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The Development of International Refugee Protection through the Practice of the UN Security Council

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Christiane Ahlborn

2. Normative Strengthening of International Refugee Protection : Towards More Human Security

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  • 95   See generally P. Tavernier, ‘Les déclarations du Président du Conseil de Sécurité’, (1993) 39
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1After having linked massive flows of refugees with peace and security in the case of Iraq in the early 1990s, the Security Council has increasingly used situations related to international refugee protection to declare a threat to international peace and security, triggering measures under Chapter VII of the UN Charter. The practice that has subsequently developed addresses the root causes of mass displacement, as originally requested by the Expert Group on International Cooperation to avert Refugee Flows. Moreover, the Security Council has begun to make statements on substantive aspects of international refugee protection, often following previous initiatives by the General Assembly, ECOSOC or the UNCHR Executive Committee. While the following analysis of the normative effects of these statements on the development of international refugee protection will focus on decisions with binding force for UN member States, mostly indicated by a reference to Chapter VII, it will also consider resolutions that are potentially only recommendatory, declaratory or addressed to subsidiary organs such as peacekeeping forces and other principal organs such as the Secretary-General. Moreover, presidential statements will be taken into account where they can be regarded as normatively significant decisions of the Security Council, for instance, by reiterating or elaborating on the terms of a resolution.95

  • 96   The three resolutions adopted by the Security Council on the “Protection of Civilians in Armed Co (...)
  • 97   Despite their notable differences, all of these fields of law have one common objective, which le (...)
  • 98   The concept of human security does not have a commonly agreed definition. However it is increasin (...)

2On the basis of this body of Security Council decisions it will be argued that the substantive references of the Security Council to international refugee protection have become more refined in legal language over time. Today they show a relatively consistent pattern of decisions centered around the agenda topic of the “Protection of Civilians in Armed Conflict” which places the individual – and not the State – at the core of modern understandings of international security.96 In view of its primary responsibility for the maintenance of international peace and security, the Council has thereby established a normative framework of general application and without any temporal limitations through a series of unanimously adopted resolutions. International refugee law figures in all of these resolutions, and the Security Council equally refers to international humanitarian law and human rights to ensure the protection of civilians.97 As these civilians are mainly refugees and internally displaced persons, the framework created by the Council also illustrates how international refugee law may be effectively complemented by international humanitarian law and human rights in order to fill the gaps in the existing protection regime. It is therefore suggested that the codification of much of the Security Council’s previous law enforcement practice into this general normative framework confirms its above-described threefold normative influence on international law: by applying the refugee-related aspects of this framework in specific country situations, the Security Council has not only enforced, but also developed the customary law aspects of international refugee protection, a practice which has sometimes crossed the thin line to law-making in the area of human security.98 In its various political activities relating to the protection of civilians, the Council has thus normatively strengthened different aspects of international refugee protection throughout the stages of the displacement process.

2.1 Strengthening the Responsibility for the Root Causes of Displacement

  • 99   See Section 2.3, infra.
  • 100   UN Doc. A/RES/36/148 (16 Dec. 1982), preamble. 5 (emphasis added).
  • 101   In 1980 the General-Assembly adopted UN Doc. A/RES/35/124 (11 Dec. 1980) on “International Cooper (...)
  • 102   See C. Tomuschat, ‘State Responsibility and the Country of Origin’, in V. Gowlland-Debbas (ed.), (...)

3International refugee law, and in particular the 1951 Convention as its centerpiece, has a strong bias towards countries of asylum. The 1951 Convention sets forth an extensive catalogue of legal rules and obligations which is exclusively applicable to State parties having received refugees or demands for admission of asylum-seekers. Yet, as implied by the notion of persecution at the core of the refugee definition, the creation of refugees has its causes in human conduct outside the country of asylum whose rectification is necessary for voluntary and safe return.99 In resolution 36/148, for instance, the General Assembly, strongly condemned “policies and practices of oppressive and racist regimes, as well as aggression, colonialism, apartheid, alien domination, foreign intervention and occupation, which are among the root causes of new massive flows of refugees”.100 It was through different subsequent initiatives examining the link between human rights violations and mass exodus, undertaken by the General Assembly and the UN Human Rights Commission,101 that the focus of the refugee protection regime gradually shifted to include the country of origin as a crucial element in the triangle whose other elements are the refugee and the country of asylum.102

  • 103   UNHCR Executive Committee Conclusion No. 74 (XLV) (1991), paras. (ii), (vii). In this context, Ex (...)
  • 104   UNHCR, Note on International Protection, UN Doc. A/AC.96/777 (7 Sept. 1991), para. 49.

4When the UNHCR Executive Committee called for a more articulate concept of State responsibility in the early 1990s,103 however, it was faced with a particular problem: the responsibility of the country of origin for the creation of refugee flows is not triggered by the crossing of an international border by potential asylum-seekers, but by violations of human rights and international humanitarian law within the delicate sphere of State sovereignty. After identifying the human rights dimensions of refugee flows as a source for national and international stability, ExCom therefore emphasized not only the obligations of the country of origin to “safeguard and protect human life and dignity and to guarantee citizens’ rights” but also the obligations of other States which are “inherent in membership of the international community”.104

  • 105   UNHCR defined prevention as “the elimination of causes of departure, rather than the erection of (...)
  • 106   Phuong notes that UNHCR’s initiatives therefore have to be linked with political efforts to prote (...)
  • 107   Tomuschat, for instance, characterizes this solution as “almost unchallengeable in theory” but di (...)

5The international community has discharged this responsibility to a certain extent by supporting the work of UNHCR. From originally mainly operating in countries of asylum, UNHCR has thus gradually developed capacities for so-called preventive protection, a term used at the beginning of the 1990s to describe the agency’s new activities to prevent refugee flows.105 Nonetheless, although these preventive activities have led the agency to pay more attention to the causes triggering persecution, it is neither within UNHCR’s mandate nor within its capacity to handle certain root causes of displacement such as large-scale human rights violations or armed conflict.106 Consequently, several commentators have proposed that the international community make use of the powers of the Security Council to invoke the responsibility of the country of origin for conditions that led to displacement.107 Where such root causes amount to genocide, crimes against humanity or war crimes, it has even been claimed that the international community has a residual responsibility or duty to protect populations from such grave violations of human rights and international humanitarian law, which is to be discharged through the Security Council’s Chapter VII powers.

2.1.1 Responsibility of the Country of Origin for Violations of Human Rights and International Humanitarian Law

  • 108   UN Doc. S/RES/232 (16 Dec. 1966) and UN Doc. S/RES/253 (29 May 1968) on Southern Rhodesia; UN Doc (...)
  • 109   See Dowty and Loescher, supra note 10, at 70-71.
  • 110   Phuong, supra note 106, at 223.
  • 111   UN Doc. S/PV.3238 (16 Jun. 1993). In the end, however, China did vote in favor of the resolution (...)
  • 112   UN Doc. S/RES/841 (13 Jun. 1993), preamble.
  • 113 Ibid.
  • 114   UN Doc. S/RES/940 (31 Jul. 1994), preamble.
  • 115   UN Doc. S/RES/940 (31 Jul. 1994), para. 4.
  • 116   Article 2 (7) of the UN Charter. In the past, intervention authorized by the Security Council in (...)

6After invoking Chapter VII enforcement powers in only two cases before 1990, South Africa and Rhodesia,108 the Security Council has over the past two decades characterized various situations of grave human rights violations, which are almost invariably accompanied by displacement such as in Iraq in 1991, as threats to international peace and security. In fact, in such situations the reference to trans-border refugee flows has served as prima facie evidence of grave breaches of human rights and humanitarian standards,109 but also provided the necessary policy impetus and legal justifications to take collective action under Chapter VII.110 When the de facto regime in Haiti refused to reinstate former President Aristide, for example, China and other Security Council members depicted the crisis as “essentially a matter which falls within the internal affairs of the country, and therefore should be dealt with by the Haitian people themselves”.111 On 16 June 1993 the Council still voted unanimously in favor of resolution 841, imposing an arms and fuel embargo under Chapter VII.112 In adopting resolution 841, the Security Council was motivated by two primary concerns: the current “incidence of humanitarian crises, including the mass displacements of population” and the potential increase in Haitian refugees as a threat to regional peace and security. It stated “that the persistence of this situation contributes to a climate of fear of persecution and economic dislocation which could increase the number of Haitians seeking refuge in neighbouring Member States”.113 After further intransigence on the part of Haitian authorities and a renewed surge in violence resulting in the “desperate flight of Haitian refugees”,114 the Council even authorized a multinational intervention force under Chapter VII of the UN Charter in resolution 940 to enforce the responsibility of the de facto regime in Haiti for the causes of massive exodus from the country.115 By emphasizing the international dimension of mass exodus and particularly its consequences for the region, the Security Council has thus successfully circumvented the traditional legal constraints of the non-intervention principle in Article 2 (7) of the UN Charter which “shall not prejudice the application of enforcement measures under Chapter VII”.116

  • 117   UN Doc. S/RES/814 (26 Mar. 1993), preamble. The resolution subsequently established the UN Operat (...)
  • 118   UN Doc. S/RES/751 (24 Apr. 1992), preamble.
  • 119   See S.M. Makinda, Seeking Peace from Chaos: Humanitarian Intervention in Somalia (1993), 61.
  • 120   UN Doc. S/RES/1132 (8 Oct. 1997), preamble.
  • 121 Ibid., para. 5-6; and UN Doc. 1171 (5 Jun. 1998), para. 5. The petroleum embargo was lifted in S/RE (...)

7In taking these enforcement measures to protect persons at risk of displacement, the Security Council has also not been confined by the State-centric view of the refugee definitions contained in the UNHCR Statute and the 1951 Convention which have generally been interpreted to refer to persecution by the “State” of nationality. In the case of Somalia, Security Council resolution 814 (1993) took note of the large numbers of refugees displaced by the conflict and of “difficulties caused [to neighboring countries] due to the presence of refugees in their territories”.117 However, unlike Iraq in 1991 and Haiti in 1993, the Security Council did not invoke trans-border refugee flows to justify international action but emphasized in resolution 751 that it was the “magnitude of the human suffering” in Somalia that constituted a threat to international peace and security.118 More importantly, intervention took place without the ‘consent’ of the target State, on grounds that there was no effective government in Somalia to give or to withhold such consent.119 In Sierra Leone, the Security Council even explicitly held non-State actors, notably the Revolutionary United Front (RUF), and the military junta accountable for the threat to international peace and security which was declared on the basis of continued violence and loss of life following the military coup of 25 May 1997, the deteriorating humanitarian conditions in the country, and the consequences for neighboring countries.120 Besides imposing an embargo on petroleum and petroleum products, the Council also es­tablished an arms embargo on non-State actors as well as a travel ban that was explicitly extended to the RUF in resolution 1171.121 By declaring threats to international peace and security on the basis of serious human rights violations committed by non-State actors, the Council has certainly contributed to the recognition of non-State sources of persecution, and thus their responsibility for the creation of refugee situations.

  • 122   UN Doc. S/RES/827 (25 May 1993) on the establishment of the ICTY and UN Doc. S/RES/955 (8 Nov. 19 (...)
  • 123   ICTR Statute, Article 3 lit. d) and h); ICTY Statute, Article 5 lit. d) and h). See also Article (...)
  • 124   Prosecutor v. Kupreskic, Judgment, Case No. IT-95-16-T (14 Jan. 2000), paras. 588 and 589, in whi (...)
  • 125   UN Doc. S/RES/787 (16 Nov. 1992), para. 2; UN Doc. S/RES/827 (25 May 1993), preamble.
  • 126   On the meaning of “ethnic cleansing” see Application of the Convention on the Prevention and Puni (...)
  • 127   See P. Bertrand, ‘An Operational Approach to International Refugee Protection’, (1994) 26 Cornell (...)
  • 128   UN Doc. S/RES/752 (15 May 1992), para. 6.
  • 129   See Freeman, supra note 10, at 585.

8The establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) by the Security Council has further demonstrated that not only countries of origin but also individuals can be held responsible for the root causes of displacement such as genocide, crimes against humanity and war crimes.122 While serious violations of international humanitarian law and human rights law are prevalent in these core crimes, the Statutes of both tribunals also contain different points of intersection with international refugee law, such as persecution and deportation as constituting crimes against humanity.123 As the ICTR and ICTY confirmed, the grave breaches of international humanitarian law addressed by the Council in the former Yugoslavia and Rwanda amounted to “persecution on racial, political or religious grounds” which was among the root causes of displacement in these two conflicts.124In the former Yugoslavia, the Security Council also condemned policies of forced displacement in the form of deportation and encampment. As these policies were deliberately targeted against one ethnic group, the Council characterized these actions as unlawful “ethnic cleansing”,125 which when combined with the specific intent to destroy this group, in whole or in part, may possibly even constitute genocide.126 Whereas UNHCR’s efforts to alleviate the suffering of the displaced in the ethnic fighting were seriously hampered by its strictly humanitarian view,127 Security Council resolution 752 demanded an immediate cessation of hostilities and “call[ed] upon all parties to ensure that forcible expulsions of persons from the areas where they live and any attempts to change the ethnic composition of the population, anywhere in the former Socialist Federal Republic of Yugoslavia cease immediately.”128 Although Yugoslavia was still a State in the process of disintegration in 1991/1992, the mass killings of Bosnians through ethnic cleansing, and the displacement of millions of people, led the Council to declare a threat to international peace and security to which it reacted by imposing comprehensive economic sanctions and authorizing peace operations.129

  • 130   See V. Gowlland-Debbas, ‘Security Council Enforcement Action and Issues of State Responsibility’, (...)
  • 131   See, for instance: UN Doc. S/RES/1296 (19 Apr. 2000), para. 17 and UN Doc. S/RES/1674 (28 Apr. 20 (...)
  • 132   See V. Gowlland-Debbas, ‘Concluding Reflections on the International Protection of Refugees’, in (...)

