General and working groups (all known as special procedures mandate-holders). Special procedures publicly report to the Human Rights Council and some to the General Assembly. Their reports focus on: Thematic studies; The country visits undertaken; and The communications sent to concerned governments on allegations of human rights violations and replies received. Thematic studies of special procedures also focus on humanitarian contexts. An example is the report on the right to education in emergency situations of the Special Rapporteur on the right to education (A/HRC/8/10). Together with the general comments of treaty bodies, the recommendations of special procedures, both those contained in thematic reports and in reports on country visits, provide expert and authoritative guidance on the concrete and specific steps that needs to be taken to implement human rights on the ground. Special procedures are independent authoritative human rights voices that can speak publicly and openly on protection and human rights concerns in emergency situations. This can be done through press releases and statements they can issue; through communications and urgent appeals they send to concerned governments; and through the advocacy work they do in the course of a country visit. The Representative of the UN Secretary-General on the human rights of internally displaced persons referred to in section 7 of the guidance materials is one of the 31 thematic special procedures.
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Main elements
Several inter-governmental organizations at the regional level have set up binding and non-binding human rights standards and related promotional, monitoring and judicial mechanisms. The table below lists the main ones. Region Organization Main human rights instruments African Charter on Human and Peoples Rights , 1981 Human rights institutions and mechanisms African Commission on Human and Peoples Rights (ACHPR), 1986 African Court on Human and Peoples Rights (AfCHPR), 2004 Inter-American Commission on Human Rights (IACHR), 1978 Inter-American Court of Human Rights, 1978
Africa
Americas
Europe
Council of the League of Arab States Association of Southeast Asian Nations (ASEAN) Council of Europe (COE)
Arab Charter on Human Rights, 20044 No treaty or declaration adopted European Convention on Human Rights, 1950
ASEAN Intergovernmental Commission on Human Rights (AICHR), 2009 European Court of Human Rights, 1959 Commissioner for Human Rights, 1999 Court of Justice of the European Union (CURIA), 1952 Fundamental Rights Agency (FRA), 2007
The UN High Commissioner for Human Rights expressed her concerns about the incompatibility of some provisions of the Arab Charter with international norms and standards. These concerns included the approach to death penalty for children and the rights of women and non-citizens. See press release at: http://www.unhchr.ch/huricane/huricane.nsf/view01/6C211162E43235FAC12573E00056E19D?opendocument
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Main elements
States can implement their human rights obligations through several types of measures, including: Legislative: making the necessary legal changes to promote and protect human rights; Executive: protecting and promoting rights across all parts of governance of society; Policy-making: ensuring that national policy and programmes and supporting budgets reflect the human rights commitments; Judicial: ensuring access to justice and other remedies for redress of human rights violations; Institutional: setting up functioning institutions to facilitate the implementation of human rights standards and policies. States are encouraged to establish independent national human rights institutions. Educational: ensuring that all levels of the educational system support and promote a human rights culture, and nourishing a strong civil society capable of playing a vigorous part in building and supporting that culture.
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The six key criteria of the Paris Principles are: Independence guaranteed by statute or constitution; Autonomy from government; Pluralism, including in membership; A broad mandate based on universal human rights standards to both promote and protect all human rights at the national level; Adequate resources, which is a State obligation to ensure; and Act as a bridge between civil society and the government.
Hot Issues
The level of independence of a national institution from its respective government may vary from country to country or from one government to the next, and could have an impact on the quality and reliability of the information provided by the national institution. A national institution accredited as formally complying with the requirements of the Paris Principles has to act in accordance with its mandate, maintain its independence in practice and act impartially in the exercise of its functions. This is measured for example through its de facto credibility, the integrity and professionalism of its members; through public perception, and interaction with human rights defenders and civil society.
Main elements
A human-rights based approach identifies rights-holders and their entitlements and corresponding duty-bearers and their obligations. It works towards strengthening the capacities of rights-holders to make their claims and of duty-bearers to meet their obligations. For a more effective, sustainable and comprehensive response, humanitarian action should be rights-based. The human rights system is underpinned by the following principles:
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Hot Issues
The concept that all human rights are indivisible may appear to be challenged in emergencies, when rights are triaged or prioritized, with an emphasis on survival rights, non-derogable rights and rights linked to saving life, alleviating suffering and maintaining human dignity. Nevertheless, the fact that operational measures are taken to protect certain rights as a matter of priority does not affect the indivisibility of human rights as a whole. HCs need to address all survival rights but advocate for a holistic human rights interpretation.
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Handbook for the Protection of Internally Displaced Persons, Global Protection Cluster Working Group, Provisional release http://www.humanitarianreform.org/Default.aspx?tabid=294
Growing the Sheltering Tree: Protecting Rights Through Humanitarian Action, IASC, 2002 http://www.allindiary.org/uploads/B9-IASC_Protection_manual__growingtheshelteringtree.pdf
Human Rights and Natural Disasters: Operational Guidelines and Field Manual (Pilot Version March 2008) http://www.reliefweb.int/rw/lib.nsf/db900sid/KHII7EE9KM/$file/brookings_HR_mar08.pdf?openelement
Humanitarian Coordinator and Resident Coordinator Checklist of Housing, Land and Property Rights & Broader Land Issues throughout the displacement Timeline from Emergency to Recovery, 2009 http://www.humanitarianreform.org/humanitarianreform/Portals/1 /cluster%20approach%20page/clusters%20pages/Protection/HC%2 0Checklist%20on%20HLP%20and%20Land%20Issues_Final2.doc
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Websites:
Office of the High Commissioner for Human Rights http://www.ohchr.org international human rights standards, mechanisms and bodies; thematic human rights areas; country information; OHCHR publications Universal Human Rights Index of UN documents http://www.universalhumanrightsindex.org/ instant access on all countries to human rights information from the United Nations system, based on the observations and recommendations of the UN Treaty Bodies monitoring the implementation of the core international human rights treaties (since 2000) and the Special Procedures of the Human Rights Council (since 2006) African Commission on Human and Peoples Rights http://www.achpr.org/ Inter-American Commission on Human Rights http://www.cidh.oas.org/defaulte.htm Council of Europe http://www.coe.int/ The Rule of Law in Armed Conflicts Project http://www.adh-geneva.ch/RULAC/index.php - an initiative of the Geneva Academy of International Humanitarian Law and Human Rights to support the application and implementation of international law in armed conflict http://www.humanrightstools.org - collection of tools on human rights Amnesty International http://www.amnesty.org - one of the main NGOs working on human rights Human Rights Watch: http://www.hrw.org - one of the main NGOs working on human rights
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5.
Main elements
In the event of an armed conflict, both IHL and IHRL apply in a complementary and mutually reinforcing manner. IHL builds and complements protections enshrined in human rights law. IHL will be applicable as the body of law for certain issues pertaining specifically to situations of armed conflicts. They both aim to protect human life and dignity, prohibit discrimination on various grounds, and protect against torture or other cruel, inhuman and degrading treatment. They both seek to guarantee safeguards for persons subject to criminal justice proceedings, and to ensure basic rights including those related to health, food and housing. They both include provisions for the protection of women and vulnerable groups, such as children and displaced persons. Human Rights Law protects the individual at all times; while IHL applies only in situations of armed conflict. In some cases, IHL will detail specific rules and their interpretation, and in other cases it will be IHRL, depending on which branch of law is more detailed and adapted to the situation. IHL specifically protects those who do not take a direct part in the fighting civilians, medical and religious military personnel- and those who no longer take a direct part in the fighting, such as wounded, shipwrecked, sick or detained fighters/combatants, such as prisoners of war. These categories of persons are entitled to respect for their lives and for their physical and mental integrity. IHL provides also for the respect of essential judicial guarantees and for a non-discriminatory treatment. IHL is the body of law that lays down detailed rules governing the treatment and conditions of deprivation of liberty of prisoners of war and the way in which civilians are to be treated when under the authority of an enemy power. This includes the provision of food, shelter and medical care, and the exchange of messages with their families. Those rules are essential to ensure an effective humanitarian action in time of conflict and HCs need to advocate for their respect.
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In order to achieve these aims, the following basic principles may be highlighted:
Principle of Distinction
The corner stone of the law on the conduct of hostilities is the principle of distinction. In order to protect those who are not participating in the hostilities, the parties to a conflict must at all times distinguish between the civilian population and combatants. Civilians may not be directly attacked. Attacks may also only be launched against military objectives, and not civilian locations or objects such as public buildings, school or hospitals. Whether an object constitutes a military objective can be difficult to determine. Particularly in the case of so-called dual-use objects, i.e. objects that can be used both for civilian and for military purposes, such as strategically located bridges or power stations.
Principle of Proportionality
The principle of proportionality seeks to strike a balance between two diverging interests, one dictated by considerations of military necessity and the other by the requirements of humanity. It prohibits attacks at legitimate military objectives which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
Precautions
Parties to a conflict must further take all feasible precautions in the choice of means and methods of warfare with a view to avoiding, and in any event minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects, in particular hospitals and humanitarian convoys, and may not launch an attack which may be expected to cause such incidental damage which would be excessive in relation to the military advantage anticipated.