9It can be concluded that following resolution 688 regarding the Kurdish population in Iraq, the Security Council has used its enforcement powers to invoke the responsibility of countries of origin for various root causes of displacement. After finding a breach of an international obligation of human rights or humanitarian law, the Council has attributed this breach to State, and sometimes also non-State actors. This process has formed the basis for the application of legal sanctions by the Council, even though the Council’s qualifications have been evidently political in nature.130 The Council has thus contributed to the articulation of the concept of responsibility for the conditions at the origin of displacement. By institutionalizing the responsibility of individual perpetrators in the form of the ICTY and the ICTR, and by continuously reiterating the need to end impunity trough national and international efforts,131 the Security Council has also made clear that international refugee protection is a matter of concern to the international community as a whole.132

2.1.2 Responsibility of the International Community: A Duty to Protect?

  • 133   See supra note 10.
  • 134   See International Commission on Intervention and State Sovereignty, The Responsibility to Protect (...)
  • 135   UN Doc. A/RES/60/1 (16 Sept. 2005), paras. 138 and 139.

10Does the international community have a responsibility to protect populations from serious violations of international humanitarian law, if necessary by use of force? While this question is certainly not new to international lawyers, the Security Council’s post-Cold War activism to intervene in internal affairs, often without the consent of the particular State concerned, has resulted in a vivid debate on collective UN action for humanitarian purposes,133 which more recently culminated in discussions of a “responsibility to protect”. Originally proposed by the International Commission on Intervention and State Sovereignty (ICISS),134 this emerging norm attributes the primary responsibility to protect a population from genocide, crimes against humanity and war crimes to the respective government in the same way as the above-discussed concept of the country of origin. However, the responsibility to protect also includes a subsidiary responsibility or duty to protect on the part of the international community if the country of origin has failed to fulfill its obligations under international law. When UN member States officially endorsed this two-step approach in the 2005 Summit Outcome, they agreed to take collectiveaction, in a timely and decisive manner, through the Security Council, in accordance with theCharter, including Chapter VII.135

  • 136   UN Doc. S/RES/1556 (30 Jul. 2004), preamble. It is revealing that the Security Council once again (...)
  • 137   UN Doc. S/RES/1556 (30 Jul. 2004), preamble.
  • 138   UN Doc. S/RES/1706 (31 Aug. 2006), preamble.
  • 139   UN Doc. S/RES/1674 (28 Apr. 2006), preamble and para. 4.
  • 140   UN Doc. S/RES/1296 (19 Apr. 2000), para. 5.
  • 141   In the case of East Timor (Portugal v. Australia), Preliminary Objections, Judgment of 30 Jun. 19 (...)

11In its practice to date, the Security Council has rarely referred to the responsibility to protect in its country-specific resolutions, with the notable exception of the Darfur region of Sudan. Before declaring a threat to international peace and security with particular emphasis on the more than 200,000 refugees who fled to neighboring Chad,136 Security Council resolution 1556 emphasized that the government of Sudan bore the primary responsibility to respect human rights while maintaining law and order and protecting its population within its territory against violations of human rights andinternational humanitarian law by all parties to the crisis, in particular by theJanjaweed, including indiscriminate attacks on civilians, rapes, forceddisplacements, and acts of violence especially those with an ethnic dimension.137 In resolution 1706 on the expansion of the United Nations Mission in Sudan (UNMIS), the Council specifically referred to paragraphs 138 and 139 of the Summit Outcome Document outlining its role in the implementation of the responsibility to protect.138 While these isolated references only speak of a nascent Security Council practice, they have to be seen in the context of its framework resolutions on the protection of civilians in armed conflict which underline the primary responsibility of States for their own populations, the 2005 Summit Outcome Document,139 and the Council’s readiness to adopt appropriate steps to address systematic, flagrant and widespread violations of international humanitarian and human rights as threat to international peace and security.140 Although these framework resolutions were not adopted on the basis of Chapter VII, it could be argued that the Security Council’s emphasis on the potential application of Chapter VII measures shows its intention to give them binding and normatively far-reaching effect.141

  • 142   In a critical consideration of the responsibility to protect, The Economist recently noted: “Perh (...)
  • 143   Report of the Secretary-General on “Implementing the Responsibility to Protect”, UN Doc. A/63/677 (...)
  • 144   Kelsen, supra note 79, at 294.
  • 145 Ibid., at 735.
  • 146   See Gowlland-Debbas,supra note 130, at 63.

12Nonetheless, a crystallization of the responsibility to protect as a norm in customary international law through the Security Council’s actions may be doomed to fail due to the selectiveness and ad hoc character of the Council’s actions when addressing serious human rights violations.142 In his 2009 report on “Implementing the responsibility to protect”, the Secretary-General underlined that the substantial gaps in capacity, imagination, and will to implement the norm have been “[n]owhere […] more pronounced or more damaging than in the realm of forceful and timely response to the most flagrant crimes and violations relating to the responsibility to protect.”143 Of course, any such criticism has to take into account the Council’s primary function in the international system as political and not a law enforcement organ. As Hans Kelsen once concluded, “the purpose of the enforcement action under Article 39 is not to maintain or restore the law, but to maintain or restore peace which is not necessarily identical with the law”.144 The determination under Article 39 of the Charter entails a factual and political judgment and not a legal one which is “in conformity with the general tendency which prevailed in drafting the Charter; the predominance of the political over the legal approach”.145 The collective responses to violations of international law by the Security Council as a political organ can therefore not be expected to be automatic or impartial as they depend to a large extent on the existing political consensus within that body and on various arrangements of power and State interests.146

  • 147   See Gowlland-Debbas, supra note 47, at 288.
  • 148   See Bianchi, supra note 10.
  • 149   See G. Schotten and A. Biehler, ‘The Role of the UN Security Council in Implementing Internationa (...)

13Although the Council is not compelled under the UN Charter to react to violations of international law, it is still undeniable that its practice, which has developed from mere political contingency decisions to general statements on the applicable law, creates normative expectations on the part of States but also individuals that have to bear the legal consequences of the Council’s actions.147 As human rights have become a cornerstone of the international legal order, it remains to be seen whether the responsibility to protect will consolidate as a principle or norm of general application that would make the Council’s actions more consistent and predictable.148 At this stage, it can only be observed that grave violations of human rights and international humanitarian law, which were once considered subordinate or outside the UN Charter’s main goal, peace and security, have gained in importance and now form an integral part of the Security Council’s function, but not duty, to maintain and enforce peace.149

2.2 Strengthening the Provision of Protection and Assistance during Displacement

  • 150   See L. Barnett, ‘Global Governance and Evolution of the International Refugee Regime’, (2002) 14 (...)

14When efforts to address the root causes of refugee flows by the Security Council or other relevant actors have been unsuccessful and displacement has occurred, the respective responsibilities of States and of the international community seem to be clearly described in the applicable legal instruments. While the 1951 Convention sets out a concrete catalogue of obligations of countries of asylum or host countries, reaching from simple administrative measures to non-refoulement, the UNHCR Statute ensures international cooperation in solving the refugee problem. However, since the end of the Cold War, the causes and context of persecution have changed with greater numbers of refugees fleeing from protracted civil war, communal violence, and civil disorder or more generally man-made disasters. In these complex conflict settings, countries of asylum are now often countries of origin at the same time, in particular on the African continent. Moreover, the rapidly rising number of IDPs has emerged as a new challenge for the international community,150 blurring the legal standards and institutional competencies established on the basis of the traditional refugee definition.

  • 151   Report of the Secretary General on protection for humanitarian assistance to refugees and others (...)

15It is against this background that the President of the Security Council requested the Secretary-General to prepare a report on the “Protection for Humanitarian Assistance to Refugees and Others in Conflict Situations” which emphasized that the Security Council needs to take into account all aspects of a conflict in order to “develop a comprehensive approach to conflict resolution with the General Assembly, the Economic and Social Council, other relevant bodies of the United Nations […] as well as Member States”.151 By integrating the findings of this report into its subsequent resolutions, in particular on the protection of civilians, the Council has addressed more and more aspects pertaining to the protection of and assistance to refugees as well as IDPs when responding to armed conflict situations. The Security Council has thus begun to play an increasingly important role in strengthening the regime of international refugee protection, not only before or after, but also during displacement.

2.2.1 Protection of Civilians

  • 152   UN Doc. S/RES/1208 (19 Nov. 1998). The UNHCR Executive Committee has endorsed this resolution: se (...)
  • 153   UN Doc. S/RES/1208 (19 Nov. 1998), paras. 1 and 3.
  • 154 Ibid., paras. 5, 6 and 9.
  • 155   UN Doc. S/RES/1296 (19 Apr. 2000), para. 14.
  • 156   See Phuong, supra note 106, at 220.

16The expansion of the Security Council’s conflict resolution activities to include the protection of persons during displacement is most evident in resolution 1208, which was adopted as a result of the Secretary-General’s report on protection for humanitarian assistance to refugees.152 After reaffirming the importance of the principles relating to the status of refugees and the common standards of treatment contained in the 1951 Convention, as well as the 1969 OAU Convention, this landmark resolution affirmed the primary responsibility of host States to ensure the civilian and humanitarian character of refugee camps and settlements in accordance with international refugee law, human rights and humanitarian law.153 Moreover, the Security Council urged UNHCR, other relevant organizations and Member States to support host countries in these efforts in light of international burden-sharing.154 Although resolution 1208 is not binding on UN Member States, it laid the groundwork for resolution 1296 on the protection of civilians in armed conflict. This latter resolution addressed the situation where refugees and IDPs are under the threat of harassment, or where their camps are at risk of infiltration by armed elements as potential threats to international peace and security.155 The Council thus acknowledged that not only causes giving rise to refugee movements, but also instability resulting from such movements or the presence of refugees in a host country, in itself, may constitute threats to international peace and security, and that refugees are in special need of protection in such situations.156

  • 157   Security concerns are often inherently linked to the security environment for refugees. Guerilla (...)

17This general statement was first put into practice by the Security Council with regard to the population displacement in the border region of Chad, Sudan and the Central African Republic.157 After having explicitly referred to the 1951 Convention on the Status of Refugees and its 1967 Protocol in the preambular paragraphs of resolution 1778 (2007), the Council determined“that the situation in the region of the border between the Sudan, Chad and the Central African Republic constitutes a threat to international peace and security”, and

  • 158   UN Doc. S/RES/1778 (25 Sept. 2007), para. 1 (emphasis added).

 “[a]pproves the establishment in Chad and the Central African Republic, in accordance with paragraphs 2 to 6 below and in consultation with the authorities of Chad and the Central African Republic, of a multidimensional presence intended to help to create the security conditions conducive to a voluntary, secure and sustainable return of refugees and displaced persons, inter alia, by contributing to the protection of refugees, displaced persons and civilians in danger, by facilitating the provision of humanitarian assistance in eastern Chad and the north-eastern Central African Republic and by creating favorable conditions for the reconstruction and economic and social development of those areas.”158

  • 159   For a recent example see UN Doc. S/PRST/2008/18 (23 Mar. 2008), 1, on the protection of civilians
  • 160   For example, in a resolution extending the United Nations Mission in the Democratic Republic of C (...)

18In the operative paragraphs of the resolution that followed, the Security Council established the United Nations Mission in the Central African Republic and Chad (MINUCRAT) to support the respective governments in creating those conditions conducive to voluntary return. The Security Council’s commitment toward the protection of civilians is hence not only shown in the form of numerous reiterations of resolutions on the protection and/or its content, mostly in topic-specific resolutions or presidential statements,159 but also in country-specific resolutions and in particular, peacekeeping mandates.160

  • 161   In UN Doc. S/RES/1265 (17 Sept. 1999), para. 5, on the protection of civilians, the Council calle (...)
  • 162   See Goodwin-Gill and McAdam, supra note 15, at 343-345.
  • 163   UN Doc. S/RES/1208 (19 Nov. 1998), preamble, referring to UN Doc. A/RES/52/103 (9 Feb. 1998) on t (...)

19For the purposes of this paper on the development of international refugee protection, it is also noteworthy that the Council’s practice has shown its commitment to promote respect for international refugee law and the 1951 Convention in the specific context of the maintenance of peace and security, thus distinguishing its actions from the more general mandate of the General Assembly.161 More importantly, the Security Council has emphasized the significance of the 1951 Convention in situations of mass influx and complex displacement situations which implies at least an indirect reference to the principle of non-refoulement as the cornerstone of the 1951 Convention. Although this principle has meanwhile gained the status of customary international law, its realization is often still hampered by ‘politico-legal arguments’.162 As criticized by the two General Assembly resolutions referred to in the preamble of Security Council resolution 1208, this is particularly the case in large-scale population movements.163 The Security Council’s reference to States’ obligations under the 1951 Convention may therefore give additional impetus to secure admission and to provide protection, including durable solutions, in the case of mass influx, especially when such statements are accompanied by enforcement action adopted pursuant to Article 41 or 42 of the UN Charter.

Refugee Women and Children

  • 164   UN Doc. S/RES/1261 (25 Aug. 1999); UN Doc. S/RES/1314 (11 Aug. 2000); UN Doc. S/RES/1379 (20 Nov. (...)
  • 165   UN Doc. S/RES/1325 (21 Oct. 2000).
  • 166   UN Doc. S/RES/1820 (19 Jun. 2008).
  • 167   UN Doc. S/RES/1314 (11 Aug. 2000), para. 6, in which the Security Council urged Member States an (...)

20Whilst the Security Council’s decisions on the protection of civilians have provided the general normative framework within which to address situations of forced displacement, its increased focus on human security has also led the Council to pay specific attention to the situation of vulnerable groups within refugee movements, such as women and children. Accordingly, refugee women and children figure prominently in a number of thematic resolutions, notably on the topics of “Children and Armed Conflict”,164 “Women and Peace and Security”165 and “Sexual Violence”,166 in which the Council has supplemented its framework on the protection of civilians. The Security Council’s observation that children and women represent the vast majority of displaced persons thereby reflects earlier efforts of UNHCR and the General Assembly dating back to the late 1980s on the special protection needs of refugee women and children.167

  • 168   See ibid., at 473.
  • 169   UN Doc. S/RES/1820 (19 Jun. 2008), para. 10 (emphasis added).
  • 170   UN Doc. S/RES/1325 (21 Oct. 2000), para. 9. In addition to the 1951 Convention, the Security Coun (...)