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It is not always clear when separate incidents (such as assemblies, rallies, demonstrations, riots, isolated acts of armed violence) become related and, viewed together, are precursors to an armed conflict. What is clear, however, is that a pattern of this kind poses serious problems for the authorities in terms of maintaining public safety and law and order. Disturbances and tensions can eventually lead to situations that threaten the life of the nation and lead the government to proclaim a state of emergency (see IHRL). The line separating disturbances and tensions from a non-international armed conflict can sometimes be blurred and the only way to categorize specific situations is by examining each individual case. The levels of organization of the armed groups involved as well as the intensity of the armed violence are the key determining factors. This categorization has direct consequences for the armed forces and civil authorities as it does for the victims of the violence. It determines which rules apply and the protection they provide differs according to the legal qualification of the situation (armed conflict or other situation of violence) and the applicable legal framework (IHL and IHRL). According to the International Criminal Tribunal for the former Yugoslavia: "an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between such groups within a State. International humanitarian law applies from the initiation of such conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal armed conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there. In case of the military involvement of another State in a non-international armed conflict, the legal qualification of the situation will depend on whether the State supports the government or the nonState party to the conflict. In the latter case, the law applicable in international armed conflict will apply between the intervening foreign State and the government fighting the non-State actor. Only factual elements are taken into consideration to qualify adequately a situation. Political elements as well as official statements by parties to the conflict will have no effect both on the qualification and the applicability of the relevant norms of IHL. In both international and non-international armed conflicts, under the Geneva Conventions, the general rule is that IHL applies until the general close of military operations. There are, nevertheless, exceptions to this general rule. First, the obligation to repatriate persons protected under the Third (POWs) and Fourth (Civilians) Geneva Conventions is triggered by the cessation of active hostilities. Second, the obligations imposed upon occupying powers by the Civilians Convention extend beyond the general close of military operations. The clearest method of ending an armed conflict is by means of a peace treaty. This method of terminating conflicts, however, is increasingly rare--particularly given the sharp decline in formal declarations of war. Even in the absence of a peace treaty, there may be a complete cessation of hostilities; and the de facto resumption of normal peaceful relations between the parties. Nevertheless, active hostilities may cease in a variety of ways, some temporary and some permanent, including an armistice, a cease-fire, or a truce. The general applicability of IHL terminates if active hostilities cease and there is no probability of a resumption of hostilities in the near future.
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VII enforcement mechanisms of the Charter. The resolution making such a finding is binding on all UN Member States. A Security Council determination of the existence of a threat to the peace, breach of the peace or act of aggression is not the same as a finding of the existence of an armed conflict. However, it may be an indirect evidence of the existence of such a situation, for example if the resolution calls upon the parties to the conflict to respect the Geneva Conventions whose application, of course, presupposes the existence of an armed conflict. International and/or national courts may be required to make a determination of the existence of a conflict. This can occur ex post facto when they try individuals for alleged violations of international humanitarian law for war crimes to be committed it is necessary to have a war. The international criminal tribunals for the former Yugoslavia and for Rwanda have therefore developed important jurisprudence on the notion of armed conflict that provides useful guidelines when analyzing other situations. Of course, it is not only in relation to criminal matters that courts may have to determine whether a particular situation amounts to an armed conflict. The question may also arise in civil claims, for example to determine whether a war exemption clause in an insurance contract is applicable. Thirdly, the parties to the conflict themselves also make a determination of the situation in which they find themselves. This might be required constitutionally. For example parliamentary authorization may be required for going to war. Or it may take the form of a more discrete determination, for example, by the provision of "armed conflict" as opposed to "law enforcement" rules of engagement to the armed forces. Finally, the ICRC also and constantly makes a determination of whether a particular situation amounts to an armed conflict. This qualification of a situation is necessary both to determine whether international humanitarian law is applicable and for the ICRC to commence its traditional activities. In principle the ICRC does not pronounce itself publicly on its legal determination of an armed conflict given the sensitivity of many contexts, but may do so on rare ocassons. Determination remains, however, an essential part of an on-going confidential dialogue with the parties concerned on their obligations under international law. The ICRC qualifies every situation of violence in the world it works in or aspires to work in. Althought the determination is not legally binding, it reminds the parties of their legally binding obligations under IHL. For this purpose, once the ICRC has made the determination that a situation amounts to an armed conflict, it shares with the parties a memorandum of basic rules and principles of IHL to be respected, and offers, if not already done, its services with a view to protecting and assisting persons affected by armed conflict. For obvious reasons this can be an extremely sensitive issue, particularly in non-international armed conflicts, where there is a tendency by States to deny the application of international humanitarian law, who often claim the violence is terrorism or purely related to narco-trafficking, but not armed conflict.
Sources
International Humanitarian Law is part of international law, which is the body of rules governing relations between States. IHL is rooted in the rules of ancient civilizations and religions. Universal codification of IHL began in the nineteenth century. The bitter and dramatic experiences of the wars at the beginning of the twentieth century have led to major developments of IHL, for the sake of the protection of: Wounded, sick and shipwrecked soldiers; Prisoners of war; and The civilian population.
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A major part of IHL is contained in the four Geneva Conventions of 1949 and their two Additional Protocols of 1977. A third Additional Protocol was adopted in 2005 and provides for the possibility of using an additional distinctive emblem the red crystal. Many rules contained in these treaties are today considered to form customary international humanitarian law (see ICRC Customary International Law study below).
Jus Ad Bellum
Until the end of the First World War, resorting to armed force was regarded not as an illegal act but as an acceptable way of settling differences. The adoption of the United Nations Charter sought to outlaw war. The member of the Organization shall abstain, in their international relations, from resorting to the threat or the use of force ().
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The UN Charter foresees some exceptions where resorting to the use of force is accepted: The right to individual or collective self-defence, Art. 51 UN Charter: The UN Security Council, acting on the basis of the Chapter VII of the Charter, may also decide on the collective use of force as well as on the Chapter VI for a Pacific Settlements of Disputes; A further exception to the prohibition of use of force has been recognized within the framework of the right of peoples self-determination (Resolution 2105-1965).
Jus In Bello
IHL does not regulate the reason and legality of a conflict. IHL applies and must be respected by States Parties to the Geneva Conventions, armed groups and individuals, whatever the reasons and causes of the armed conflict are, and whether the latter is deemed lawful or not in accordance with the Charter of the United Nations. IHL is intended to protect war victims and their fundamental rights, no matter to which party they belong. The applicability of IHL is therefore independent from any questions related to jus ad bellum. It continues to be applicable as long as there is a situation of armed conflict. In situations of armed conflict, members of military units taking part in peace operations must respect IHL when they are actively engaged in armed confrontations against a party to the conflict. When they are not, they are, in principle, considered civilians entitled to protection under IHL. The applicability of IHL to forces conducting operations under UN command and control was reaffirmed in the Bulletin of the UN Secretary-General issued on August 6, 1999.
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reaffirmed in the 1977 Additional Protocol I, is applicable. It provides that in cases not covered by international agreements, civilians and combatants remain under the protection and authority of the principles on international law derived from established customs, from the principles of humanity and from the dictates of public conscience.
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elements of both international and domestic jurisdiction. These measures constitute a major step forward in efforts to prevent and punish serious violations of international humanitarian law.
Hot Issues
Recognizing when violence can be characterized as armed conflict can be controversial as many States do not want to recognize (for various motives) the existence of an internal armed conflict in their country. When provinces are splitting from an existing State and become recognized as emerging States, the issue of which law is applicable can be problematic (e.g. Bosnia as an non-international armed conflict transitioned to Bosnia versus Yugoslavia in an international armed conflict). Defining obligations of occupying powers, when the State occupying claims territory of their own, can be problematic. Determining the end of an occupation when a State has effective control over a neighbouring territory can also be challenging. The applicability of IHL may raise political considerations, i.e. about the formal recognition of a state of emergency or about the existence of armed groups on the national territory. The strength of IHL obligations and protections can be seriously challenged if States are able to act with impunity and crimes remain unpunished or there are no international sanctions (see also International Criminal Law).
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Frits Kalshoven, Liesbeth Zegveld: Constraints on the waging of war: an introduction to international humanitarian law, Geneva, ICRC, 2001, 3rd ed., 223 http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/p0793/$File/IC RC_002_0793.PDF!Open
International humanitarian law and the challenges of contemporary armed conflicts, ICRC, 2007, 65 http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5XRDCC/$Fi le/IHLcontemp_armedconflicts_FINAL_ANG.pdf The purpose of this ICRC Report is to present an overview of some current challenges to international humanitarian law (IHL), to generate reflection and debate on the issues identified and to outline prospective ICRC action in clarifying and developing the law in the times ahead. How is the term "Armed Conflict" defined in international humanitarian law?, International Committee of the Red Cross (ICRC) Opinion Paper, March 2008 http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/armedconflict-article-170308/$file/Opinion-paper-armed-conflict.pdf
Cordula Droege, The interplay between international humanitarian law and international human rights law in situations of armed conflict, 2007, http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/ihl-humanrights-article-011207/$File/interplay-article-droege.pdf
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Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/directparticipation-report_res/$File/direct-participation-guidance2009-icrc.pdf
1954 Convention on the Protection of Cultural Property in the Event of Armed Conflict and its Protocols http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/5LWJP5/$Fi le/Cultural_Property.pdf Study on Customary International Humanitarian Law: Summary http://www.icrc.org/web/eng/siteeng0.nsf/html/p0860?opendo cument
Websites:
International Committee of the Red Cross http://www.icrc.org The key website on IHL, with a huge amount of documents, including the International Review of the Red Cross Relief Web on IHL: http://www.reliefweb.int/rw/lib.nsf/doc207?OpenForm&query=3&cat=International%20Humanitari an%20Law - good list of resources on IHL International Criminal Court: http://www.icc-cpi.int The website of the International Criminal Court ICTY: http://www.un.org/icty - the Website of the International Criminal Tribunal for Ex-Yugoslavia ICTR: http://www.ictr.org - the Website of the International Criminal Tribunal for Rwanda IHL Research Initiative: http://www.ihlresearch.org
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Main elements Fundamental Principle and Basic Rules of the Law on the Conduct of Hostilities
The fundamental principle is that in any armed conflict, the right of the Parties to the conflict to choose methods and means of warfare is not unlimited. Two basic rules supplement this principle. The first prohibits the use of weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. The second prohibits methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.
Combatants
Under IHL, the term combatant refers to those persons who are allowed to take a direct part in the hostilities of an international armed conflict. During an armed conflict, only combatants are permitted to take a direct part in hostilities. This means that they are immune from prosecution for having killed during combat. They are, however, not immune from prosecution for suspected war crimes. Being a combatant also means being a legitimate military target, i.e. that they may be targeted at any time. In case of capture by the adverse party, combatants become prisoners of war and thus enjoy the protection as provided for by the Third Geneva Convention of 1949. In international armed conflict, members of the armed forces of a Party to the conflict are combatants. Members of armed groups which participate in hostilities without being entitled to do so are not considered combatants in the above sense and in case of capture do not enjoy the prisoner of war status. There is however no "legal blackhole" with regard to the categories of protected persons in armed conflict. A person is either a combatant or a civilian, and IHL provides for legal protection accordingly without leaving any gaps. If a person involved in hostilities does not qualify for combatant and therefore prisoner of war status, he/she is protected as a civilian (see below the instances when a civilian can exceptionally lose his protection against direct attack). To limit the risk of misunderstandings, it is recommendable to use the term "combatants" only in situations of international armed conflicts, but not in situation of non-international armed conflict. In
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non-international armed conflict, the combatant and thus prisoner of war status does not exist, which means that members of a non-State armed group fighting the armed forces of the State in question may be held criminally responsible for their mere participation in the hostilities.
Armed Forces
The armed forces consist of all organized armed forces, groups and units which: Are under a command responsible for the conduct of its subordinates to a party to the conflict; Are subject to an internal disciplinary system which enforces compliance with the law of armed conflict; and Members distinguish themselves from the civilian population. Combatants are all members of the armed forces of a party to the conflict except medical and religious personnel that accompany the armed forces. The latter may not take a direct part in hostilities and so long as they do not do so are legally protected from attack.
Civilians
Any person not belonging to the armed forces is considered as a civilian. The civilian population comprises all persons who are civilians. In case of doubt whether a person is a civilian, that person is presumed to be a civilian.
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The presence or movements of the civilian population or individual civilians must not be used to try to shield military objectives from attack or to shield, favour or impede military operations.
Hot Issues
The direct targeting of the civilian population amounts to a grave breach under IHL and must be prosecuted. The use by a party to the conflict of prohibited weapons may politically be extremely sensitive as it might be part of a political strategy and/or military tactic. Furthermore bringing objective evidence of such breaches may be difficult especially when war is raging.
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Aid
In order to ensure protection from the effects of war, the Fourth Convention guarantees notably the free passage of all consignments of medicine and medical equipment. It also permits the free passage of foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and women in labour. The Protocol I considerably extends the scope for undertaking relief operations. It provides that when the civilian population of a territory under the control of a Party to the conflict, other than an occupied territory, is not adequately provided for, relief actions of a humanitarian and impartial character must be undertaken, subject to the agreement of the Parties concerned in such relief action. These may consist of foodstuffs, medicines, clothing, bedding, means of shelter and other supplies essential to the survival of the civilian population. The personnel taking part in relief actions must be respected and protected.
Protection of Children
Children must be the object of special respect and must be protected against any form of indecent assault. They must receive the care and aid they require, whether because of their age or for any other reason. All practicable measures must be taken to prevent children from being recruited into the armed forces of a party to the conflict and/or being used in the hostilities.
Protection of Women
Women shall be the object of special respect and must be protected against any form of indecent assault. Pregnant women and mothers of dependent infants, who are arrested for reasons related to the armed conflict, shall have their cases considered in absolute priority and in the event of a death penalty being pronounced, it shall not be carried out.
Additional Guarantees
IHL provides also for the reunification of dispersed families and family news, as well as the protection of journalists.
Fundamental Guarantees
Persons who are in the power of a Party to the conflict shall be treated humanely in all circumstances and shall benefit from the fundamental guarantees without any discrimination based on any pretext whatsoever. Among the fundamental guarantees, it is specified that the person, the honour, the convictions and religious practices of all such persons must be respected.
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The following acts in particular are prohibited under any pretext whatever, whether committed by civil or military agents: Violence to the life, health and physical or mental well-being of persons, particularly murder; torture of all kinds, whether physical or mental; corporal punishment, and mutilation; Outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault; The taking of hostages; Collective punishments; Threats to commit any of the foregoing acts. Finally, the respect of essential judicial guarantees also form part of the fundamental guarantees accorded to all persons affected by an armed conflict.
Situation of Occupation
Aside from the general rules of protection of all persons affected by an armed conflict, IHL provides in the Fourth Geneva Convention for specific provisions for protection of the civilian population living in a situation of occupation. IHL provides for specific clauses regarding issues such as: Food: the Occupying Power has the duty of ensuring the food and medical supplies of the population. Hygiene and public health must be ensured and maintained by the Occupying Power with the cooperation of national and local authorities. Relief: the Occupying Power must permit necessary relief operations to aid the population and facilitate them by all means at its disposal, particularly by authorizing the charitable work of the Protecting Power, of a neutral State, of the ICRC or any other impartial humanitarian organization.
Hot Issues
Advocating for the inferred right to humanitarian assistance and eventually the right of access may encounter resistance of certain States. The issue may be highly politicised. In the case of occupation, IHL calls for important obligations for the Occupying Power. Many States may not wish to be seen as an occupying power, not to abide by the rules set in the Fourth Geneva Conventions. When a dispute over a territory arises and a State moves their own citizens in to a territory, they may dispute occupation, while others characterize the action as a de facto annexation.
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Main elements
Under IHL, the displacement of civilians should not occur in the first place, and if it does, their protection must be ensured. IHL expressly prohibits any party to an armed conflict from compelling civilians to leave their places of residence for reasons related to the conflict, or deport or forcibly transfer the civilian population of an occupied territory. Exceptionally, temporary evacuations may be carried out if the security of the civilians or imperative military reasons so demand. In addition to this express prohibition, the rules of IHL intended to spare civilians from hostilities and their effects also play an important role in preventing displacement, as it is often violations of these rules that cause civilians to flee their homes. While they are displaced, IDPs are entitled to the same protection from the effects of hostilities and the same relief as the rest of the civilian population. Moreover, all possible measures must be taken in order to ensure that the civilians concerned benefit from satisfactory conditions of shelter, hygiene, health, safety and nutrition and that members of the same family are not separated. Return is only expressly addressed by IHL in the context of forced displacement. In such cases, displaced persons must be allowed back to their homes as soon as reasons for displacement have ceased Occupying powers are specifically prohibited from implementing deportations. Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive. The only exception is military necessity and the security of the civilians involved , which must be balanced with protection of these groups. Should such displacements occur, populations should be returned as soon as possible to their homes when the crisis ceases. All possible measures should be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, safety and nutrition. Primary responsibility for protecting IDPs lies unequivocally with the State or other authorities in control of the territory where the IDPs find themselves. The return of those displaced very often presents a formidable challenge to the authorities and resident communities.
Hot Issues
Limited access by humanitarian organizations to those requiring assistance often the result of deliberate obstruction by parties to a conflict seriously hampers the implementation of the law and of aid work in general (see also Access below). These problems are related, for instance when the population is being displaced or forcibly relocated as part of a military strategy aimed at weakening the support base of the enemy. Where humanitarian workers provide assistance to the civilian victims of such strategies, they may in turn be perceived as promoting the goals of one of the parties, and as a result be specifically targeted by the other.
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6.
Refugee Law
Main elements
Armed conflict is commonly associated with violence and persecution which prompt people to flee their country of origin and seek asylum in other countries. Outside the context of conflict, people may also have to flee their country to avoid individual persecution. Refugee Law establishes specific entitlements to international protection, with corresponding obligations on the part of receiving States, for persons who cannot avail themselves of the protection of their country of origin (or their country of habitual residence for persons who do not have a nationality). Millions of people worldwide become refugees as a consequence of the indiscriminate general effects of armed conflict, and/or because they have been persecuted on grounds of race, religion, nationality, political opinions or their social characteristics.
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Definition of Refugee
The 1951 Refugee Convention defines a refugee as someone who has fled his/her country of nationality or habitual residence due to a well-founded fear of persecution for reasons of their race, religion, nationality, membership of a particular social group or political opinion and who, for such reasons, is unable or unwilling to return to his/her country. In the context of Africa and Latin America, the definition of refugees has been broadened, in order to include all persons who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order, are compelled to leave in order to seek refuge outside the country of origin or nationality. As a consequence, these definitions of refugees are much broader than the definition enshrined in the 1951 Convention. In June 2001, the African-Asia Legal Consultative Organization adopted the revised 1966 Bangkok Principles on the Status and Treatment of Refugees, which also provide for an extended refugee definition. State parties may decide to adopt a broader definition of refugees, for instance by granting asylum to persons who wouldnt be entitled to get refugee status under the 1951 Convention. However, a State party may not legally restrict the definition of refugees by adopting a narrower one than in the 1951 Convention. Generally, States undertake refugee status determination. However, when States are not party to the 1951 Convention or where no functioning national asylum procedure is in place to decide on applications for refugee status, UNHCR may undertake such determination under its mandate.
Non-refoulement
The principle of non-refoulement is the cornerstone of refugee law. Article 33 (1) of the 1951 Convention relating to the Status of Refugees reads, No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. The principle of non-refoulement is not unique to Refugee Law and can be found in various other instruments of international law, for example, the Fourth Geneva Convention of 1949 (Art. 45, para. 4), the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Article 3), the International Covenant on Civil and Political Rights (Article 7), the Declaration on the Protection of All Persons from Enforced Disappearance (Article 8), and the Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (Principle 5). In addition, it is included in a number of regional human rights instruments, including the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 3), the American Convention on Human Rights (Article 22), the OAU Refugee Convention (Article II), and the Cairo Declaration on the Protection of Refugees and Displaced Persons in the Arab World (Article 2). The prohibition against refoulement is considered part of customary international law. This means that even States not party to the Refugee Convention must respect the principle of non-refoulement. In some circumstances, persons facing possible refoulement who cannot rely on refugee protection may have recourse to relevant human rights mechanisms, such as the Committee against Torture (monitoring States parties application of the Convention against Torture).
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Cessation Clauses
A person is no longer a refugee entitled to international protection when he or she has regained national protection, either as a national of their country of origin or by acquiring a new nationality, or because the circumstances in their country of origin, which were the reason he or she was granted refugee status, have ceased to exist such that international protection is no longer required.