21In the case of refugee women and girls, special protection needs stem from the risk of further violations of their human rights during flight from persecution, as female refugees are frequently targeted as victims of rape and abduction, or may have to pay for their passage to safety with sexual favors.168 This problem is addressed in resolution 1820 on sexual violence in which the Council requested “the Secretary-General and relevant United Nations agencies […] to develop effective mechanisms for providing protection from violence, including, in particular, sexual violence, to women and girls in and around United Nations-managed refugee and internally displaced persons camps, as well as in all disarmament, demobilization and reintegration processes”.169 In the context of its agenda topic of “Women and Peace and Security” the Council further called uponall parties to armed conflicts to respect fully international law applicable to the rights and protection of women and girls, including the Refugee Convention of 1951 but also the relevant provisions of the Statute of the International Criminal Court (ICC), and human rights treaties, which are now widely recognized as applying in armed conflicts.170

  • 171   UN Doc. S/RES/1778 (25 Sept. 2007), preamble.
  • 172   UN Doc. S/RES/1261 (30 Aug. 1999), preamble. See Article 8 (2) lit. b) (xxvi).
  • 173   The Special Representative of the Secretary-General on Children and Armed Conflict was appointed (...)
  • 174   UN Doc. S/RES/1261 (30 Aug. 1999), para. 4; UN Doc. S/RES/1314 (11 Aug. 2000), para. 5.

22Refugee children are particularly vulnerable because they may be easily separated from their parents, and in the context of armed conflict they may be recruited for military purposes, which constitutes a serious violation of human rights and international humanitarian law. In this respect, Security Council resolution 1778 on MINUCRAT underlines the need to preserve the civilian nature of refugee camps and IDP sites and to prevent any recruitment of individuals, including children, which may be carried out in or around the camps by armed groups.171 In its resolutions on children and armed conflict, the Security Council further recalled that child conscription under fifteen is a war crime under the ICC Statute,172 and reaffirmed its support for inter alia the Special Representative of the Secretary-General on Children and Armed Conflict,173 and UNHCR in protecting children in such situations.174

  • 175   The Secretary-General’s 2002 report to the UN Security Council on the protection of civiliansstre (...)
  • 176   UN Doc. S/RES/1314 (11 Aug. 2000), para. 9 ; UN Doc. S/RES/1820 (19 Jun. 2008), para. 1
  • 177   UN Doc. S/RES/1314 (11 Aug. 2000), para. 9; UN Doc. S/RES/1820 (19 Jun. 2008), para. 5.
  • 178   The Democratic Republic of the Congo (DRC) is a classic example in which the Security Council has (...)

23Although these thematic resolutions largely refer to existing rules of international law, some of the norms affirmed therein also go beyond established treaty or customary law, especially when obliging non-State actors or non-parties to treaties to respect international agreements.175 By emphasizing that violations of these norms may constitute threats or serious impediments to the restoration of international peace and security,176 and affirming its intention to take appropriate targeted measures,177 the Security Council has once again implied the binding character of these decisions in a general manner, hence giving them quasi-legislative status. Moreover, the Security Council does not only rely on its traditional enforcement measures, economic sanctions and peace operations, in order to ensure compliance with these decisions.178 Resolution 1612 also established a monitoring and reporting mechanism on children and armed conflict, illustrating most particularly how the Council has substituted the often lengthy and difficult treaty negotiation process by imposing these new obligations on States.

  • 179   See, for instance, UNHCR Executive Committee Conclusion No. 105 (LVII) (2006), preamble, “[r]ecal (...)

24This obvious departure from the consensual nature of treaty obligations may be a further indication that the international legal protection of refugees – here in the form of children and women in armed conflict – is a collective interest of the international community which does not always abide by the traditional rules of reciprocal inter-State law-making. It is certainly significant that the UNHCR Executive Committee has begun to quote the Security Council’s decisions as normative authority in its conclusions on refugee children and women at risk.179 These references show the extensive normative impact that the Security Council’s action may have on specific aspects of international refugee protection.

Internally Displaced Persons

  • 180   Although the number of internally displaced persons today (26 million) far exceeds the number of (...)
  • 181   UN Doc. S/RES/688 (5 Apr. 1991), paras. 1, 3, 4, 5, 6.
  • 182   UN Doc. S/RES/918 (17 May 1994), preamble.
  • 183   UN Doc. S/RES/752 (15 May 1992 ), para.7.
  • 184   UN Doc. S/RES/1778 (25 Sept. 2007), preamble, paras. 1, 5, 20.
  • 185   The first version of the UNHCR Guidelines on involvement with IDPs required the request of the Se (...)
  • 186   See Barnett,supra note 150, at 252.
  • 187   UN Doc. S/RES/1239 (14 May 1999), para. 2. The NATO bombings of Kosovo took place between 24 Marc (...)
  • 188   See J. Fitzpatrick, ‘Human Rights and Forced Displacement: Converging Standards’, in A.F.
    Bajefsky (...)

25The Security Council’s quasi-legislative activities to enhance the protection of civilians in armed conflict are also specifically relevant to the growing number of internally displaced persons which today by far exceeds the number of refugees.180 Since the early 1990s the Security Council’s references to aspects of international refugee protection have usually included IDPs, for instance, in Iraq,181 Rwanda,182 Bosnia and Herzegovina,183 and more recently the Central African Republic and Chad.184 Since neither UNHCR nor any other UN agency has received the legal authority to ‘protect’ persons within their own country, the Security Council has often fostered UNHCR’s ad hoc engagement with IDPs, in conformity with UNHCR’s internal IDP guidelines,185 and framed the agency’s operations by appropriate peacekeeping mandates.186At the height of the crisis in Kosovo, for instance, the Security Council invited “UNHCR and other international humanitarian relief organizations to extend relief assistance to the internally displaced persons in Kosovo, the Republic of Montenegro and other parts of the Federal Republic of Yugoslavia, as well as to other civilians being affected by the ongoing crisis”.187 Fitzpatrick thus claims that – next to the UN Human Rights Commission – the Security Council has become one of the main fora for discussing IDPs and their protection.188

  • 189   UN Doc. E/CN.4/1998/53/Add.2, annex [hereinafter: Guiding Principles].
  • 190   See generally L.T. Lee, ‘The Refugee Convention and Internally Displaced Persons’, (2002) 13 Inte (...)
  • 191 See generally W. Kälin, Guiding Principles on Internal Displacement: Annotations (2008); R. Cohen, (...)
  • 192   Report of the Secretary-General on the protection of civilians, UN Doc. S/1999/ (8 Sept. 1999), a (...)
  • 193   UN Doc. S/RES/1286 (19 Jan. 2000), preamble (emphasis added). In a previous statement on “Promoti (...)
  • 194   UN Doc. A/RES/53/125 (12 Feb. 1999), para. 16.
  • 195   UN Doc. A/RES/60/168 (16 Dec. 2005), preamble. 8. See also UN Doc. A/RES/60/124 (15 Dec. 2005), p (...)

26It is consequently not surprising that the Security Council played a notable role in promoting the normative content of the so-called Guiding Principles on Internal Displacement, which were adopted in 1998.189In the absence of any treaty or rule of customary international law explicitly covering “internally displaced persons”,190these Guiding Principles were elaborated by the Special Representative of the Secretary-General on the Human Rights of Internally Displaced Persons based on applicable international standards of human rights law, international humanitarian law and, by analogy, refugee law.191However, from the outset States were quite reluctant to endorse the Guiding Principles due to the sovereignty and interventionist concerns related to internal displacement. In light of this general hesitation, it is telling that the Secretary-General recommended in his 1999 report on the protection of civilians in armed conflict, leading to landmark resolutions 1265 and 1296, that the Security Council “[i]n cases of massive internal displacement, encourage States to follow the legal guidance provided in the Guiding Principles on Internal Displacement.”192 Only shortly after this report was handed down, the Security Council observed in resolution 1286 that “the United Nations agencies, regional and nongovernmental organisations, in cooperation with host governments, are making use of the Guiding Principles on Internal Displacement […], inter alia, in Africa”.193 In contrast, the General Assembly initially only noted the relevance of the Guiding Principles in 1999,194 before gradually beginning to recognize them as “an important international framework for the protection of internally displaced persons”.195

  • 196   Some commentators do not consider displacement caused by natural disasters, such as drought, floo (...)
  • 197   See Guiding Principle 5 as reflected in UN Doc. S/RES/1674 (28 Apr. 2006), preamble.
  • 198   See Guiding Principles 3 (1) and 25 (1) as reflected in UN Doc. S/RES/1314 (11 Aug. 2000), para. (...)
  • 199   See Guiding Principle 6 as reflected in UN Doc. S/RES/1674 (28 Apr. 2006), para. 12.
  • 200   See Guiding Principle 4 (2) and as reflected in UN Doc. S/RES/1314 (11 Aug. 2000), para. 6; UN Do (...)
  • 201   See Guiding Principles 10 and 11 and, as reflected in UN Doc. S/RES/1674 (28 Apr. 2006), preamble
  • 202   See Guiding Principle 10 (2) and as reflected in UN Doc. S/RES/1296 (19 Apr. 2000), para. 14.
  • 203   See Guiding Principle 25 (2) and as reflected in UN Doc. S/RES/1674 (28 Apr. 2006), para. 22.

27Although the Security Council has not often explicitly referred to the Guiding Principles on Internal Displacement in recent years, it has integrated specific aspects of the Guiding Principles in its own normative framework applicable to persons displaced by armed conflict, the primary competence of the Council, rather than internal displacement by other factors.196 The following non-exhaustive list of normative standards relevant to this study is mentioned in both the Guiding Principles and the Security Council’s resolutions on the protection of civilians: the obligation to prevent conditions that might lead to displacement,197 the primary responsibility of States to provide assistance and protection to their own citizens,198 the prohibition of forcible displacement of civilians in armed conflict,199 the special protection needs of children and women,200 respect for fundamental human rights and humanitarian standards during displacement,201 the prohibition of attacks on civilians and the civilian character of IDP camps,202 and the obligation to grant humanitarian access.203 As described above, the Security Council has used its normative authority under the UN Charter to progressively develop this framework of obligations based on human rights law, international humanitarian law and refugee law and imposed them on States and non-State actors alike. Although the elaboration of an international convention on internal displacement remains highly unlikely, the practice of the Security Council has undoubtedly contributed to the consolidation, potentially even to the making, of protection standards for IDPs under customary international law.

2.2.2 Humanitarian Assistance

  • 204   UNHCR, Note on International Protection, UN Doc. A/AC.96/830 (7 Sept. 1994), at 9, para. 14. See (...)
  • 205   Article 23 of the 1951 Convention on public relief merely states that the Contracting States “sha (...)
  • 206   The precedent was set by Sudan in 1972 when the Economic and Social Council requested that UNHCR (...)
  • 207   As Türk notes: “Refugee protection today has become infinitely more complex and difficult as comp (...)

28Although protection and assistance are not inextricably linked with one another, the provision of humanitarian assistance or relief in conflict situations is often a conditio sine qua non for international legal protection which hence becomes a rather incidental or secondary concern to UNHCR.204 As a result, humanitarian assistance has gradually developed to be a crucial element in the effective protection of refuges and internally displaced persons, although it is not mentioned in the 1951 Convention.205 This development was set in motion even before the emergence of new kinds of conflicts in the post-Cold War period as UNHCR was faced with situations of countries divided de facto, if not de jure, including countries split by civil war such as Sudan, Vietnam and, to a lesser extent, Laos before 1975.206 While UNHCR was therefore certainly used to operating in conflict-torn countries of origin, the 1990s posed new challenges such as increasing instances of denial of humanitarian access or attacks against humanitarian personnel to an organization that had so far been able to rely on the consent of the host state as well as its non-political and humanitarian character.207

  • 208 At the initiative of the UN Disaster Relief Coordinator, a draft convention on expediting the deliv (...)
  • 209   See the memorandum prepared by the ILC Secretariat which aims to provide an overview of existing (...)
  • 210   Institut de Droit International/Sixteenth Commission, Humanitarian Assistance : Resolution, Bruge (...)
  • 211   See Art. 55ff. and 108ff. of the Geneva Convention Relative to the Protection to Civilian Persons (...)
  • 212   Articles 1 (3), 55, 56 of the UN Charter. As early as 1758, Vattel referred to assistance among s (...)

29In this complex security environment, the Security Council began to strengthen different areas of humanitarian assistance by using sanctions as well as peace operations. These actions undertaken by the Council are especially important as the law on humanitarian assistance itself is normatively still unclear in some areas and not even based on a generally agreed definition. Although the first proposals to draft a “Convention to expedite the delivery of international humanitarian relief” were made in 1984,208 the continued uncertainty is best illustrated by the newest topic on the agenda of the International Law Commission (ILC), the “Protection of Persons in the Event of Disasters”.209 A notable contribution to this field of law has been made by non-governmental institutions such as the Institut de Droit International whose 2003 resolution defines humanitarian assistance as “all acts, activities and the human and material resources for the provision of goods and services of an exclusively humanitarian character, indispensable for the survival and the fulfillment of the essential needs of the victims of disasters.”210 The provision of such humanitarian goods and services is, of course, the primary responsibility of the authorities in effective control of the territory hosting the affected population which itself has a corollary right to receive such relief.211 However, in view of the principle of international cooperation to solve humanitarian problems, as enshrined in the UN Charter,212 humanitarian assistance is also a subsidiary concern of the international community, especially in cases in which the responsible national authorities are unwilling or unable to provide assistance. The specific role of the Security Council in this context has been to use its Chapter VII powers to remove the obstacles in the effective provision of humanitarian assistance to refugees and IDPs, thereby contributing to the development of legal norms on humanitarian access and the safety of humanitarian personnel.

Humanitarian Access: Obligation and/or Right?

  • 213   Report of the Secretary-General on strengthening of the coordination of emergency humanitarian as (...)
  • 214   See Phuong, supra note, at 226.
  • 215   See C. Rottensteiner, ‘The Denial of Humanitarian Assistance as a Crime under International Law’, (...)

30As stated by the UN Secretary-General, the unhampered access to those affected is “one of the key issues of humanitarian assistance”.213 Although security concerns may naturally restrict access to areas of armed conflict and other kinds of disasters, States and non-State actors often refuse to grant humanitarian access for a variety of reasons ranging from a denial of the humanitarian problem,214 to the deliberate displacement and starvation of the civilian population.215 In order to deny humanitarian access, parties to an armed conflict often misuse their authority to supervise or channel humanitarian assistance within their respective territory under the veil of sovereignty and the principle of non-intervention.