Durable Solutions
The United Nations High Commissioner for Refugees (UNHCR), in cooperation with States, facilitates the implementation of durable solutions for refugees in accordance with three options: voluntary repatriation to the country of origin, local integration in the country of asylum, resettlement in a third country. Such measures must be undertaken voluntarily, based on free and informed decisions by individual refugees vis--vis the available options.
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6.3 UNHCR
In the aftermath of World War II, the United Nations General Assembly created the Office of the United Nations High Commissioner for Refugees to lead and coordinate international action to safeguard the rights and well-being of refugees. UNHCRs Statute serves as its constitution through which the UN General Assembly sets forth the High Commissioners functions and responsibilities, including a definition of persons on whose behalf the High Commissioner can act, and calls on States to cooperate with UNHCR in this regard. UNHCRs mandate has been expanded in various UN General Assembly resolutions. UNHCR promotes the basic human rights of refugees and that they will not be returned involuntarily to the country where they face persecution. UNHCR promotes international refugee agreements, helps States establish asylum structures and acts as an international watchdog over refugee issues. Persons of concern to UNHCR are all persons for whom UNHCR has recognized protection and assistance responsibilities. They include: a) Refugees b) Asylum-seekers c) Returnees (i.e., former refugees) d) Stateless persons and persons at risk of becoming stateless e) Internally displaced persons (particularly in situations of conflict, generalized violence and human rights violations). UNHCRs authority to act on their behalf is based on its Statute, UN General Assembly resolutions, and the above-mentioned conventions. The IASC guidance on the Humanitarian Reform also provides a basis for UNHCRs enhanced responsibilities vis--vis IDPs.
Hot Issues
Policies of border closure to deliberately inhibit asylum-seekers when conflict breaks out in neighbouring countries. Neighbouring States denying asylum on the grounds that humanitarian agencies are providing assistance to IDPs in the country of origin of asylum seekers. Pressure on host communities when large numbers of refugees are present for long periods without being locally integrated. Inadequate burden-sharing by States. New patterns of international migration, including those related to climate change.
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Websites:
Protecting Refugees: A Field Guide for NGOs http://www.icva.ch/files/protectionfieldguide.pdf A practice-oriented manual for NGOs United Nations High Commissioner for Refugees http://www.unhcr.org/cgi-bin/texis/vtx/home The key website on refugees; see in particular RefWorld, the reference centre maintained by the UNHCR International Thesaurus of Refugee Terminology http://refugeethesaurus.org/hms/home.php?publiclogin=1 http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain On Statelessness http://www.unhcr.org/statelessness Handbook for the Protection of Women and Girls, UNHCR, 2008. http://www.unhcr.org/47cfa9fe2.html
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Forced Migration Online http://www.forcedmigration.org/ Comprehensive web site that provides access to a diverse range of relevant information resources on forced migration: digital library, archives of specialized journals, web links database, organisation contact database, photos. Managed by Oxford's Refugee Study Centre. Forced Migration Review http://www.fmreview.org/welcome.htm Practice-oriented forum for debate on issues facing refugees and internally displaced people. Produced by Oxford Refugee Studies Centre together with Norwegian Refugee Council. University of Michigan Law School http://www.refugeecaselaw.org/ Allows searching on case law related to refugees. Forced Migration Current Awareness Blog http://fm-cab.blogspot.com/ Refugee Studies Centre article collection http://www.reliefweb.int/library/RSC_Oxford/index.htm A collection of articles on refugee protection produced by the Oxford Refugee Studies Centre Human Rights Watch on Refugees http://hrw.org/doc/?t=refugees&document_limit=0,2 Refugees International http://www.refugeesinternational.org/content/issue/ ReliefWeb on Refugees http://www.reliefweb.int/rw/lib.nsf/doc207?OpenForm&query=3&cat=Refugees Basic facts on refugees and the UNHCR http://www.unhcr.org/basics/BASICS/4034b6a34.pdf UNHCR Handbook on Emergencies http://www.unhcr.org/publ/PUBL/3bb2fa26b.pdf International Journal of Refugee Law http://ijrl.oxfordjournals.org/
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7.
Main elements
IDPs are people forced to flee or to leave their homes to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters. But, unlike refugees, they remain within their country's borders. By the end of 2008, 26 million people remained displaced by conflict and 36 millions more are estimated to have been displaced by disasters.5 Providing protection and assistance to them and ending their displacement, and their suffering, are key goals of national and international actors alike. Securing durable solutions for these people is also fundamental to ensuring long-term recovery and stability in post-emergency countries whether in conflict or natural disaster contexts. Governments have the primary responsibility to provide assistance and protection to IDPs and to establish conditions for durable solutions. However, ensuring IDPs receive adequate protection and are able to make an informed and voluntary choice of the most suitable solution for their own situation is a challenge that all IDP-hosting countries face. The international community complements and, if necessary, substitutes the governments response. As no single agency is responsible for protection and assistance of IDPs, many national and international non-governmental organizations respond to the needs of IDPs. The cluster approach, adopted in 2005, seeks to improve the coordination and the effectiveness of the humanitarian response and, by doing so, to better meet the needs of IDPs. UNHCR has assumed a leadership role in the protection of IDPs from conflict situations and more recently have noted their intention to assume a lead in natural disasters with the agreement of national authorities, where their capacity permits, and in agreement with UNICEF and OHCHR. The HC has the overall responsibility for the coordination of the humanitarian actors and the appropriateness of the humanitarian response. The HC plays an important role to both assist the State to fulfil its obligations to protect IDPs, while at the same time strengthening coordination of humanitarian actors. Response can be enhanced by the HC through broad participation by all stakeholders (civil society, natural human rights institutions, IDPs, etc).
Figures on internal displacement as a result of conflict see IDMC http://www.internaldisplacement.org/idmc/website/resources.nsf/(httpPublications)/0605361027488A28C12575A90042305B?OpenDocum ent Figures on natural disaster induced displacement, see OCHA/IDMC Study http://www.internaldisplacement.org/idmc/website/resources.nsf/(httpPublications)/451D224B41C04246C12576390031FF63?OpenDocum ent
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Soft-law Instrument
The GPs are not legally binding. However, they reflect and are consistent with international human rights law and international humanitarian law which are binding on states (and in the latter case, on non-State actors). The GPs have become widely accepted at international, regional and national levels. Heads of State and of Governments unanimously recognized them as an important international framework for the protection of IDPs in the World Summit 2005 (A/RES/60/1), a recognition subsequently echoed by the General Assembly and the Human Rights Council. The Organization of American States and the Committee of Ministers of the Council of Europe called for their implementation at national level. An increasing number of States have incorporated them into national legal and policy frameworks. Humanitarian Coordinators should promote the incorporation of the GP into national legislation as well as policies, strategies and action plans. The HC can draw on domestic or regional legislation to advocate for appropriate treatment of and protection for IDPs and reinforce respect for their rights. The HC should advocate to all parties to respect IHL, HR and the Guiding Principles.
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The Inter-Agency Standing Committee (IASC) has adopted a framework on durable solutions for internally displaced persons in 2009, which sets out the process and conditions for achieving durable solutions.
The Representative of the United Nations Secretary-General on the Human Rights of Internally Displaced Persons
The Representative of the United Nations Secretary-General on the Human Rights of Internally Displaced Persons (RSG) plays an important role in promoting respect for the rights of IDPs. The RSG is mandated by the Human Rights Council to engage in advocacy in favour of the protection and respect of human rights of IDPs, to continue and enhance the dialogue with States and other actors concerning the rights of IDPs, to strengthen the international response to internal displacement, and to mainstream the human rights of IDPs throughout the UN system. In his country-specific engagements, the RSG closely engages with the HC in order to jointly analyse the displacement situation in a country and to coordinate advocacy activities with the government.
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Hot Issues
The lack of a specific legal treaty covering IDPs requires greater work highlighting the rights of IDPs and the obligations of States. The GPs are the normative framework for the protection of IDPs and the key advocacy tool vis a vis governments. The rights of IDPs can also be confused when humanitarian action is occurring in proximity with refugees who are protected by a specific legal instrument(s) (see Refugees). The phase immediately following displacement is when IDPs are particularly vulnerable and when there is a prevalence of sexual violence, increased risks of separation of families and the appearance of numerous cases of separated/non-accompanied children with specific risks facing children under such circumstances. It is also often the time when structures and means to monitor and report are the weakest. There is a risk that displacement may be used as a method of warfare. A population may be forcibly displaced as part of a military strategy aimed at weakening the support base of the enemy. Where humanitarian actors provide assistance to the civilians affected by such strategies, they may be perceived as promoting the goals of one of the parties to conflict and, thus, affect perceptions of their neutrality and impartiality. Engagement with governments to promote the protection of IDPs and to find durable solutions for them, which comply with international standards can be challenging. Protracted displacement can lead to severely increased vulnerabilities amongst IDPs, and create a major burden on local and national authorities, which in turn, may undermine efforts aimed at national peace and stability in a country. Cooperation with multiple organisations and coping with the increased global attention among NGOs and other humanitarian organisations to consider protection of IDPs may constitute a real challenge for HCs. Cooperation between humanitarian and development actors in the early recovery phase, which is essential for successful return or another type of durable solution is very challenging.
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Guiding Principles on Internal Displacement Annotations by Walter Klin revised edition Studies in Transnational Legal Policy, N 38 published by The American Society of International Law and the Brookings Institution University of Bern Project on Internal Displacement, 2008 http://www.brookings.edu/reports/2008/spring_guiding_principles. aspx The IDP Protection Handbook http://www.humanitarianreform.org/Default.aspx?tabid=294
Protecting Internally Displaced Persons: A Manual for Law and Policymakers The Brookings-Bern Project on Internal Displacement, 2008. http://www.brookings.edu/papers/2008/1016_internal_displacemen t.aspx
When Displacement Ends - A Framework for Durable Solutions The Brookings-Bern Project on Internal Displacement & Georgetown University's Institute for the Study of International Migration, 2007. http://www.brookings.edu/reports/2007/09displacementends.aspx
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Addressing Internal Displacement: A Framework for National Responsibility. The Brookings-Bern Project on Internal Displacement, 2005. http://www.brookings.edu/projects/idp/20050401_nrframework.as px
Reference Guide: Normative Developments on the coordination of humanitarian assistance in the General Assembly, the Economic and Social Council, and the Security Council since the adoption of General Assembly resolution 46/182, OCHA 2009 http://ochaonline.un.org/humanitarianresolutions This guide provides a compilation of relevant General Assembly, Economic and Social Council and Security Council language on the issue of internal displacement and is a useful tool for HC interaction with concerned governments and other relevant parties on this issue.
Websites:
Office of the Representative of the UN Secretary-General on the Human Rights of IDPs http://www2.ohchr.org/english/issues/idp/standards.htm Office for the Coordination of Humanitarian Affairs http://ochaonline.un.org/News/InFocus/InternallyDisplacedPeopleIDPs/tabid/5132/language/enUS/Default.aspx UNHCR on IDPs http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?page=idps Aaccess through RefWorld to UNHCR resources on IDPs. The Brookings-Bern Project on Internal Displacement http://www.brookings.edu/projects/idp.aspx Internal Displacement Monitoring Centre (IDMC), Norwegian Refugee Council http://www.internal-displacement.org/ Forced Migration Online http://www.forcedmigration.org/ Global Protection Cluster WG www.humanitarianreform.org/protection
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8.
Main elements
People do not lose their human rights as a result of a natural disaster or their displacement. All persons affected by natural disasters, including those who are displaced, are entitled to the protection of all relevant human rights guarantees. Human rights are the legal underpinning of humanitarian work in the context of natural disasters. A rights-based approach to emergency relief helps to ensure that the principle of non-discrimination is applied in all phases of the disaster response. In order to provide guidance on how to protect the rights of individuals affected by natural disasters, the Inter-Agency Standing Committee (IASC) adopted Operational Guidelines on Human Rights and Natural Disasters. They are intended to ensure that disaster relief and reconstruction efforts are conducted within a framework that protects and furthers human rights.
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Hot Issues
States may be unwilling to indicate their ability to protect the rights and needs of affected populations. The right of access remains contested (see Access). In situations of natural disasters human rights violations may not be intended or planned. Yet there are major protection concerns as a result of systemic failure, negligence, oversight or indifference. Pre-existing patterns of discrimination and other human rights problems are exacerbated in situations of natural disasters. Governments might be reluctant to discuss human rights in these contexts.
Human Rights and Natural Disasters, Operational Guidelines and Field Manual on Human Rights Protection in Situations of Natural Disaster, Brookings-Bern Project on Internal Displacement. http://www.brookings.edu/projects/idp/2006_naturaldisasters .aspx
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9.
War Crimes
War crimes are acts prohibited in either international or internal armed conflict for which a person may be held individually criminally responsible. The term includes both "grave breaches" of the Geneva Conventions of 1949 and of Protocol I of 1977 and other serious violations of the laws and customs of war, committed in either international or non-international armed conflict. Under the ICC Statute, war crimes in internal armed conflict include: Murder, mutilation, cruel treatment and torture; Taking of hostages; Denial of fair trial rights; Intentionally directing attacks against the civilian population or against individual civilians not taking a direct part in the hostilities; Pillaging a town or place; Committing rape and other acts of sexual violence; and Ordering the displacement of the civilian population unless their security or imperative military reasons so demand, etc.
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Genocide
Under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: Killing members of the group; Causing serious bodily or mental harm to members of the group; Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; Imposing measures intended to prevent births within the group; and Forcibly transferring children of the group to another group. This convention bans acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group. It declares genocide a crime under international law whether committed during war or peacetime, and binds all signatories of the convention to take measures to prevent and punish any acts of genocide committed within their jurisdiction. It declares genocide itself, conspiracy or incitement to commit genocide, attempts to commit or complicity in the commission of genocide all to be illegal. Individuals are to be held responsible for these acts whether they were acting in their official capacities or as private individuals. The same factual situation giving rise to accusations of war crimes and crimes against humanity may also give rise to a claim that genocide has been perpetrated; the main difference is that acts constituting genocide are those committed with a specific intent to destroy members of a particular group. Such intent is usually hard to prove, which is why genocide charges are usually harder to bring than charges for other crimes under international law.
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The ICC includes the following war crimes both in international and non-international armed conflict: Rape, sexual slavery, enforced prostitution, forced pregnancyenforced sterilization, or any other form of sexual violence also constituting either a grave breach or a violation of Common Article 3 of the Geneva Conventions. These crimes may, in come cases, constitute an element of genocide. Rape and other forms of sexual violence are also recognized as crimes in the statutes of the ICTR and ICTY as well as the Special Court for Sierra Leone and the Cambodia Tribunal. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity. The crime is defined as the same as a war crime, with the addition that the conduct was committed as part of a widespread or systematic attack directed against a civilian population whether committed during war or peace. Gender is also relevant in two further crimes against humanity, if committed as part of a widespread or systematic attack directed against a civilian population: Persecution, where gender is one of the grounds upon which the identified group or collectivity is selected; and Enslavement, which is defined as the exercise of power attaching the right of ownership over a person, including in the course of trafficking persons, in particular women and children.
(ii)
(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (iv) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury;
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(v)
Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;
(vi)
(vii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (viii) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions; and (ix) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.
Other serious violations of the laws and customs applicable in armed conflicts not of an international character, including: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;
(ii)
(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; Conscripting or enlisting children under the age of fifteen years into armed forces or groups, or using them to participate actively in hostilities; and Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand.
(v)
(vi)
Hot Issues
Although clear definitions of international crimes exist, determining whether particular acts constitute such crimes is not always easy. The definition of aggression is not yet agreed between States, because of political differences of views amongst States on what is an aggression (formerly called crime against peace).
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Main elements
Holding individuals accountable for crimes under international law is primarily the duty of States. States are obliged under international law to take legislative and other measures that would enable them to domestically bring to justice persons suspected of crimes under international law. This includes the right to exercise universal jurisdiction over genocide, war crimes, crimes against humanity, torture and enforced disappearances - meaning that a State can prosecute and try the perpetrator of these acts even if he or she is not a national and the crime was not committed in its territory. In addition to the national implementation mechanisms, the primary aim of which is to ensure State compliance with international law obligations, there are also international judicial mechanisms for holding individuals accountable for violations that constitute crimes under international law when States are unable or unwilling to do so. In 1993 and 1994, the UN Security Council established ad hoc international criminal tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). The tribunals are authorized to prosecute and try persons suspected of having committed crimes under international law in the conflicts that had taken place in those two conflicts. All States are obliged to cooperate with the Tribunals in the performance of their mandate, including by arresting and surrendering suspects who might be found in their territory. Other State-based criminal tribunals have also been established in Sierra Leone and in Cambodia.
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Hot Issues
Exercise of ICC jurisdiction in contexts where the authority of the court is not acknowledged, or where States do not recognize the authority of the Security Council to recommend prosecution by the ICC, is controversial. Perceived support for or involvement of humanitarian personnel in the investigations, arrests or prosecutions may be viewed by affected States as improper interference in their domestic affairs and, therefore, has implications for the perceived neutrality and the acceptance of humanitarian action. Controversy continues regarding a perceived trade-off between establishing conditions for peace and the pursuit of justice for crimes committed in the context of armed conflict whereby those participating in conflict will not be willing to negotiate for peace as long as they believe they may be prosecuted for crimes.
Websites:
Negotiated Relationship between the International Criminal Court and the United Nations, entry into force on 4 October 2004. http://www.iccnow.org/documents/ICC-ASP-3-Res1_English.pdf
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10. Protection
10.1 Protection in Practice
Why is it important for my work as HC
Protection underlies all aspects of humanitarian action. HCs need to understand key legal instruments and principles which underpin concepts of protection and their critical role in coordinating responses and ensuring advocacy and negotiation to protect affected populations.
Why is it Important?
The incorporation of safety, security, dignity and integrity concerns into humanitarian actions is driven by convictions that 1) human dignity and integrity are inherent to all human beings by reason of law; 2) protection-blind humanitarian action can put affected individuals and groups at greater risk; and 3) it ensures greater and longer lasting humanitarian results.
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Protection concerns include: denial of access and exclusion to humanitarian assistance, to water, to food, to shelter and to economic opportunities and education; arbitrary killings and disappearances; sexual and other forms of gender-based violence including rape; forced evictions and displacement; torture and mutilations; separation of families; forced conscription of children into armed conflict; and forced prostitution and labour. While safety and security concerns increase for all affected groups during emergency scenarios, the following may be at greater risk: extremely poor people; women (pregnant women, mothers, single mothers, widows, and in some cultures unmarried adult women and teenage girls); young men; children (newborn to 18); refugees; internally displaced persons; stateless persons; national minorities; indigenous peoples; migrant workers; disabled persons; older persons (especially when they have lost care-givers); HIV positive persons and AIDS victims.
Who is Responsible?
While people are always key actors in their own protection, international law dictates that protection is first and foremost the duty of the State. When States are unable or unwilling to assume this responsibility, however, humanitarian organizations have a vital role to play. Mandated agencies, charged with specific protection responsibilities, are the International Committee of the Red Cross (ICRC) working on behalf of civilians in times of conflict; the United Nations High Commissioner for Refugees (UNHCR) aiding refugees; the United Nations Childrens Fund (UNICEF) supporting children; and the United Nations Office of the High Commissioner for Human Rights (OHCHR) integrating human rights across the United Nations. Non-mandated actors, other UN and non-governmental organizations with general humanitarian response mandates, also play an active role in protection, developing and implementing both specialized protection and UN support expertise. Ensuring that humanitarian actors do not overstep their role is important and humanitarian efforts need to be framed around the following modes of action: substitution, which means engaging in direct provision of services only when the State is incapable or unwilling to assume its responsibilities, and should only take place for limited and specific periods of time; capacity building, which means working to support and strengthen existing institutional and community structures to help accountable parties assume their responsibilities; persuasion, which means working with the accountable parties to convince them to assume their responsibilities; mobilization, which means sharing information in a discreet way with selected people, bodies or States that have the capacity to influence the authorities to satisfy their obligations, and denunciation, which means engaging in public disclosure to advocate for responsible parties to assume their role.