  • 216   See Articles 13, 59-61, 108 of Geneva Convention IV; Article 70 (2) and (3) of Additional Protoco (...)
  • 217 See Y. Sandoz, C. Swinarski and B. Zimmermann (eds.), Commentary on the Additional Protocols of 8 J (...)
  • 218   For a discussion of such of a right in case of Sudan see G. Schotten, ‘Der aktuelle Fall: Wiederh (...)

31Nevertheless, according to international humanitarian law, the parties to a conflict are under an obligation to allow and facilitate rapid and unimpeded passage of humanitarian aid which is offered by humanitarian organizations, even if such assistance is destined for the civilian population of the adverse party.216 The ICRC Commentaries on the Additional Protocols to the 1949 Geneva Conventions therefore state that the requirement of consent of the authorities concerned does not mean that the decision on a relief operation is left to the discretion of the parties: “[i]f the survival of the population is threatened and a humanitarian organization fulfilling the required conditions of impartiality and non-discrimination is able to remedy this situation, relief actions must take place […]. [A] refusal would be equivalent to a violation of the rule prohibiting the use of starvation as a method of combat”, as stipulated in Article 14 of Additional Protocol II.217 Yet, does this interpretation of the applicable rules of international humanitarian law also establish a right to humanitarian access on the part of international governmental and non-governmental organizations?218

  • 219   On Sierra Leone see UN Doc. A/RES/1132 (8 Oct. 1997), preamble. On Somalia see UN Doc. S/RES/794 (...)
  • 220   As the Secretary General pointed out “[h]umanitarian emergencies, by causing the mass exodus of p (...)
  • 221   UN Doc. S/RES/ 688 (5 Apr. 1991), para. 3 (emphasis added).
  • 222   UN Doc. S/RES/794 (3 Dec. 1992), preamble. 3.
  • 223   UN Doc. S/RES/929 (22 Jun. 1994), para. 3, referring to UN Doc. S/RES/925 (8 Jun. 1994), para. 4 (...)
  • 224   UN Doc. S/RES/1132 (7 Oct. 1997), para. 2; UN Doc. S/PRST/1999/1 (7 Jan. 1999).
  • 225   UN Doc. RES/1199 (23 Sept. 1998), paras. 2. and 4 (c).
  • 226   UN Doc. S/RES/1234 (9 Apr. 1999), para. 9; UN Doc. S/RES/1355 (15 Jun. 2001), preamble and para. (...)
  • 227   UN Doc. S/RES1778 (25 Sept. 2007), para. 17.
  • 228   Woodward argues that the Security Council’s policy was driven by two prior commitments in the ear (...)
  • 229   UN Doc. S/RES/752 (15 May 1992), para.7. Comprehensive sanctions were imposed by UN Doc. S/RES/75 (...)
  • 230   This crisis was the “prelude to the forcible transfer of the Bosnian Muslim civilians”. Prosecuto (...)
  • 231 Ibid. para. 653.

32In the past, the Security Council has frequently obliged UN Member States and other relevant actors to grant immediate, full and unimpeded humanitarian access by authorizing different measures under Chapter VII of the UN Charter, with or without the consent of the authorities in charge. In such situations the Council has often declared that the humanitarian situation itself or the “obstacles being created to the distribution of humanitarian assistance”,219 constitute or contribute to a threat to international peace and security.220 In this regard, the precedent in the Security Council’s practice was set by resolution 688 in which the Council “[i]nsists that Iraq allow immediate access by international humanitarian organizations to all those in need of assistance in all parts of Iraq”.221As a result, UNHCR undertook one of its first major humanitarian operations in a conflict zone and not in Turkey where it might have assumed a more traditional role well away from the conflict area in Iraq. Following Iraq, all decisions in which the Security Council has addressed complex humanitarian emergencies – such as Somalia,222 Rwanda,223 Sierra Leone,224 Kosovo,225 the Democratic Republic of Congo (DRC)226 and Sudan, Chad and the Central African Republic227 – have included provisions to ensure humanitarian access. In the case of the former Yugoslavia, the provision of humanitarian relief was even a primary objective for the imposition of mandatory measures in the first place and a continuous concern throughout the conflict.228 When the Security Council eventually decided to impose comprehensive mandatory sanctions against the Federal Republic of Yugoslavia for failure to comply with resolution 752, one of the reasons for this decision was to stop the blockage of unhindered and effective delivery of humanitarian aid to refugees and IDPs, including safe and secure access to airports in Bosnia and Herzegovina.229 As the ICTY Trial Chamber subsequently found in the Krstić case, the blocking of these aid convoys was part of the ‘creation of a humanitarian crisis’230 which, combined with crimes of terror and forcible transfers, incurred individual responsibility for inhumane acts and persecution as crimes against humanity.231

  • 232   Institut de Droit International/Sixteenth Commission, supra note 210, at 8, Section XIII., para. (...)
  • 233   UN Doc. S/RES/1296 (19 Apr. 2000), para. 8.
  • 234   UN Doc. S/RES/1674 (26 Apr. 2006), para. 22 (emphasis added). See also UN Doc. S/RES/1502 (23 Aug (...)
  • 235   On further UN practice regarding this rule see Henckaerts and Doswald-Beck (eds.), supra note 71, (...)
  • 236   See H. Kelsen, Pure Theory of Law (1934), translated by M. Knight (1967), 191. With regard to the (...)

33In view of the Security Council’s practice with regard to access to humanitarian assistance, the Institut de Droit International, amongst others, concluded that the Security Council may take the necessary measures under Chapter VII of the UN Charter “[i]f the refusal to accept a bona fide offer of humanitarian assistance or to allow access to the victims leads to a threat to international peace and security”.232 It is even more important, however, that the Security Council itself has codified this practice in its resolutions on the protection of civilians. In resolution 1296 it confirmed that the deliberate denial of humanitarian access is a violation of international law which may constitute a threat to international peace and security.233 Under explicit reference to the Geneva Conventions and the Hague Regulations, resolution 1674 further urges “all those concernedto allow fullunimpeded access by humanitarian personnel to civilians in need of assistance insituations of armed conflict”, thereby extending this obligation to non-State actors.234 Accordingly, the 2005 ICRC Study on Customary International Humanitarian Law makes extensive references to the practice of the Security Council when establishing that the obligation to grant humanitarian access has attained a customary character with respect to international and internal armed conflicts.235 By viewing both this obligation and the corresponding subjective right as a part of the legal norm of unimpeded humanitarian access,236 it can certainly be suggested that the Security Council has also contributed to the development of a right to access of humanitarian actors. Needless to say that in cases where the consent of the responsible authorities is lacking, any implementation of this right will inevitably depend on the support of the Security Council and its political intricacies.

Safety of Humanitarian Personnel

  • 237   See, for instance, Geneva Convention IV, Articles 2 and 6; Additional Protocol I, Art. 51 (2), Ar (...)
  • 238   Article 8 (2) lit. b (iii) of the ICC Statute.

34In addition to access for humanitarian assistance, the safety of humanitarian personnel has become an increasingly important focus of the Security Council’s actions. Relief workers are often exposed to personal dangers such as kidnapping, threats, aerial bombings, and fighting between different factions when providing protection or bringing assistance to threatened populations in conflict-stricken areas. Intentional attacks against personnel, installations, goods and services involved in humanitarian assistance may constitute serious breaches of international law, especially international humanitarian law.237 Article 8 (2) lit. b of the ICC Statute even identifies attacks deliberately directed against personnel involved in humanitarian assistance as war crimes.238 In this respect, the Secretary-General in his first report on the protection of civilians in armed conflict emphasized the relevancy of both aspects, humanitarian access and safety, for the effective provision of humanitarian assistance and recommended to the Security Council to

  • 239 Report of the Secretary-General on the protection of civilians, UN Doc. S/1999/957 (8 Sept. 1999), (...)

 “[u]nderscore in its resolutions, at the onset of a conflict, the imperative for civilian populations to have unimpeded access to humanitarian assistance and for concerned parties, including non-state actors, to cooperate fully with the United Nations humanitarian coordinator in providing such access, as well as to guarantee the security of humanitarian organizations, in accordance with the principles of humanity, neutrality and impartiality, and insist that failure to comply will result in the imposition of targeted sanctions.”239

  • 240   For the relevant resolutions see supra notes 221 to 227.
  • 241   UN Doc. S/RES/1319 (20 Sept. of 2000), para. 3.
  • 242 Ibid., para. 5 (emphasis added).

35Security Council resolutions concerning access to humanitarian relief usually also include demands for the safety of humanitarian personnel and other personnel in the delivery of such assistance.240 In certain cases, the Security Council has even adopted resolutions that exclusively address particularly serious attacks against relief workers. In resolution 1319 (2000), for instance, the Council dealt with the murder of three UNHCR staff members in East Timor. After establishing that the murders committed were grave violations of international humanitarian and human rights law,241 the Security Council also referred to UNHCR’s future involvement in the conflict by “stressing that UNHCR workers cannot return to West Timor until there is a credible security guarantee, including real progress towards disarming and disbanding the militias”.242 Although the Security Council did not give direct instructions to UNHCR, the Council’s findings were clearly made with the authority of its primary responsibility over issues of international peace and security.

  • 243   See Wood, supra note 58, at 78.
  • 244   1994 Convention on the Safety of United Nations and Associated Personnel, 2051 UNTS 363 (15 Jan. (...)
  • 245   Article 10 of the Convention on the Safety of UN Personnel (establishment of jurisdiction).
  • 246   Article 1 lit. c) i) and ii) of the Convention on the Safety of UN Personnel. However, UN operati (...)

36As a result of the Security Council’s extensive practice in the early 1990s, especially in the former Yugoslavia, it was proposed to strengthen the norms on the safety of humanitarian personnel by having the Council declare that attacks against UN personnel constitute international crimes, and that States should prosecute or extradite those who commit them.243 However, this approach was subsequently set aside in favor of action by the General Assembly to adopt a Convention on the Safety of United Nations and Associated Personnel.244 The Convention, which entered into force in 1999, requires or allows every State party to establish its jurisdiction over an attack on UN or associated personnel engaged in a UN operation under certain conditions.245 The Convention also refers to the Security Council and its field of competence by limiting the scope of application to cases where first, the operation serves the purpose of maintaining or restoring international peace and security, or second, the Security Council or the General Assembly has declared that there exists an exceptional risk to the safety of the personnel participating in the operation.246 In contrast to the 1951 Convention, the Security Council was therefore assigned a clear role in the legal and institutional framework set out in the Convention on the Safety of UN Personnel, to whose elaboration it provided decisive stimulus.

  • 247   UN Doc. S/RES/1502 (26 Aug. 2003). In the preamble to this resolution, the Security Council makes (...)
  • 248 Ibid., para. 3.
  • 249   In a recent resolution concerning the Mission of the African Union to Somalia (AMISOM), the Secur (...)
  • 250   UN Doc. 1502 (26 Aug. 2003), preamble. Although the resolutions on the protection of civilians in (...)
  • 251   See Goodwin-Gill and McAdam, supra note 15, at 471 (original emphasis).

37In addition to its role in the Convention on the Safety of UN Personnel, incidents such as the killing of humanitarian personnel in East Timor and the attack against the headquarters of the United Nations Assistance Mission in Iraq (UNAMI) in 2003 eventually led the Security Council to adopt its own thematic resolution 1502 on the safety of humanitarian personnel in conflict zones.247 In this resolution, it reaffirmed the obligation of all parties involved in an armed conflict to comply fully with the rules and principles of international law applicable to them relating to the protection of humanitarian personnel and United Nations and its associated personnel, in particular international humanitarian law, human rights law and refugee law.248 The Council also expressed its determination to take several steps to ensure respect for the Convention on the Safety of UN Personnel, for example, by requesting the Secretary-General to incorporate certain provisions of the Convention into existing status-of-forces, status-of-missions and host country agreements. The Security Council itself regularly reiterates resolution 1502 in its peacekeeping mandates.249 By ensuring mutual references between resolution 1502 and its decisions on the protection of civilians, the Council has additionally established a coherent approach on humanitarian action, reinforcing the normative impact of its actions on the law on humanitarian assistance in contemporary conflict situations.250 The Security Council has thus been a crucial actor in what Goodwin-Gill and McAdam describe as “the emergence of the principle of humanitarian access, on the one hand, and a rule protecting the safety of humanitarian relief workers, on the other”.251

2.3 Strengthening the Search for Durable Solutions after Displacement

  • 252   Article 1C of the 1951 Convention.
  • 253   Türk emphasizes that despite the lack of express references to solutions, the status and standard (...)
  • 254   UNHCR Statute, paras. 1 and 8 (c).
  • 255   UNHCR Statute, para. 9.
  • 256   UN Doc. A/RES/38/121 (16 Dec. 1983), preamble, underlining that voluntary repatriation is the “th (...)

38The ultimate goal of international protection is to find a satisfactory and durable solution for the situation following forced displacement. This goal can only be achieved when the need for international protection ceases to exist and national protection – be it by the country of origin or by another country – is sustainable and fully effective. The international protection regime recognizes three durable solutions: voluntary repatriation, local integration, and resettlement in a third country. While the so-called cessation clauses in the 1951 Convention acknowledge the necessity for refugee status to end,252 the Convention only implicitly mentions solutions, notably local integration, by outlining the basic treatment of refugees and providing for facilitated naturalization.253 In contrast to the 1951 Convention, the UNHCR Statute explicitly stipulates that UNHCR shall assume the function of seeking permanent solutions, by assisting governments and private organizations “to facilitate repatriation and assimilation within new communities”254 and by engaging in “such additional activities, including repatriation and resettlement, as the General Assembly may determine, within the limits of the resources placed at his disposal”.255 Although the UNHCR Statute does not establish any particular hierarchy among these three solutions, voluntary repatriation has developed to be the preferred solution in UNHCR’s operations since the beginning of the 1980s when the General Assembly began to request UNHCR to carry out functions in relation to large-scale repatriation operations.256 By further expanding UNHCR’s mandate to assist countries of origin in the integration of returning refugees, the General Assembly has thus created a another interface between international refugee protection and the primary responsibility of the Security Council: the restoration of international peace and security.