Protection Actions
In general terms, protection actions are divided into two groups: 1) stand-alone or specialist activities that have protection as their primary or sole objective; and 2) mainstreamed or integrated activities that incorporate protection principles into sectoral programming. Actions identified in this guidance deal with the latter. In general terms, protection activities are pragmatic and programmatic actions that expand the focus from immediate needs to the inclusion of questions of safety and security in humanitarian action. These include responsive actions, which seek to prevent or halt a specific pattern of abuse or alleviate its immediate effects, i.e. immediate care such as health and nutrition; remedial actions, which take place after abuse and aims to restore a persons dignity and ensure adequate living condition through reparations, restitution and rehabilitation, i.e. education, access to livelihoods, and psychosocial care; and environment building actions which aim to foster an environment conducive to respecting the rights of individuals, i.e. legislative reform and social sector strengthening. These actions are interdependent and in most cases are carried out simultaneously.
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Participation
Humanitarian action is about working directly with affected States, institutions, groups and individuals to identify existing structures, frameworks, positive coping mechanisms, felt needs, threats and gaps, and about jointly developing responses using all existing capacities to overcome the problems. Affected States, institutions, individuals and groups should not only be informed but incorporated into decision making processes. Meaningful participation is an important means of fostering an independent capacity and supporting the dignity of those at risk.
Non Discrimination
Humanitarian assistance is given on the basis of need alone, regardless of nationality, ethnic origin, religion, class, political opinion, age, gender or on any other ground. A holistic needs analysis should therefore accompany any action to ensure non-discrimination in favor or against any one special group. It is also the collective responsibility of all actors engaged in humanitarian assistance work to ensure that no one group is overlooked. When urgent needs exceed capacity, triage prioritization must be non-discriminatory and must balance resources with existing needs.
Capacity Building
States are the primary responsible actors for ensuring the protection of populations and individuals in their territory. As such, any activity that humanitarians engage in from substitution to denunciation has to have the intent of building capacity of the responsible actors and its parts to assume the responsibility awarded to them by law.
Do No Harm
Actions, as well as inaction, can have unintended negative consequences. Therefore, humanitarian actors need to ensure that the manner in which their assistance is administered and delivered does not increase a groups or persons safety and security risks. Humanitarian actors need to be keenly aware that power struggles may arise over humanitarian resources both within the affected population and with neighboring groups. Before taking any action, humanitarian actors must anticipate the consequences and assess potential risk factors and take measures to eliminate or mitigate such risks.
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How relevant actions to enhance protection are undertaken is also important. While protection is often assumed to involve confrontation with the responsible authorities, in fact, there are numerous modes of action which may - and must - be employed, based on analysis and strategic choices about effectiveness in different situations. Different actors may also have preferred modes of action. A variety of modes of action by different actors may ultimately result in the most effective and strategic combination of interventions.
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Hot Issues
Some areas of confusion, differences in approach, and even disagreement about protection in practice, remain between humanitarian actors and traditional human rights agencies. This is exacerbated by a lack of common or standard analytical frameworks and tools to support efforts to identify risks and possible solutions to address the threats that people face and their vulnerabilities in conflict and disaster situations. The work of human rights organisations and humanitarian actors can be contested. While many acknowledge the fundamental underpinning of human rights provides for humanitarian action, some humanitarian workers feel that the roles of humanitarian agencies and human rights organisations have come to duplicate or overlap with one another. The challenge for the Protection Cluster Coordinator and of the HC is to ensure that all protection actors can operate to the maximum of their ability in a complementary fashion.
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Making Protection a priority: Integrating Protection and Humanitarian Assistance, Interaction, 2004 http://www.interaction.org/files.cgi/2835_Protection_priority.pdf Presenting the concept of protection as a collective responsibility while recognizing the mandates of the ICRC and UNHCR, this paper highlights ways for agencies to bring their diverse mandates, areas of geographic coverage, sources of influence and tools, to bear on protection issues and contribute to more comprehensive protection. Protection Manual for Human Rights Defenders, Peace Brigades International (PBI), 2005 http://reliefweb.int/rw/lib.nsf/db900sid/OCHA-6TJKLN/$file/PBIDec2005.pdf?openelement The purpose of this manual is to provide human rights defenders with additional knowledge and some tools that may be useful for improving their understanding of security and protection. The link established with security is an interesting aspect of this book. Protection in Practice: Field-Level Strategies for Protecting Civilians from Deliberate Harm, ODI, 1999 http://reliefweb.int/rw/lib.nsf/db900sid/LGEL-5EXB8V/$file/odiprotection-jul99.pdf?openelement Although dated from 1999, this document still includes some interesting aspects of protection, as its aim is to be as practical as possible.
Captier, Christian, "What Does Humanitarian Protection Really Mean?" Humanitarian Exchange, 2003. http://www.odihpn.org/report.asp?ID=2511 This article examines the challenges that the concept of protection poses to humanitarian agencies, especially through the limits of humanitarian protection. The author distinguishes between protection and humanitarian protection arguing that humanitarian organizations have the responsibility to compel others to protect, rather than provide protection themselves. Minimum Agency Standards for Incorporating Protection into Humanitarian Response, 2008 (Field testing version), Caritas, CARE, Oxfam and World Vision http://www.acfid.asn.au/what-we-do/docs_what-wedo/docs_humanitarian-andemergencies/Minimum%20Agency%20Standards%20for%20Incorpo rating%20Protection%20into%20Humanitarian%20Response%20Jul y%202008.pdf This publication, still a Field Testing Version, aims at defining standards for incorporating protection into humanitarian response.
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Professional standards for protection work carried out by humanitarian and human rights actors in armed conflict and other situations of violence, ICRC http://www.ikrk.org/Web/Eng/siteeng0.nsf/htmlall/p0999/$File/IC RC_002_0999.PDF
S/PRST/2009/1, Aide Memoire for the Consideration of Issues Pertaining to the Protection of Civilians, 14 January 2009. http://www.securitycouncilreport.org/atf/cf/{65BFCF9B-6D274E9C-8CD3-CF6E4FF96FF9}/Civilians%20SPRST20091.pdf Aide Memoire for the Consideration of Issues Pertaining to the Protection of Civilians, OCHA, 2009 [to be published in booklet format by OCHA on 19 June 2009) 2004 Version http://www.reliefweb.int/rw/lib.nsf/db900sid/LHON64UHY7/$file/OCHA_Aide_memoire_2004.pdf?openelement Liam Mahony, Protective Presence, Field strategies for protecting civilians, Centre for Humanitarian Dialogue, 2006 http://www.hdcentre.org/files/Proactive Presence.pdf
Framework for Durable Solutions for Refugees and Persons of Concern http://www.unhcr.org/3f1408764.pdf
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Protecting Internally Displaced Persons: A Manual for Law and Policy Makers http://www.brookings.edu/~/media/Files/rc/papers/2008/101 6_internal_displacement/10_internal_displacement_manual.pdf
Websites:
ReliefWeb http://www.reliefweb.int/rw/lib.nsf/doc207?OpenForm&query=3&cat=Protection An extensive list of resources, covering not only protection in general, but also protection of specific groups (children, IDPs). Global Protection Cluster Working Group http://www.humanitarianreform.org/humanitarianreform/Default.aspx?tabid=79 ICVA. http://www.icva.ch/doc00000941.html This contains a list of resources on protection, however most are accessible to ICVA members only. ProCap Online http://ocha.unog.ch/ProCapOnline/ Aims to facilitate the process of seconding of standby partner personnel to protection-mandated UN agencies while these agencies increase their operational capacity through normal staffing and recruitment processes. It also functions as a means for the ProCap Support Unit to gather and convey information amounting to an overview of the strategic and operational protection capacity of the UN system.
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situations in which sexual violence is being widely or systematically employed against civilians and on strategies for ending the practice. The Resolution commits the Security Council to consider appropriate steps to end such atrocities and to punish their perpetrators and, perhaps most importantly, to commit States in which sexual violence is being widely or systematically employed against civilians to report in June each year to the Security Council. Key elements of the Resolution include the following: Specific training of troops on the categorical prohibition of sexual violence; Development of mechanisms for protecting women and girls in and around UN-managed camps; A welcome for the coordination efforts of UN Action Against Sexual Violence in Conflict; Scope for addressing root causes of sexual violence including debunking myths that fuel sexual violence; and Calls on peacemaking efforts, and UN-appointed mediation teams in particular, to address sexual violence in conflict-resolution processes. On 30 September 2009, the UN Security Council unanimously adopted Resolution 1888 (SCR 1888) that aims to further strengthen the efforts of the international community to combat sexual violence in armed conflict. The resolution, co-sponsored by more than 60 UN Member States, calls on the UN Secretary-General to appoint a Special Representative to intensify efforts to end sexual violence against women and children in conflict situations and who should engage on a high level with military and civilian leaders. SCR 1889 focuses on womens participation and urges Member States, UN bodies, donors and civil society to ensure that womens protection and empowerment is taken into account during postconflict needs assessment and planning, and factored into subsequent funding and programming. The resolution also calls on all those involved in the planning for disarmament, demobilization and integration programs, in particular, to take into account the needs of women and girls associated with armed groups, as well as the needs of their children. Through the text, the Council also requests the Secretary-General to submit a report within 12 months focused on women in post-conflict situations, and to ensure cooperation between the Special Representative of the Secretary-General on Children and Armed Conflict and the Special Representative on sexual violence in armed conflict, whose appointment had been requested by SCR 1888.
Secretary-Generals Bulletin on Special Measures for Protection from Sexual Exploitation and Sexual Abuse
Sexual exploitation is defined as any actual or attempted abuse of a position of vulnerability, differential power, or trust, for sexual purposes, including, but not limited to, profiting monetarily, socially or politically from the sexual exploitation of another. Similarly, the term sexual abuse means the actual or threatened physical intrusion of a sexual nature, whether by force or under unequal or coercive conditions. Responding to allegations of sexual exploitation and abuse by UN humanitarian personnel and peacekeepers, in 2003 the UN Secretary-General issued a bulletin on special measures for protection from sexual exploitation and abuse (ST/SGB/2003/13). It contains definitions of such acts, classifies them as serious misconduct for all UN staff, including UN agencies, and stresses that these rules should be incorporated into contracts with entities and individuals working in cooperative arrangements with the UN. In May 2005, the Council held its first ever open briefing on this matter and received information from H.R.H. Prince Zeid Ra'ad Zeid Al Hussein and the Under Secretary-General for Peacekeeping
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Operations, Jean-Marie Guhenno. It issued a presidential statement in which it condemned, in the strongest terms, all acts of sexual abuse and exploitation committed by peacekeepers and stressed the need to ensure proper investigation and accountability. Resident and Humanitarian Coordinators and Representatives of the Secretary-General are in the best positions to ensure that the bulletin is implemented coherently at the field level. According to the RC Generic Job Description, the RC is responsible for ensuring the establishment and functioning of an incountry network on protection from sexual exploitation and abuse to implement the SecretaryGenerals Bulletin. The Job Description also asserts that it is the RCs role to ensure that the network is supporting the development and implementation of a country-level action plan to address sexual exploitation and abuse. This action plan should include the establishment of mechanisms to assist victims of sexual exploitation and abuse, in order to implement UN General Assembly 62/214. While the RC can seek UN Country Team endorsement of the plan and monitoring of its implementation, the HC can seek endorsement by the Humanitarian Country Team as well as encourage active participation in these Networks by the humanitarian community and integration of PSEA activities in the work of the clusters.
Statement of Commitment on Eliminating Sexual Exploitation and Abuse by UN and Non-UN Personnel
While the Secretary-Generals Bulletin on Sexual Exploitation and Abuse applies primarily to UN agencies, some eighty NGOs, UN agencies and other international organizations have also committed themselves to address the issue by signing onto the Statement of Commitment on Eliminating Sexual Exploitation and Abuse by UN and non-UN Personnel. The Statement of Commitment identifies a number of measures that signatories are to take. It also recalls the Inter-Agency Standing Committees Six Core Principles Relating to Sexual Exploitation and Abuse, which classify these acts by humanitarian workers as gross misconduct and grounds for dismissal and requires humanitarian workers to report incidents.
Monitoring and Reporting Mechanisms (MRM) for Grave Violations against Childrens Rights
Background
The Security Council has determined that the issue of children and armed conflict is a concern for international peace and security and, as a result, it is the thematic issue with which the Council is more engaged than any other matter. Since 1999, the Council adopted six resolutions pertaining to children and armed conflict. In 2005, in an unprecedented decision, the Security Council established, through Resolution 1612 a framework for enhancing the protection of children affected by armed conflict by mandating the UN system to establish a Monitoring and Reporting Mechanism (MRM). The key objectives of the MRM are to: a) Monitor grave violations against children in armed conflict; b) Report these to the Security Council Working Group on children and armed conflict established under the Resolution; and c) Respond to the grave violations against children. The MRM provides a concrete framework to reduce the occurrence of grave violations against children leading to the prevention of further grave violations; ensuring appropriate response such as a political, advocacy and programmatic response. The framework also emphasizes the accountability of perpetrators, both government and non-State armed groups, through regular scrutiny at the highest levels.
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There are six grave violations being monitored, reported and responded to: Killing or maiming of children; Recruiting or using children by armed forces or armed groups; Attacks against schools or hospitals; Rape and other grave sexual violence against children; Abduction of children; and Denial of humanitarian access for children. The MRM was originally established in seven countries in 2006 following the adoption of Security Council Resolution 1612 in 2005. In 2009, fourteen countries were covered by part of this mechanism. New countries can be covered by this mechanism if it is determined that an armed group or force within that country has recruited or used children and that party is reported in the Secretary-Generals annual report on Children and Armed Conflict, which includes an Annex that lists parties to conflict who recruit or use children. In MRM terminology the party becomes listed in the SecretaryGenerals report.
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Hot Issues
The HC needs to take utmost care not to ensure that beneficiaries/affected populations are not put at risk by reporting. The HC needs to take utmost care not to put staff in danger because of the monitoring and reporting on Security Council Resolutions on Women, Peace and Security and MRMs. Managing information related to grave violations of rights is a complex undertaking, and the data that becomes available is extremely useful for evidence-based advocacy, but normally highly contested by the parties to the conflict. The question of dealing with non-State actors is also complex in many situations as governments do not like to lend legitimacy to such groups. However, the point needs to be made that the UN engages with such groups for humanitarian purposes only, and such engagement does not lend itself to any type of recognition. Security issues are also a major concern in relation to the Security Council resolutions mentioned above as staff will engage in this monitoring exercise and armed groups and forces start to understand that this information ends up in public reports, which at the end of the day will make the commanders of such groups accountable. Security Council resolutions are complex instruments for addressing accountability. It is sensitive for governments to be listed in the Secretary-Generals global annual report, and there is normally a great deal of discussion around this at the time of listing, or when the country annual report is developed.
Reporting and Interpreting Data on Sexual Violence from Conflict-Affected Countries: Dos and Donts (UN Action guidance note) http://www.stoprapenow.org/pdf/UN%20ACTION_Dos%20and%2 0Don'ts.pdf IASC Guidelines for Gender-based Violence Interventions in Humanitarian Settings http://www.humanitarianreform.org/humanitarianreform/Portals /1/cluster%20approach%20page/clusters%20pages/Gender/tfgen der_GBVGuidelines2005.pdf
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Guidelines on the MRM forthcoming. 2009 Report of the Secretary-General on Children and Armed Conflict, A/63/785-S/2009/158, 26 March 2009. http://www.un.org/children/conflict/english/reports.html
Key websites:
UN Action against Sexual Violence in Conflict http://www.stoprapenow.org/ IASC Sub-Working Group on Gender and Humanitarian Action http://www.humanitarianinfo.org/iasc/pageloader.aspx?page=content-subsidi-tf_genderdefault&mainbodyid=&publish= Inter-agency Working Group on Reproductive Health in Crises (IAWG) http://www.iawg.net/ WHO, Women's health http://www.who.int/hac/techguidance/pht/womenshealth/en/index.html Links to key documents and websites. Reproductive Health Response in Conflict (RHRC) Consortium http://www.rhrc.org/ Sexual Violence Research Initiative http://www.svri.org/ The Reproductive Health Access, Information and Services in Emergencies (RAISE) Initiative http://www.raiseinitiative.org/home/ Key resources on women peace and security and on the MRM, including the UNSC resolutions http://www.womenwarpeace.org/ Sexual violence data reporting - UN Action dos and don'ts http://www.stoprapenow.org/pdf/UN%20ACTION_Dos%20and%20Don'ts.pdf
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Main elements
The Outcome Document of the World Summit, outlines the following regarding R2P: 138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means... The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability. 139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out. The UN Secretary-General has appointed a Special Advisor on R2P who is working to further develop and operationalize the R2P concept and to elaborate its implications for the UN. The Special Advisor prepared a Secretary-Generals report on R2P which was submitted to the General Assembly in January 2009. The report emphasizes that R2P should be understood within the context of paragraphs 138 and 139 of the Outcome Document. It thus refers to three pillars: (a) the principal responsibility of States to protect their populations from the listed crimes and violations; (b) the role of the international community to support and assist States in meeting this responsibility; and (c) the role of Member States to respond in a timely and decisive manner, in accordance with the Charter, to help protect populations from the listed crimes and violations but in a manner which is not limited to the use of force. The report also emphasizes that R2P is focused solely on the four crimes and violations listed in the Outcome Document and does not extend to other calamities such as climate change, HIV and AIDS, and natural disasters. It also stresses that R2P does not alter, but rather reinforces, the legal obligation of Member States to refrain from the use of force except in conformity with the Charter.
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The General Assembly discussed the Secretary-Generals report in July 2009. The tone and substance of the debate indicated a clear consensus within the membership on the obligation to halt mass atrocities. The issues on which Member States expressed concern included selectivity and the use of double standards in the implementation of the norm; the use of force and unilateral intervention; the restraint on the use of veto by the P5 in R2P situations; and respective roles of the General Assembly and the Security Council in implementing R2P. In September 2009, the General Assembly adopted by consensus resolution 63/308 on R2P, in which it took note of the report of the Secretary-General and of the timely and productive debate and decided to continue its consideration of R2P.
Hot Issues
No international agreement exists on the criteria for external military intervention to put an end to genocide, war crimes, ethnic cleansing and crimes against humanity. It is argued that external intervention even in such cases may be at odds with the concept of sovereignty. Focus of attention has been on intervention and less on State responsibility in countries where crimes may be committed. Detractors of the R2P concept argue that by justifying external breaches of State sovereignty, R2P encourages foreign aggression by stronger nations. Confusion exists on the parameters of R2P, e.g. when the crime of genocide is contested or when access for disaster affected communities is denied.
On-line publications:
The Responsibility to Protect, International Commission on Intervention and State Sovereignty (ICISS), Dec 2001. http://www.iciss.ca/pdf/Commission-Report.pdf This report examines the so-called right of humanitarian intervention, i.e. the question of when, if ever, it is appropriate for States to take coercive, and in particular military, action, against another State for the purpose of protecting people at risk in that other State.