  • 257 Türk, supra note 207, at 516.
  • 258   See, for instance, UN Doc. S/RES/1785 (21 Nov. 2007), preamble, in which the Security Council emp (...)
  • 259   See generally B.S. Chimni, ‘Post-Conflict Peace-Building and the Return of Refugees: Concepts Pra (...)
  • 260   See K. Newland and D.W. Meyers, ‘Peacekeeping and Refugee Relief’, (1998) 5 International Peaceke (...)
  • 261   V. Chetail, ‘Voluntary Repatriation in Public International Law: Contents and Contents, (2004) 23 (...)

39While recognizing the importance of the voluntary and safe return of refugees as a precondition for the restoration of peace and security, the Security Council has consequently begun to support UNHCR and countries of origin in promoting the conditions conducive to return. As Volker Türk rightly notes “[c]reating the conditions for return [..] remains fundamentally a political process which needs to be addressed at that level and should not be confused with humanitarian action.”257 Accordingly, the elimination of the root causes of displacement through the Security Council’s political actions extends to the post-conflict phase in which the Council pursues the objective of creating a sustainable peace.258 Only if relapse into conflict is prevented, will the local population return and engage in the political, social and economic reconstruction of its country.259 In the context of its efforts to support this post-conflict construction the Security Council has therefore given a central place to the successful reintegration of refugees and those internally displaced. Most of the large-scale refugee repatriations in the 1990s took place in the context of comprehensive peace plans, promoted by the Security Council and implemented through its peacekeeping or peace-building missions.260 By reiterating the importance of the right to return as the “legal precondition to realize voluntary repatriation”,261 the Security Council has thereby not only promoted durable solutions to displacement itself, but also solutions to property issues which are often equally important for the creation of a sustainable peace.

2.3.1 Solutions to Displacement: Mass Exodus and the Right to Return

  • 262   In Case 41/74, Van Duyn v. Home Office [1975] 1 CMLR 1, at 18, the European Court of Justice cons (...)
  • 263   Article 13 (2) of the UDHR states: “Everyone has the right to leave any country, including his ow (...)
  • 264   See G.S. Goodwin-Gill, ‘Right to Leave, Return and Remain’, in V. Gowlland-Debbas (ed.), The Prob (...)
  • 265   See Chetail, supra note 261, at 11.
  • 266   The General Assembly has recognized both the inherently political dimension of the problem and th (...)
  • 267   See, for instance, H. Hannum, The Right to Leave and Return in International Law and Practice (19 (...)

40The existence of the right to return and the corresponding duty to admit are beyond dispute.262 Explicitly stipulated in Article 13 (2) of the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR),263 the right to return is also implied in the prohibition of arbitrary arrest, detention and exile as well as in the prohibition of expulsion of nationals.264 Although the right to return does accordingly not originate in international refugee law per se, it illustrates how international refugee protection has appropriated this human right to fill the institutional policy of voluntary repatriation with normative content.265 Nonetheless, the right to return is often denied or qualified in the broader context of persecution, human rights violations and situations in which political considerations prevail over legal entitlements.266 More importantly, while the right to return is largely uncontested in its individual dimension, the question whether this right also applies to cases of mass displacement is still controversial.267 As a consequence, it is normatively significant that the Security Council has consistently reiterated the right to return in situations of mass exodus when the maintenance of international peace and security has been at stake, thereby justifying UNHCR’s voluntary repatriation operations.

  • 268   See UN Doc. A/RES/3212 (XXIX) (1 Nov. 1974), para. 5, endorsed by UN Doc. S/RES/365 (13 Dec. 1974 (...)
  • 269   UN Doc. S/RES/687 (3 Apr. 1991), para. 30 and 31. The statement was obviously made with regard to (...)
  • 270   UN Doc. S/RES/820 (17 Apr. 1993), para. 7.
  • 271   On Tajikistan see UN Doc. S/RES/999 (16 Jun. 1995), para. 8; on Rwanda see UN Doc. S/RES/1078 (9 (...)
  • 272 Ibid., para. 4 (emphasis added).

41The Security Council emphasized the right to return for the first time with regard to Cyprus in 1974, following a related General Assembly resolution, by calling for urgent measures to permit refugees who wished to, to return to their homes.268 Whereas these calls have been reiterated in vain for more than three decades, the Council began to increasingly and more successfully refer to the right to return in the 1990s. In the Gulf War cease-fire resolution 687 of 3April 1991, for instance, the Security Council requested Iraq to co-operate with the ICRC for the return or repatriation of all Kuwaiti and third country nationals, by providing lists of such persons as well as facilitating access to those persons and the search of unaccounted persons.269 In resolution 820 on the situation in Bosnia-Herzegovina, the Council then expressly stressed that “all displaced persons have the right to return in peace to their former homes and should be assisted to do so”,270 and replicated such statements in many other situations such as Tajikistan, Rwanda, Georgia/Abkhazia, Kosovo or East Timor.271 While the right to return has hence become an integral part of its post-conflict resolutions, it is remarkable that the Security Council has also acknowledged the need for parallel programmes to resettle individualswho choose not to return”.272

  • 273   See Cambodian Information Center, Agreements on a Comprehensive Political Settlement of the Cambo (...)
  • 274   UN Doc. S/RES/668 (20 Sept. 1990).
  • 275   Agreements on a Comprehensive Political Settlement of the Cambodian Conflict, 31 ILM 183, 184 (23 (...)

42Following such statements the Security Council has further strengthened the right to return in situations of mass exodus through its participation in the design and conclusion of comprehensive peace agreements. The 1989/1990 Paris Conference on Cambodia, for instance, was dominated by the permanent five Security Council members who initiated a series of high-level meetings successively in New York and then in Paris to discuss the situation in Cambodia and elaborate a general peace treaty.273 On the basis of the “Framework for a Comprehensive Political Settlement of the Cambodia Conflict”, endorsed by the Security Council in resolution 668 (1990),274 the Permanent Five agreed on a text containing a general agreement with detailed annexes, inter alia, covering the proposed mandate for the United Nations Transitional Authority in Cambodia (UNTAC) and the repatriation of Cambodian refugees and displaced persons.275 In Annex 4 of the Agreements on a Comprehensive Political Settlement of the Cambodian Conflict, the parties agreed that:

  • 276 Cambodia Agreements, Annex 4: Repatriation of Cambodian Refugees and Displaced Persons, para. 1.

“every assistance will need to be given to Cambodian refugees and displaced persons as well as to countries of temporary refuge and the country of origin in order to facilitate the voluntary return of all Cambodian refugees and displaced persons in a peaceful and orderly manner. It must also be ensured that there would be no residual problems for the countries of temporary refuges. The country of origin with responsibility towards its own people will accept their return as conditions become conducive.”276

  • 277 With UN Doc. S/RES/717 (16 Oct. 1991) approved the draft text of the agreements prior to their fin (...)
  • 278   With regard to the Dayton Accords, Boisson de Chazournes notes that “le Comité international de l (...)
  • 279 The signing of the General Framework Agreement for Peace in Bosnia and Herzegovina, 35 ILM 75 (15 (...)

43In many ways, the Cambodia Peace Agreements set the stage for the active involvement of the Security Council in subsequent peace processes.277 The Security Council was subsequently also an important actor in the conclusion of other peace agreements such as the Dayton Peace Accords between the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia (FRY), and the Rambouillet Accords on the peace in Kosovo.278 In general, these peace agreements included quite elaborate annexes on the return of refugees and internally displaced persons, often followed by Security Council resolutions that reaffirm the right to return.279

  • 280   Cambodia Agreements, Annex 4: Repatriation of Cambodian Refugees and Displaced Persons, paras. 8- (...)
  • 281   UN Doc. S/RES/1470 (28 Mar. 2003), para. 16. The Abuja Ceasefire Agreement was signed between the (...)

44After the elaboration of these peace accords, the Security Council’s peace operations exerted an even more substantive influence on the normative content of the right to return by implementing the displacement-related provisions of the agreements. Annex 4 of the Cambodia Peace Agreements, for example, gives UNHCR the principal role in facilitating the repatriation of Cambodian refugees and displaced persons but also emphasizes the supervisory function of UNTAC.280 The same observation can be made with regard to other peace agreements. The UN and African Union Mission in Sierra Leone (UNAMSIL), for instance, was mandated to support the voluntary return of refugees and displaced persons to Sierra Leone in fulfillment of the commitments of stakeholders to the Abuja Ceasefire Agreement of 10 November 2000.281

  • 282   UN Doc. S/PRST/2005/20 (26 May 2005), at 1.
  • 283   See Newland and Meyers, supra note 260, at 27. Newland and Meyers note that “[d]espite problems a (...)

45While these peace operations have facilitated the disarmament, demobilization, repatriation, reintegration and rehabilitation (DDRRR) of former combatants under international humanitarian law,282 they have also made refugee return safer by participating directly in UNHCR’s repatriation operations, accompanying convoys of returnees, guarding reception centers and monitoring the welfare of returning refugees.283 Under normative considerations, it is noteworthy that this increasingly close cooperation between UNHCR and UN peace operations has also seen a refinement in the Security Council’s language. Its references to return in its peacekeeping mandates now include normative qualifications such as “voluntary”, “safe”, “dignified” and “sustainable”. In resolution 1784 on the extension of the UN Mission in Sudan, for instance, the Security Council

  • 284   UN Doc. S/RES/1812 (30 Apr. 2008), para. 18 (emphasis added).

[w]elcomes the continuing organized returns of internally displaced persons from Khartoum to Southern Kordofan and Southern Sudan and of refugees from countries of asylum to Southern Sudan, and encourages the promotion of efforts, including the provision of necessary resources to the Office of the United Nations High Commissioner for Refugees and implementing partners, to ensure that such returns are voluntary and sustainable, and further requests the Mission, within its capabilities and areas of deployment, to coordinate with partners to facilitate sustainable returns, including by helping to establish the necessary security conditions;284

  • 285   UN Doc. S/RES/1770 (10 Aug. 2007), preamble.
  • 286 Ibid., para. 2(b) (i). Of further relevance in this context is UN Doc. S/RES/1790 (18 Dec. 2007), p (...)
  • 287   See, for instance, UN Doc. S/RES/1483 (22 May 2003), para. 8 (b) (on “the safe, orderly, and volu (...)

46Another pertinent example is resolution 1770 (2007) on the UN Mission in Iraq in which the Council equally reaffirmed that all parties should take all feasible steps to ensure the protection of affected civilians and should create conditions conducive to the “voluntary, safe, dignified and sustainable return of refugees and internally displaced persons,”285 and decided that the Special Representative of the Secretary-General for Iraq shall advise, support and assist the government of Iraq towards that end.286 Similar clauses are included in all other relevant Security Council resolutions that cover the right to return and its implementation through UN peace operations.287

  • 288   UNHCR, Handbook on Voluntary Repatriation: International Protection (1996), section 2.4; UN Doc. (...)
  • 289   UN Doc. A/RES/1674 (26 April 2006), para. 16.

47Although these resolutions on the return of refugees do not in general make references to voluntary repatriation, the Security Council has clearly begun to employ the language of UNHCR, notably its 1996 Handbook on Voluntary Repatriation, and relevant General Assembly resolutions which refer to “return in safety and with dignity” when describing voluntary repatriation as a durable solution.288 In its most recent resolution on the protection of civilians in armed conflict, the Council confirms its practice of ensuring that the mandates of United Nationspeacekeeping, political and peace-building missions include provisions on “the creation of conditions conducive to the voluntary, safe, dignified andsustainable return of refugees and internally displaced persons”.289 After having contributed to the consolidation of the right to return in cases of mass displacement, the practice of the Security Council has thus continued to develop the normative content of this right by specifying the high degree of convergence between human rights law and refugee law in the vague legal concept of voluntary repatriation.

2.3.2 Solutions to Property Issues: Rights to Restitution and/or Compensation?

  • 290   UN Doc. E/CN.4/Sub.2/1997/31 (27 Mar. 1997), at 4. The Committee on the Elimination of Racial Dis (...)

48In situations of mass displacements, caused by armed conflict, the right to return has often been linked with the right to restitution and compensation.290 As early as 1948, the General Assembly in resolution 194 (III), which established the UN Conciliation Commission for Palestine, in para. 11:

  • 291   UN Doc. A/RES/194 (III) (11 Dec. 1948), para. 11. The paragraph continues by instructing “the Con (...)

 “[r]esolves that the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law and equity, should be made good by the Governments or authorities;”291

  • 292   UN Doc. A/RES/36/148 (16 Dec. 1981), para. 3.
  • 293   See Goodwin-Gill and McAdam, supra note 15, at 489. See also L.T. Lee, ‘The Declaration of Princi (...)

49In 1986, the General Assembly’s initiative on cooperation to avert new flows of refugees reaffirmed both “the right of refugees to return to their homes in their homelands”, which implies restitution, and also the right of those who do not wish to return to receive adequate compensation.292 Yet, while the right to return has a stable foundation in international law, the rights to restitution and compensation have been considered as normatively underdeveloped,293 not least because their normative content lacks substantive clarity. It is, for instance, not yet possible to determine a clear rule on whether the right to compensation only implies compensation in lieu of return or whether compensation can be combined with return and restitution by being paid for loss and damage to property as indicated in resolution 194 (III). Nonetheless, while the right to compensation remains controversial, the right to restitution has received increasing recognition in the practice of States and organs of international organizations, not only as corollary of the right to return but also as an separate right in international law.

  • 294   See Tomuschat, supra note 102, at 70, referring to the following resolutions on Cyprus: UN Doc. A (...)
  • 295   UN Doc. A/RES/1781 (15 Oct. 2007), para. 15.

50The practice of the Security Council has been considered important in this evolution from the very beginning as its pronouncements on the right to return confirmed that the content of this right went beyond the mere restoration of persons to their countries of origin, often far away from their actual homes. More precisely, the right to restitution has been said to be included in the Security Council’s reiterations of the right of refugees and displaced persons ‘to return to their homes’ which implies a right to recover the property owned by them at the time of their departure.294 In a recent resolution on the situation in Georgia, the Security Council confirmed this interpretation by emphasizing the importance of internally displaced persons being able to return “to their homes and property” as well as the fact that “individual property rights have not been affected by the fact that owners had to flee during the conflict and that the residency rights and the identity of those owners will be respected”.295

  • 296   UN Doc. S/RES/820 (17 Apr. 1993), para. 7.
  • 297   Annex 7 of the Dayton Accords.
  • 298   Article XI, Annex 7 of the Dayton Accords (emphasis added).
  • 299   Article XII (3), Annex 7 of the Dayton Accords.

51This recent statement on Georgia is clearly the result of a gradual development in the Council’s practice, initiated by the Security Council’s early statements on Cyprus and continued in the 1990s with its involvement in the post-conflict design of Bosnia-Herzegovina. In resolution 820, the Security Council thus stressed that “all statements or commitments made under duress, particularly those relating to land and property, are wholly null and void and that all displaced persons have the right to return in peace to their former homes and should be assisted to do so”.296 Considering the importance of property issues in the Yugoslav conflict, Annex 7 of the Dayton Accords on refugees and displaced persons emphasized the right to return and established a Commission for the Restitution of their Property Claims (CRPC).297 According to Article X (5) of Annex 7 to the Dayton Accords, the Commission shall cooperate with other entities agreed by the Parties, or authorized by the Security Council, or established by the Dayton Accords. The CRPC is mandated to “receive and decide any claims for real property in Bosnia and Herzegovina, where the property has not voluntarily been sold or otherwise transferred since April 1, 1992, and where the claimant does not now enjoy possession of that property. Claims may be for return of the property or just compensation in lieu of return.”298 While the compensation mechanism has not quite worked in practice, it is important to note that the CRPC mandate, which gives the Commission extensive powers to determine the lawful owner of any property, incorporated the language of resolution 820 by stipulating that the Commission “shall not recognize as valid any illegal property transaction, including any transfer that was made under duress, in exchange for exit permission or documents, or that was otherwise in connection with ethnic cleansing.”299

  • 300   See R.C. Williams, ‘Guiding Principle 29 and the Right to Restitution’, (2008) Forced Migration R (...)
  • 301   Arusha Peace and Reconciliation Agreement for Burundi (28 Aug. 2000) Article 18.3, accompanied an (...)
  • 302   UNMIK Regulation 1999/23 (15 Nov. 1999) established the Housing and Property Directorate (HPD) an (...)
  • 303   Section 7.2 of UNTAET Regulation 1999/1 that “UNTAET shall also administer any property, both as (...)
  • 304   Report of the Secretary-General on the protection of civilians, S/2007/643 (28 Oct. 2007), para. (...)

52After the Commission on Restitution of Property Claims in Bosnia led to the restitution of some 200,000 homes, and the first real precedent for large-scale post-conflict property restitution as a right,300 the right to restitution has been included as a standard component in various other peace agreements, such as in Burundi, Nepal and Darfur, in whose conclusion the Security Council has had more or less ownership.301 However, with the exception of the Darfur Peace Agreement, most property restitutions mechanisms were rather established on an ad hoc basis and often directly involved UN peace-building missions. The United Nations Interim Administration Mission in Kosovo (UNMIK), for instance, administered and managed the Housing and Property Directorate and Claims Commission, initially established by the UN Human Settlements Programme, which has decided over numerous property claims.302 The Land and Property Unit within the UN Transitional Administration in East Timor (UNTAET) equally developed proposals for institutionally addressing property questions;303 indeed, grievances that were left unaddressed are considered one of the reasons for the recent political violence in East-Timor.304

  • 305 Final Report of the Special Rapporteur on Housing and Property Restitution in the Context of the Re (...)
  • 306   Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Viol (...)
  • 307   FAO/IDMC/OCHA/OHCHR/UN-Habitat/UNHCR, Handbook on Housing and Property Restitution for Refugees a (...)

53The practice of UNTAET, UNMIK and other property restitution mechanisms was eventually codified in the 2005 “Pinheiro Principles on Housing and Property Restitution for Refugees and Displaced Persons”,305 and to a certain extent also in the 2006 “Basic Guidelines and Principles on the Right to a Remedy and Reparation”.306 Whereas the Handbook on the Pinheiro Principles makes extensive reference to UNTAET and UNMIK, the Principles emphasize that “States are expected to demonstrably prioritise restitution rights”, and should therefore “not view rights to restitution and rights to compensation asnecessarily of the same value when seeking durable solutions.”307 The Security Council peace operations have thus directly contributed to establishing the right to restitution as a distinct, primary norm of international law, which takes precedence over compensation and represents a standard component of sustainable conflict resolution and post-conflict reconstruction.

  • 308   Report of the Secretary-General on the protection of civilians, UN Doc. S/2007/643 (28 Oct. 2007) (...)
  • 309 Ibid., para. 57.

54Nonetheless, not all peace operations mandated by the Security Council address these property-related activities where necessary. In Afghanistan, UNHCR and non-governmental organizations have engaged in activities to promote and assist restitution, including the provision of legal aid to returnees, on their own initiative. In Burundi, the Peace-building Fund, through UNHCR, has provided initial financial support to establish a national property claims mechanism.308 In view of the importance of property restitution for sustainable peace, the Secretary-General therefore called for a more consistent, systematic and comprehensive treatment of housing, land and property issues in his 2007 report on the protection of civilians in armed conflict. In this report, the Secretary-General specifically requested the Security Council to take “[r]estorative actions, such as the inclusion of the right to return and restitution of housing, land and property in all future peace agreements and all relevant Council resolutions, and the inclusion of housing, land and property issues as an integral part of future peacekeeping and other relevant missions, with provisions for dedicated, expert capacity to address these issues.”309 Although the Security Council does not refer to the right to restitution as such in its resolutions, its consistent reiterations of the right to return and the establishment of land and property units in its peace-building missions, in particular in Kosovo and East Timor, will probably lead to the inclusion of this norm in the Security Council’s framework on civilians in armed conflict which would further enhance its consolidation as an independent right in customary international law. The progressive stance that the Security Council has taken over the past decade in enforcing, developing and sometimes even making normative standards pertaining to human security certainly warrants predictions about the strengthening of international refugee protection through its future practice.

Notes

95   See generally P. Tavernier, ‘Les déclarations du Président du Conseil de Sécurité’, (1993) 39
AFDI 86. See also K.C. Wellens, Resolutions and Statements of the United Nations Security Council (1946-1989) : A Thematic Guide (1990).

96   The three resolutions adopted by the Security Council on the “Protection of Civilians in Armed Conflict” are UN Doc. 1265 (17 Sept.); UN Doc. 1296 (19 Apr. 2000); UN Doc. S/RES/1674 (28 Apr. 2006). These resolutions were elaborated on the basis of reports by the Secretary-General. For the purpose of adopting its first resolution on the protection of civilians, the Council took into account the Report of the Secretary-General to the Security Council on the protection of civilians in armed conflict (UN Doc. S/1999/957 (8 Sept. 1999)), but also his report on causes of conflict and the promotion of durable peace and sustainable development in Africa (UN Doc. S/1999/308-A/52/871 (25 Sept. 1997)) and his report on the protection for humanitarian assistance to refugees and others in conflict situations (UN Doc. S/1998/883 (22 Sept. 1998)). For a comprehensive overview see Security Council Report, Cross-Cutting Report: Protection of Civilians (2008).

97   Despite their notable differences, all of these fields of law have one common objective, which leads to overlapping and complementary functions: the protection of the individual. In addition to international humanitarian law and human rights, international criminal law should be mentioned in this context. However, an analysis of the relationship between these fields of law would exceed the scope of this study. On the relevance of international humanitarian law and human rights for international refugee protection see generally A. Edwards, ‘Crossing Legal Borders: The Interface Between Refugee Law, Human Rights Law and Humanitarian Law in the “International Protection” of Refugees’, in R. Arnold and N. Quénivet (eds.), International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law (2008), 421; M. Veuthey, ‘Réfugiés,
droits de l’homme, droit humanitaire, paix et sécurité’, in V. Gowlland and L. Samson (eds.), Problems and Prospects of Refugee Law (1992), 49.

98   The concept of human security does not have a commonly agreed definition. However it is increasingly used in the context of international refugee protection. See A. Hammerstad, ‘Whose Security? UNHCR, Refugee Protection and State Security After the Cold War, (2000), 31 Security Dialogue 391; S. Schmeidl, ‘The Early Warning of Forced Migration: State or Human Security?’, in E. Newman and J. van Selm (eds.), Refugees and Forced Displacement: International Security, Human Vulnerability, and the State (2003), 130; G.S. Goodwin Gill, ‘Forced Migration, Refugee Rights and Security’, in J. McAdam (ed.), Forced Migration, Human Rights and Security (2008), 1. For a critical voice see G. Noll, ‘Securitizing Sovereignty? States, Refugees, and the Regionalization of International Law’, in E. Newman and J. van Selm (eds.), Refugees and Forced Displacement: International Security, Human Vulnerability, and the State (2003), 277. For a discussion of the concept of human security see F.O. Hampson and C.K. Penny, ‘Human Security’, in T.G. Weiss and S. Daws (eds.), The Oxford Handbook on the United Nations (2007), 539 at 539, 554.

99   See Section 2.3, infra.

100   UN Doc. A/RES/36/148 (16 Dec. 1982), preamble. 5 (emphasis added).

101   In 1980 the General-Assembly adopted UN Doc. A/RES/35/124 (11 Dec. 1980) on “International Cooperation to Avert New Flows of Refugees” which led to the above-mentioned Group of Governmental Experts. The UN Human Rights Commissions appointed a Special Rapporteur on Human Rights and Mass Exoduses in 1981 who submitted in a fundamental report on the topic in 1982 (UN Human Rights Commission, Human Rights and Mass Exoduses, Study by Mr.
Sadruddin Ada Khan, Special Rapporteur UN Doc. E/CN.4/1503 (17 Feb. 1982). These activities eventually also led to the appointment of a Special Rapporteur on Internal Displacement whose role will be further discussed in Section 2.2, subheading ‘Internally Displaced Persons’, infra.

102   See C. Tomuschat, ‘State Responsibility and the Country of Origin’, in V. Gowlland-Debbas (ed.), The Problem of Refugees in the Light of Contemporary International Law Issues (1994), 59 at 59.

103   UNHCR Executive Committee Conclusion No. 74 (XLV) (1991), paras. (ii), (vii). In this context, ExCom also emphasized the need for a more active and effective utilization by States and UNHCR of United Nations and other qualified expert bodies.

104   UNHCR, Note on International Protection, UN Doc. A/AC.96/777 (7 Sept. 1991), para. 49.

105   UNHCR defined prevention as “the elimination of causes of departure, rather than the erection of barriers which leave causes intact, but make departure impossible.” Note on International Protection, UN Doc. A/AC.96/777 (9 Dec. 1991), para. 43. It was later emphasized that prevention sought to “attenuate the cause of departure or contain cross-border movements of populations” but that it was not “a substitute for asylum”: UN Doc. A/AC.96/799 (25 Jul. 1992), para. 26. Although preventive protection was a central feature of UNHCR’s strategy to find solutions to refugee problems between 1990 and 1993/4, it does not appear in more recent UNHCR documents anymore. However, prevention remains an important component of the agency’s activities and manifests itself, inter alia, in the following activities: reinforcing national protection capacities; addressing the problem of statelessness; protecting internally displaced persons; consolidating solutions in war-torn societies; organizing mass information campaigns to address broader problems of migration; and alerting the international community to the causes of forced displacement: See Follow-up to ECOSOC Resolution 1995/56: UNHCR Activities in Relation to Prevention, EC/46/SC/CRP.33
(28 May 1996).

106   Phuong notes that UNHCR’s initiatives therefore have to be linked with political efforts to protect the human rights of the civilian population at large and to resolve the conflict where it is the cause of displacement. See C. Phuong, International Protection for Internally Displaced Persons (2004), 123.

107   Tomuschat, for instance, characterizes this solution as “almost unchallengeable in theory” but dismisses it as “hard to translate into practice” since the Council has never again taken the view that a flow of refugees may constitute a threat to international peace and security after Iraq. While it is acknowledged that Tomuschat came to this conclusion in 1994 and could not take into account later developments, his assessment is still quite narrow in focus, especially as the Security Council tends to avoid articulating the precise nature of the threats to the peace and often confines itself to referring to the context or background of the situation (J.M. Farrall, United Nations Sanctions and the Rule of Law (2007), 85). See Tomuschat, supra note 102, at 77. See also Freeman, supra note 10, at 568; Dowty and Loescher, at supra note 10; Phuong, supra note 106, at 123. See generally on the responsibility of the country of origin, V. Gowlland-Debbas, ‘La responsabilité internationale de l’Etat d’origine pour des flux de réfugiés,’ in A. Pedone (ed.), Droit d’asile et des réfugiés (1997), 93.

108   UN Doc. S/RES/232 (16 Dec. 1966) and UN Doc. S/RES/253 (29 May 1968) on Southern Rhodesia; UN Doc. S/RES/488 (4 Nov. 1977) on South Africa.

109   See Dowty and Loescher, supra note 10, at 70-71.

110   Phuong, supra note 106, at 223.

111   UN Doc. S/PV.3238 (16 Jun. 1993). In the end, however, China did vote in favor of the resolution for two reasons. First, the “unique and exceptional” character of the situation, specifically identified by the representative of Pakistan as “the request by the legitimate government of Haiti that the Security Council make universal and mandatory the measures recommended by OAS”. Second, China and others argued that the prior action on the part of Organization of American States (OAS) and the General Assembly had established a framework that “warrant[ed] the extraordinary consideration of the Security Council and the equally extraordinary application of measures provided for in Chapter VII”.

112   UN Doc. S/RES/841 (13 Jun. 1993), preamble.

113 Ibid.

114   UN Doc. S/RES/940 (31 Jul. 1994), preamble.

115   UN Doc. S/RES/940 (31 Jul. 1994), para. 4.

116   Article 2 (7) of the UN Charter. In the past, intervention authorized by the Security Council in the form of initiatives to protect internally displaced persons, provide humanitarian relief, and hold the State inducing displacement responsible, have been attacked as unlawful in the light of the doctrine of non-intervention. UN Doc. S/PV.2982 (5 Apr. 1991), 46th session, 2982 meeting at 17, 27, 28-30, 31, 44-45, 63 (statements by Iraq, Yemen, Zimbabwe, Cuba, India and China).

117   UN Doc. S/RES/814 (26 Mar. 1993), preamble. The resolution subsequently established the UN Operation in Somalia II (UNOSOM II) and equipped it with enforcement powers inter alia to support the arms embargo imposed by resolution 733 (UN Doc. S/RES/733 (23 Jan. 1992), para. 5) and “to assist in the repatriation of refugees and the assisted resettlement of displaced persons […], paying particular attention to those areas where major instability continues to threaten peace and security in the region”.