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Main elements
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humanitarian consequences and their implications for operations, and the factors driving constraints, is thus essential to identifying means of addressing them. This means our analysis and efforts to find means to address constraints must be built on increasingly systematic and rigorous access monitoring. The combination of multiple and complex types of constraints on access across several situations also underscore the importance of coordinated strategies and efforts to enhance access. While a humanitarian agency may need to develop its own operational strategy in accordance with its particular operational requirements for the safe and timely provision of humanitarian aid, no single agency can develop and implement comprehensive solutions itself. The strategic options we develop and implement, our conduct as humanitarian actors, and the substance of our negotiations with parties to the conflict and other actors, concern all humanitarian actors and have implications for the affected population as a whole. Coordination of access negotiation undertaken by humanitarian actors with the parties to conflict will increasingly need to feature prominently in our strategies. This includes efforts to establish acceptance for humanitarian action and negotiate appropriate context-specific modalities for the implementation of humanitarian activities which are consistent with humanitarian principles. In addition, given that crises evolve over time, access negotiation is rarely a one-off activity. Ongoing liaison with all relevant parties is an essential underpinning of successful access negotiation. Most importantly, consistent adherence to humanitarian principles underpins effective humanitarian operations. They provide the basis for establishing acceptance for humanitarian activities to be conducted, while minimising interference in this regard and, therefore, serve to help achieve and sustain access. Strategies to address access constraints must draw upon various capacities within the humanitarian community. For example, robust civil-military coordination capability may be essential to help arrange and implement humanitarian corridors or de-conflicting arrangements during hostilities, whereby communication channels with parties to conflict are used to coordinate the time and locations of relief activities to help ensure that military operations do not interfere with the delivery of humanitarian assistance. Skills to develop and implement media strategies may also be important to disseminate information and increase public awareness on humanitarian principles and humanitarian activities in a given context.
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Hot Issues
Multifaceted UN operations may blur the distinction between political goals and humanitarian operations, as well as that between political or military actors and humanitarian organizations. Humanitarian actors face hard choices and trade-offs between adopting measures which enable them to reach affected populations in the short term versus the implications those measures may have for their acceptance and access in the long term. Approaches to the security management of humanitarian operations can have significant implications for access. A choice to use armed escorts can limit access to only those where those providing armed escort are themselves able to operate. In addition, such measures can negatively affect perceptions of neutrality and, therefore, security if those providing armed escort are themselves a target for attack by opposing forces.
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Decreasing field presence in response to a perceived increase in security threats means that personnel may be absent precisely when and where ongoing liaison or intensified negotiation on the ground is most needed to maintain access.
On-line publications:
Humanitarian Negotiations with Armed Groups, OCHA, 2006 http://ochaonline.un.org/humanitariannegotiations/index.htm
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Some of the most frequent problems faced during international relief operations are: Unnecessary red tape Restrictions and delays in customs clearance for relief goods and equipment; Imposition of duties, tolls and other taxes on relief items and activities; Difficulties and delays in obtaining and renewing necessary visas and permits for humanitarian personnel; Problems obtaining legal recognition of foreign professional qualifications for specialized personnel (particularly medical staff); and Difficulties in legal registration for foreign humanitarian organizations, leading to restrictions in opening bank accounts and hiring local staff. Poor quality and coordination from some international providers Importation of unnecessary or inappropriate relief items; Failure to coordinate with domestic authorities and other relief providers; Use of inadequately trained personnel; Failure to consult with beneficiaries; Culturally unacceptable behaviour; and Proselytizing.
Sources of IDRL
There is no single international instrument relating to international assistance. IDRL is contained in a wide array of international and national regulations regarding customs, transport, diplomatic privileges and immunities, telecommunications, civil and military cooperation agreements, health law, environmental treaties, international weapon control and even space law, among others. Among the most significant international instruments and guidelines regarding relief assistance are the Kyoto Convention on the Simplification and Harmonization of Customs Procedures as amended in 1999 and the Istanbul Convention on Temporary Admission of 1990, both of which include annexes specifically focused on reducing barriers to customs clearance of relief consignments and waiving associated duties and charges. However, like a number of other treaties in this area, they have relatively few parties. Several treaties in the area of transport law also have individual provisions designed to ease the entry of disaster relief items and personnel. These include the Convention on Facilitation of International Maritime Traffic of 1965 and Annex 9 to the Convention on International Civil Aviation of 1944. One of the best-known global instruments on disaster response relates to telecommunications law. The Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations of 1998 calls on State parties to reduce regulatory barriers to the use of telecommunications resources. Importantly, this convention applies not only to States but also to other entities providing relief, including humanitarian organizations. Several instruments focusing on donors are also important for disaster relief. These include the Food Aid Convention as amended in 1999, which sets out not only minimal donation commitments but also progressive quality standards for food assistance, and the non-binding Principles and Practice of Good Humanitarian Donorship of 2003, which emphasize the responsibility of donors to provide their funding in ways supportive of equitable and appropriate relief. In 2005, the International Health Regulations were revised and greatly expanded, providing strong systems for the international exchange of information pertinent to prevention and response to the spread of diseases. The World Health Organization (WHO) has also been key in developing guidelines in other pertinent areas related to health law, including with regard to drug donations and the use of field hospitals.
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Moreover, guarantees for the security of humanitarian personnel were extended to some disaster relief personnel by the 2005 Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel. Probably the most important and most comprehensive global instruments in this area are nonbinding resolutions, declarations, codes and guidelines. A number of UN documents fall in this category, particularly UN General Assembly Resolutions 46/182 of 1991, 57/150 of 2002 on international urban search and rescue, and the Hyogo Framework of Action of 2005. The International Conference of the Red Cross and Red Crescent has also adopted a number of important instruments, including the Measures to Expedite International Relief of 1977 (which were also endorsed by the UN Economic and Social Council and General Assembly). The most widely used voluntary codes and guidelines in the field are the Code of Conduct of the International Red Cross and Red Crescent Movement and Non-Governmental Organizations of 1994 and the Sphere Humanitarian Charter and Minimum Standards in Disaster Relief as revised in 2004.
The Guidelines
In November 2007, the State parties to the Geneva Conventions and Red Cross and Red Crescent actors unanimously adopted the Guidelines for the domestic facilitation and regulation of international disaster relief and initial recovery assistance (known as the IDRL Guidelines) at the 30th International Conference of the Red Cross and Red Crescent. The Guidelines were also welcomed by the IASC WG earlier in 2007 and by three resolutions of the UN General Assembly (UNGA Res. Nos. 63/139, 63/141, and 63/137) in 2008. The IDRL Guidelines are a set of recommendations to governments on how to prepare their disaster laws and plans for the common regulatory problems in international disaster relief operations. They are based on and summarize the provisions of existing international legal and policy documents (such as those described above). The Guidelines recognize that it is first and foremost the responsibility of the government of the affected State to address the humanitarian needs caused by a disaster within its borders and, therefore, international disaster assistance should be designed and implemented so as to be complementary to the efforts of these domestic actors, rather than displace them. The Guidelines advise governments as to the minimal quality standards they should insist upon in humanitarian assistance as well as the kinds of legal facilities aid providers need to do their work effectively. The Guidelines also encourage States to reduce legal barriers to disaster relief originating within or passing through their territories to another country affected by a disaster, in order to avoid delays. For both transit and affected States, the Guidelines call for: Expedited visa processing and customs clearance for relief personnel, goods and equipment; Facilitation of relief transport; Exemptions from taxes, duties and fees on relief activities; and Simplified means for humanitarian organizations to acquire temporary domestic legal personality in order to operate legally in the country. The Guidelines insist that international assistance providers be held responsible for abiding by certain minimum humanitarian standards in their disaster assistance. Granting of legal facilities to these organizations should be conditioned to their commitment to, and ongoing compliance with, these minimal standards.
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While primarily designed as a preparedness tool for legal reforms before disasters strike, the Guidelines can also be used as an advocacy document, as an expression of international consensus on how to deal with the most common regulatory issues.
Hot Issues
The primary role of domestic authorities and legal sovereignty of the State may be at odds with speedy international humanitarian access. Access by relief actors often remains contested as does the concept of right of access. Completely unregulated and unfettered access by international actors has often been found to be counterproductive. On the other hand, too much regulation can clearly have severe ramifications on affected communities.
On-line publications:
Law and legal issues in international disaster response: a desk study, IFRC 2007. http://www.ifrc.org/Docs/pubs/idrl/desk-study/113600-idrldeskstudy-en.pdff http://www.ifrc.org/what/disasters/idrl/research/publications.asp This desk study compiles the insights gained by the International Federations IDRL programme through its legal research, case studies, consultations and a global survey on existing regulatory frameworks and remaining problem areas
Introduction to the guidelines on the domestic facilitation and regulation of international disaster relief and initial recovery assistance http://www.ifrc.org/what/disasters/idrl/resources/guidelines.asp On 30 November 2007, the 30th International Conference of the Red Cross and Red Crescent unanimously adopted the IDRL Guidelines. This introduction provides information on their origins and presents their text and the text of the adopting resolution
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11.3
The Agreement
Following the recommendations of the Workshop on Emergency Stockpiles, the First Meeting of the Standing Coordinating Group of the Military and Civil Defence Assets (MCDA) Project, and a number of other meetings and consultations with interested national and international organizations, OCHA initiated the development of a Model Agreement between the United Nations and a State/government concerning measures to expedite the import, export and transit of relief consignments and possessions of relief personnel in the event of disasters and emergencies (Model Customs Facilitation Agreement). The recommended measures are to be applied to the import, export and transit of relief consignments and possessions of relief personnel in the event of disasters and emergencies. These measures are included in the Model Customs Facilitation Agreement.
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The Model Customs Facilitation Agreement is intended to serve as a basis for the development of practical working tools on a bilateral, UN - particular country level.
Hot Issues
The annex I to the customs agreement requires a certification by the UN RC/HC that the (non-UN) shipper is a bona fide participant in the relief operation. This kind of certification is a necessary measure of control and guarantee for the respective government and the UN as a whole against abuse of customs facilities by private relief agencies.
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