118   UN Doc. S/RES/751 (24 Apr. 1992), preamble.

119   See S.M. Makinda, Seeking Peace from Chaos: Humanitarian Intervention in Somalia (1993), 61.

120   UN Doc. S/RES/1132 (8 Oct. 1997), preamble.

121 Ibid., para. 5-6; and UN Doc. 1171 (5 Jun. 1998), para. 5. The petroleum embargo was lifted in S/RES/1156 (16 Mar. 1998). The arms embargo and the travel ban are still in force.

122   UN Doc. S/RES/827 (25 May 1993) on the establishment of the ICTY and UN Doc. S/RES/955 (8 Nov. 1994) on the establishment of the ICTR.

123   ICTR Statute, Article 3 lit. d) and h); ICTY Statute, Article 5 lit. d) and h). See also Article 7 lit. d) and h) of the Rome Statute of the International Criminal Court, 2187 UNTS 90 (1 July 2002) [hereinafter: ICC Statute]. See S. Jaquemet, ‘The Cross-Fertilization of International Humanitarian Law and International Refugee Law’, (2001) 83 International Review of the Red Cross 651 at 673.

124   Prosecutor v. Kupreskic, Judgment, Case No. IT-95-16-T (14 Jan. 2000), paras. 588 and 589, in which the ICTY Trial Chamber II gives an interpretation of what is meant by the notion of “persecution” in international refugee law. See generally O. Swaak-Goldman, ‘Case Analysis: The Crime of Persecution in International Criminal Law’, (1998) 11 LYIL 145.

125   UN Doc. S/RES/787 (16 Nov. 1992), para. 2; UN Doc. S/RES/827 (25 May 1993), preamble.

126   On the meaning of “ethnic cleansing” see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 Feb. 2007, [2007] ICJ Rep., at 70, para. 190. See also Security Council resolution 918 concerning Rwanda in which the Council warned the warring factions that the killing of members of an ethnic group with the intention of destroying such a group, in whole or in part, “constitutes a crime under international law”, namely genocide: UN Doc. S/RES/918 (17 May 1994), preamble. Moreover, the Council strongly condemned the ongoing violence in Rwanda, and expressed its deep concern that the consequences of the violence in Rwanda, including the internal displacement of a significant percentage of the Rwandan population and the massive exodus of refugees, constituted a humanitarian crisis of “enormous proportions” (Ibid., preamble. 8).

127   See P. Bertrand, ‘An Operational Approach to International Refugee Protection’, (1994) 26 Cornell International Law Journal 495, at 499, 500.

128   UN Doc. S/RES/752 (15 May 1992), para. 6.

129   See Freeman, supra note 10, at 585.

130   See V. Gowlland-Debbas, ‘Security Council Enforcement Action and Issues of State Responsibility’, (1996) 43 International and Comparative Law Quarterly 55, at 63.

131   See, for instance: UN Doc. S/RES/1296 (19 Apr. 2000), para. 17 and UN Doc. S/RES/1674 (28 Apr. 2006), para. 7, on the protection of civilians in armed conflict; UN S/RES/1325 (31 Oct. 2000), para. 11 and UN Doc. S/RES/1820 (18 Jun. 2008), para. 4, on women, peace and security; UN Doc. 1261 (30 Aug. 1999), para. 3, and UN Doc. S/RES/1612 (26 Jul. 2005), preamble, on children and armed conflict.

132   See V. Gowlland-Debbas, ‘Concluding Reflections on the International Protection of Refugees’, in V. Chetail and V. Gowlland-Debbas (eds.), Switzerland and the International Protection of Refugees/La Suisse et la protection international des réfugiés (2002), 269 at 281. Gowlland-Debbas refers in this context to an emerging “ordre public” or international public policy which leads to the emergence of norms that are fundamental to the international community as whole.

133   See supra note 10.

134   See International Commission on Intervention and State Sovereignty, The Responsibility to Protect (2001). See generally E. Feller, ‘The Responsibility to Protect: Closing the Gaps in the International Protection Regime, in J. McAdam (ed.), Forced Migration, Human Rights and Security (2008), 283; A. Clapham, ‘The Responsibility to Protect – ‘Some Kind of Commitment’, in V. Chetail (ed.), Conflits, sécurité et coopération/Conflicts, Security and Cooperation. Liber Amicorum Victor-Yves Ghebali (2007); C. Stahn, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’, (2007) 101 AJIL 1.

135   UN Doc. A/RES/60/1 (16 Sept. 2005), paras. 138 and 139.

136   UN Doc. S/RES/1556 (30 Jul. 2004), preamble. It is revealing that the Security Council once again attributed major responsibility for the displacement to cross-border incursions to non-State actors, the Janjaweed militias.

137   UN Doc. S/RES/1556 (30 Jul. 2004), preamble.

138   UN Doc. S/RES/1706 (31 Aug. 2006), preamble.

139   UN Doc. S/RES/1674 (28 Apr. 2006), preamble and para. 4.

140   UN Doc. S/RES/1296 (19 Apr. 2000), para. 5.

141   In the case of East Timor (Portugal v. Australia), Preliminary Objections, Judgment of 30 Jun. 1995, [1995] ICJ Rep. 90, at 104, para. 32. the Court found it unnecessary to decide whether certain Security Council resolutions could be binding in nature, since it was sufficient, for the purposes of the question before the Court, to determine that the Security Council has not intended to establish the alleged violation.

142   In a critical consideration of the responsibility to protect, The Economist recently noted: “Perhaps its greatest drawback is also one of its touted merits: that it is so carefully crafted to conform with the current UN charter, which makes the Security Council the most important arbiter of war and peace.” The Economist, ‘Responsibility to protect: An idea whose time has come – and gone?’, 23 Jul. 2009, available at http://www.economist.com/world/international/displayStory.cfm?story_id
=14087788 (last visited on 24 Jul. 2009).

143   Report of the Secretary-General on “Implementing the Responsibility to Protect”, UN Doc. A/63/677 (12 Jan. 2009), at 26, para. 60. In this report, a “timely and decisive response” is only one of three pillars in the implementation of the responsibility to protect. The other two pillars are “the protection responsibilities of the State” and “international assistance and capacity-building”, which also emphasizes the role of humanitarian organizations such as UNHCR. The original conception of the responsibility to protect, as conceived by the ICISS, also divided the principle into three different phases: prevention, reaction, and rebuilding.

144   Kelsen, supra note 79, at 294.

145 Ibid., at 735.

146   See Gowlland-Debbas,supra note 130, at 63.

147   See Gowlland-Debbas, supra note 47, at 288.

148   See Bianchi, supra note 10.

149   See G. Schotten and A. Biehler, ‘The Role of the UN Security Council in Implementing International Humanitarian and Human Rights Law’, in R. Arnold and N. Quénivet (eds.), International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law (2008), 309 at 319; V. Gowlland-Debbas, supra note 47, at 287.

150   See L. Barnett, ‘Global Governance and Evolution of the International Refugee Regime’, (2002) 14 International Journal of Refugee Law 238, at 250. When first counted in 1982, only 1.2 million people were IDPs in 11 countries. By 1995, there were an estimated 20 to 25 million in more than 40 countries, almost twice as many as refugees at the time. See Norwegian Refugee Council and Internal Displacement Monitoring Centre, The Guiding Principles on Internal Displacement: Gen­eral Presentation, 1, available at http://www.internal-displacement.org/8025708F004BE3B1/
(httpInfoFiles)/78B532F31B492AE8C12571150046B5B0/$file/GP%20module%20handout%20GP%20presentation.pdf (last visited 10 Jun. 2009).

151   Report of the Secretary General on protection for humanitarian assistance to refugees and others in conflict situations, UN Doc. S/1998/883 (22 Sept. 1998), at 8, para. 34; UN Doc. S/PRST/1997/34 (19 Jun. 1997) (emphasis added). In line with this report, the term “conflict resolution” is used in the context of this study to describe the activities of the Security Council to resolve an on-going conflict, including its humanitarian aspects such the problem of refugees and IDPs. For a discussion of the role of the Security Council in conflict resolution see P. Wallensteen, Understanding Conflict Resolution: War, Peace and the Global System (2002), 239.

152   UN Doc. S/RES/1208 (19 Nov. 1998). The UNHCR Executive Committee has endorsed this resolution: see, for instance, UNHCR Executive Committee Conclusion No. 87 (L) (1999); para. q, and Conclusion No. 94 (LIII) (2002), preamble.

153   UN Doc. S/RES/1208 (19 Nov. 1998), paras. 1 and 3.

154 Ibid., paras. 5, 6 and 9.

155   UN Doc. S/RES/1296 (19 Apr. 2000), para. 14.

156   See Phuong, supra note 106, at 220.

157   Security concerns are often inherently linked to the security environment for refugees. Guerilla groups often attack refugees and displaced persons. With regard to the border region of Chad, Sudan and the Central African Republic, UNHCR has repeatedly reported cross-border raids by armed elements, rape and forced recruitment of Sudanese refugees were reported in eastern Chad. In response, UNHCR and its partners relocated over 80,000 refugees as a protection measure to seven camps further inland, away from the volatile border region in 2004. See UNHCR, Note on International Protection, A/AC.96/989 (7 Jul. 2004), 12, para. 42. See also the Statement by Mrs Sadako Ogata, UN High Commissioner for Refugees, at the UNICEF Executive Board (15 Jun. 1992) (cited in Kourula, supra note 4, at 258).

158   UN Doc. S/RES/1778 (25 Sept. 2007), para. 1 (emphasis added).

159   For a recent example see UN Doc. S/PRST/2008/18 (23 Mar. 2008), 1, on the protection of civilians.

160   For example, in a resolution extending the United Nations Mission in the Democratic Republic of Congo (MONUC), the Council emphasized that “such operations by the Armed Forces of the Democratic Republic of the Congo should be planned jointly with the Mission and in accordance with international humanitarian, human rights and refugee law and should include appropriate measures to protect civilians, and requests the Secretary-General to include in his reports to the Security Council an assessment of the measures taken to protect civilians”. UN Doc. S/RES/1794 (21 Dec. 2007), para. 7 (emphasis added).

161   In UN Doc. S/RES/1265 (17 Sept. 1999), para. 5, on the protection of civilians, the Council called on “States which have not already done so to consider ratifying the major instruments of international humanitarian, human rights and refugee law, and to take appropriate legislative, judicial and administrative measures to implement these instruments domestically” (emphasis added).

162   See Goodwin-Gill and McAdam, supra note 15, at 343-345.

163   UN Doc. S/RES/1208 (19 Nov. 1998), preamble, referring to UN Doc. A/RES/52/103 (9 Feb. 1998) on the Office of the United Nations High Commissioner for Refugees, and UN Doc. A/RES/52/132 (27 Feb. 1998) on human rights and mass exoduses.

164   UN Doc. S/RES/1261 (25 Aug. 1999); UN Doc. S/RES/1314 (11 Aug. 2000); UN Doc. S/RES/1379 (20 Nov. 2001); UN Doc. S/RES/1460 (30 Jan. 2003); UN Doc. S/RES/1612 (26 Jul. 2005).

165   UN Doc. S/RES/1325 (21 Oct. 2000).

166   UN Doc. S/RES/1820 (19 Jun. 2008).

167   UN Doc. S/RES/1314 (11 Aug. 2000), para. 6, in which the Security Council urged Member States and parties to armed conflict to provide protection and assistance to refugees and internally displaced persons, as appropriate, the vast majority of whom are women and children”. See UNHCR, Note on International Protection, UN Doc. A/AC.96/713 (15 Aug. 1988), para. 36; UNHCR, Note on International Protection, UN Doc. A/AC.96/728 (2. Aug. 1989), paras. 8-19.

168   See ibid., at 473.

169   UN Doc. S/RES/1820 (19 Jun. 2008), para. 10 (emphasis added).

170   UN Doc. S/RES/1325 (21 Oct. 2000), para. 9. In addition to the 1951 Convention, the Security Council referred to the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (193 UNTS 135 (3 Sept. 1981)) [hereinafter: CEDAW] and the 1989 Convention of the Rights of the Child (1577 UNTS 3 (2 Sept. 1990) [hereinafter: CRC]. On the applicability of human rights in armed conflict see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, [2004] ICJ Rep. 136, at 177, paras. 102-104.

171   UN Doc. S/RES/1778 (25 Sept. 2007), preamble.

172   UN Doc. S/RES/1261 (30 Aug. 1999), preamble. See Article 8 (2) lit. b) (xxvi).

173   The Special Representative of the Secretary-General on Children and Armed Conflict was appointed by the General Assembly through UN Doc. A/RES/51/77 (12 Dec. 1996).

174   UN Doc. S/RES/1261 (30 Aug. 1999), para. 4; UN Doc. S/RES/1314 (11 Aug. 2000), para. 5.

175   The Secretary-General’s 2002 report to the UN Security Council on the protection of civiliansstressed that: “All parties to a conflict, including non-State actors, mustunderstand their obligations and responsibilities to civilians”. Report of the Secretary-General on the protection of civilians, UN Doc. S/2002/1300 (26 Nov. 2002), at 7. For a discussion of the obligations of non-state actors in armed conflict with reference to Security Council’s framework on children and armed conflict see A. Clapham, Human Rights Obligations of Non-State Actors (2006), 271-295. See also G. Zeender, ‘Engaging Non-State Actors on Internally Displaced Persons Protection’, (2005) 24 Refugee Survey Quarterly 97.

176   UN Doc. S/RES/1314 (11 Aug. 2000), para. 9 ; UN Doc. S/RES/1820 (19 Jun. 2008), para. 1

177   UN Doc. S/RES/1314 (11 Aug. 2000), para. 9; UN Doc. S/RES/1820 (19 Jun. 2008), para. 5.

178   The Democratic Republic of the Congo (DRC) is a classic example in which the Security Council has applied peace operations as well as sanctions to improve the protection of refugee and IDP women and children, especially against non-State actors. In resolution 1596, for instance, the UN Security Council reiterated its serious concern regarding the presence of armed groups and militias in eastern DRC, although it did not specify the names of sanctioned groups. It then extended the arms embargo to “any recipient” in the country and included a travel ban on violators and the freezing of their assets, and referred to monitoring of these sanctions by the UN Mission in the DRC (MONUC). UN Doc. S/RES/1596 (18 Apr. 2005), para. 1.

179   See, for instance, UNHCR Executive Committee Conclusion No. 105 (LVII) (2006), preamble, “[r]ecalling that Security Council resolution 1325 (2000) on women and peace and security and the subsequent Action Plan (S/2005/636) provide an integrated framework for a consolidated international and UN-wide response to this challenge, that Security Council resolution 1261 (1999) and five subsequent resolutions on children and armed conflict, call on governments, parties to a conflict and other organizations, including UN bodies, to take wide-ranging action to protect children in armed conflict and afterwards, and that Security Council resolutions 1265 (1999), 1296 (2000) and 1674 (2006), similarly call on parties to armed conflict to ensure the protection of affected civilians, including women and children”. See also UNHCR Executive Committee Conclusion No. 107 (LVIII) (2007) on children at risk; Executive Committee Conclusion No. 99 (LV) (2004) on women and voluntary repatriation.

180   Although the number of internally displaced persons today (26 million) far exceeds the number of refugees (15,2 million). See UNCHR, 2008 Global Trends: Refugees, Asylum-Seekers, Returnees, Internally Displaced and Stateless Persons (2009), 2.

181   UN Doc. S/RES/688 (5 Apr. 1991), paras. 1, 3, 4, 5, 6.

182   UN Doc. S/RES/918 (17 May 1994), preamble.

183   UN Doc. S/RES/752 (15 May 1992 ), para.7.

184   UN Doc. S/RES/1778 (25 Sept. 2007), preamble, paras. 1, 5, 20.

185   The first version of the UNHCR Guidelines on involvement with IDPs required the request of the Secretary-General or another competent authority, such as the Security Council, in addition to other criteria such as the consent of the State concerned, a need for the particular expertise of UNHCR, and respect for the complementary mandates of other relevant organizations: UNHCR, ‘UNHCR’s Role with Internally Displaced Persons’, IOM/33/93-FOM/33/93 (28 Apr. 1993). A revised version was adopted in 2000: UNHCR, ‘Internally Displaced Persons: The Role of the High Commissioner for Refugees’, UN Doc. E/50/SC/INF.2 (20 Jun. 2000). The revised guidelines of 2000 additionally stipulate that UNHCR must have access to the population, adequate security for its staff, adequate resources, and “clear lines of responsibility and accountability with the ability to intervene directly with all parties concerns, particularly on protection matters.” Goodwin-Gill and McAdam observe that the operational rather than legal focus of these additional requirements reflects UNHCR’s functional rather than protection-based approach to IDPs. See Goodwin-Gill and McAdam, supra note 15, at 487.

186   See Barnett,supra note 150, at 252.

187   UN Doc. S/RES/1239 (14 May 1999), para. 2. The NATO bombings of Kosovo took place between 24 March and 10 June 1999. Before the operation started, UNHCR had established a large presence inside the province, and was engaged in protection and assistance activities for the internally displaced who numbered 260,000 when operations were suspended. See Statement by Mrs Sadako Ogata, United Nations High Commissioner for Refugees, to the Humanitarian Issues of the Peace Implementation Council, Geneva (6 Apr. 1999) (cited in Phuong, supra note 106, at 230).

188   See J. Fitzpatrick, ‘Human Rights and Forced Displacement: Converging Standards’, in A.F.
Bajefsky and J. Fitzpatrick (eds.), Human Rights and Forced Displacement (2000), 2 at 13.

189   UN Doc. E/CN.4/1998/53/Add.2, annex [hereinafter: Guiding Principles].

190   See generally L.T. Lee, ‘The Refugee Convention and Internally Displaced Persons’, (2002) 13 International Journal of Refugee Law 363.

191 See generally W. Kälin, Guiding Principles on Internal Displacement: Annotations (2008); R. Cohen, ‘The Guiding Principles on Internal Displacement: An Innovation in International Standard Setting’, (2004) 10 Global Governance 459.

192   Report of the Secretary-General on the protection of civilians, UN Doc. S/1999/ (8 Sept. 1999), at 10, para. 39 (recommendation 7).

193   UN Doc. S/RES/1286 (19 Jan. 2000), preamble (emphasis added). In a previous statement on “Promoting peace and security: humanitarian assistance to refugees in Africa” the President of the Security Council had used the same formulation: “The Council further notes that the United Nations agencies, regional and non-governmental organizations, in cooperation with host Governments, are making use of the Guiding Principles on Internal Displacement,* inter alia, in Africa.” UN Doc. S/PRST/2000/1 (13 Jan. 2000), at 2.

194   UN Doc. A/RES/53/125 (12 Feb. 1999), para. 16.

195   UN Doc. A/RES/60/168 (16 Dec. 2005), preamble. 8. See also UN Doc. A/RES/60/124 (15 Dec. 2005), para. 6, on strengthening of the coordination of emergency humanitarian assistance to the United Nations; UN Doc. A/RES/60/128 (16 Dec. 2005), para. 26, on assistance to refugees, returnees, and displaced persons in Africa. Only in 2004 the General Assembly welcomed the Guiding Principles in the same way as Security Council, see UN Doc. A/RES/58/177 (12 Mar. 2004), para. 8.

196   Some commentators do not consider displacement caused by natural disasters, such as drought, floods or earthquakes, as internal displacement. They underline the element of coercion in the notion of forced displacement. Coercion is interpreted as requiring action, such as human rights violations, by the government or an insurgent group (See Proceedings of the American Society of Public International Law 1996, 559; and Norwegian Refugee Council, Institutional Arrangements for
Internally Displaced Persons: The Ground Level Experience
(1995), 7). However, as internal movements caused by natural disasters can have human rights implications and causes, the dividing line between natural and man-made disasters is not always entirely clear. The reluctance of authorities to allow for international relief, for instance, can directly trigger internal movements of population and/or aggravate the effects of natural disasters (see the example of Burma in 2008). Phuong therefore suggests that the decisive factor should be whether assistance and protection are made available by national authorities. See Phuong, supra note 106, at 30.

197   See Guiding Principle 5 as reflected in UN Doc. S/RES/1674 (28 Apr. 2006), preamble.

198   See Guiding Principles 3 (1) and 25 (1) as reflected in UN Doc. S/RES/1314 (11 Aug. 2000), para. 6; UN Doc. 1612 (26 Jul. 2005), preamble.

199   See Guiding Principle 6 as reflected in UN Doc. S/RES/1674 (28 Apr. 2006), para. 12.

200   See Guiding Principle 4 (2) and as reflected in UN Doc. S/RES/1314 (11 Aug. 2000), para. 6; UN Doc. S/RES/1820 (19 Jun. 2008), preamble.

201   See Guiding Principles 10 and 11 and, as reflected in UN Doc. S/RES/1674 (28 Apr. 2006), preamble.

202   See Guiding Principle 10 (2) and as reflected in UN Doc. S/RES/1296 (19 Apr. 2000), para. 14.

203   See Guiding Principle 25 (2) and as reflected in UN Doc. S/RES/1674 (28 Apr. 2006), para. 22.

204   UNHCR, Note on International Protection, UN Doc. A/AC.96/830 (7 Sept. 1994), at 9, para. 14. See also Goodwin-Gill and McAdam, supra note 15, at 27. International refugee protection can thus be distinguished into protection strictu sensu, that is legal guarantees, and protection lato sensu, which includes assistance and also protection in the narrow sense.

205   Article 23 of the 1951 Convention on public relief merely states that the Contracting States “shall accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals”.

206   The precedent was set by Sudan in 1972 when the Economic and Social Council requested that UNHCR coordinate “the assistance required for voluntary repatriation, rehabilitation, and resettlement of the refugees returning from abroad, as well as of persons displaced within the country” (UN Doc. E/RES/1705 (LIII) (27 Jul. 1972) (emphasis added)). A few months later, the General Assembly encouraged UNHCR to pursue its efforts on behalf of “refugees and other displaced persons”, referring here to internally displaced persons in Sudan (UN Doc. A/RES/2958 (XXVII) (12 Dec. 1972)). In 1975, the General Assembly equally approved continued humanitarian assistance to “Indo-chinese displaced persons” (UN Doc. A/RES/3455 (XXX) (2 Aug. 1976)) and acknowledged an additional category of “special humanitarian tasks” undertaken by the High Commissioner (UN Doc. A/RES/3271 (XXIX) (10 Dec. 1974); UN Doc. A/RES/3454 (XXX) (9 Dec. 1975)). In the course of the 1970s, UNHCR’s mandate was expanded to include assistance activities ratione materiae and protection to “displaced persons” ratione personae. See Goodwin-Gill and McAdam, supra note 15, at 27.

207   As Türk notes: “Refugee protection today has become infinitely more complex and difficult as compared to the Cold War period. Fundamental humanitarian values, which were so painstakingly translated into clear legal commitments in the aftermath of the Second War, have come under attack in ways not experienced since 1945.” V. Türk, ‘Freedom from Fear: Refugees, the Broader Forced Displacement Context and the Underlying International Protection Regime’, in V. Chetail (ed.), Mondialisation, Migration et Droits de l'Homme: le Droit International en Question/Globalization, Migration and Human Rights: International Law under Review (2007), 475 at 476.

208 At the initiative of the UN Disaster Relief Coordinator, a draft convention on expediting the delivery of emergency assistance was developed and was examined by a group of international legal experts chaired by the then ILC Chairman, Laurel Francis, together with representatives of a number of UN agencies (see UN Doc. A/39/267/Add.2-E/1984/96/Add.2 (18 Jun. 1984)). The draft convention was submitted to the ECOSOC with the recommendation that it decide on further review by a group of governmental experts (Ibid., para. 9), however, no follow-up action was taken on the initiative. In 1990, the Secretary-General noted that “donors, recipient Governments, intergovernmental and non-governmental organizations have […] expressed their opinion on the desirability of new legal instruments in order to overcome the obstacles in the way of humanitarian assistance” but that “a group of important non-governmental organizations has declared itself as not being in favour of such a convention” due to the risk weakening the progress so far achieved over the years in providing humanitarian assistance. In particular […] it is assumed that the concept of national sovereignty as interpreted by some might reinforce the insistence of Governments on the non-interference in their internal affairs and thus render a convention counterproductive” (UN Doc. A/45/587 (24 Oct. 1990), paras. 41 and 44).

209   See the memorandum prepared by the ILC Secretariat which aims to provide an overview of existing legal instruments and texts applicable to a variety of aspects of disaster prevention and relief assistance. The comprehensive study suggests that the state of the law relating to humanitarian assistance applicable in disasters “remains nonetheless inconclusive on the point”: ILC, Protection of Persons in the Event of Disasters: Memorandum by the Secretariat, UN Doc. A/CN.4/590 (17 Dec. 2007), at 3. On the work of the ILC on the topic of the “Protection of Persons in Case of Disasters” see ILC, Preliminary Report on the Protection of Persons in the Event of Disasters by Mr. Eduardo Valencio-Ospina, Special Rapporteur, A/CN.4/598 (5 May 2008). It should be noted that the ILC currently defines disasters as “serious disruption of the functioning of society, excluding armed conflict, causing significant, widespread human, material or environmental loss.” ILC, Report on the Protection of Persons in the Event of Disasters by Mr. Eduardo Valencio-Ospina, Special Rapporteur, A/CN.4/615 (7 May 2009), at 15, para. 45.

210   Institut de Droit International/Sixteenth Commission, Humanitarian Assistance : Resolution, Bruges Session 2003, at 3, para. I.1. See also Nicaragua case, supra note 36, at 114, para. 242- 243.

211   See Art. 55ff. and 108ff. of the Geneva Convention Relative to the Protection to Civilian Persons in Time of War (75 UNTS 287 (12 Aug. 1949)) [hereinafter: Geneva Convention IV]; Art. 69ff. of Additional Protocol I to the 1949 Geneva Conventions (1125 UNTS 3 (8 Jun. 1977)) [hereinafter: Additional Protocol I]; Art. 5 (1) lit. b) and c) and Article 18 (2) of Additional Protocol II to the 1949 Geneva Conventions (1125 UNTS 609 (8 Jun 1977)) [hereinafter: Additional Protocol II]. See also Kälin, supra note 191, at 18.

212   Articles 1 (3), 55, 56 of the UN Charter. As early as 1758, Vattel referred to assistance among states as “an act of humanity that hardly any civilized Nation […] would refuse”, see E. de Vattel, The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns (Vol. III) (1758), translated by C.G. Fenwick (1916), 114. For a discussion of the principles of cooperation and solidarity in different legal instruments applied to the provision of humanitarian assistance, see ILC, supra note 209 (2009 Report), at 16.

213   Report of the Secretary-General on strengthening of the coordination of emergency humanitarian assistance of the United Nations,UN Doc. A/45/587 (24 Oct. 1990), at 7, para. 26.

214   See Phuong, supra note, at 226.

215   See C. Rottensteiner, ‘The Denial of Humanitarian Assistance as a Crime under International Law’, (1999) 835 International Review of the Red Cross 555.

216   See Articles 13, 59-61, 108 of Geneva Convention IV; Article 70 (2) and (3) of Additional Protocol I. States, international governmental and non-governmental organizations have a right to offer and provide humanitarian assistance with the consent of the states or local authorities concerned: see, for instance, Article 59 ff. and Article 108 ff. of Geneva Convention IV and Common Article 3 to all Geneva Conventions; Article 64 and Article 70 of Additional Protocol I; Article 5 (c) and Article 18 (2) of Additional Protocol II.

217 See Y. Sandoz, C. Swinarski and B. Zimmermann (eds.), Commentary on the Additional Protocols of 8 Jun. 1977 to the Geneva Conventions of 12 Aug. 1949 (1987), on Protocol II, Art. 18.2, see 1479, para. 4885, and on Protocol I, Art. 70.1, see 820, para. 2808.

218   For a discussion of such of a right in case of Sudan see G. Schotten, ‘Der aktuelle Fall: Wiederholtes Verbot für Hilfsflüge durch die sudanesische Regierung – gibt es ein Recht auf Zugang für humanitäre Hilfsorganisationen im nicht-internationalen bewaffneten Konflikt?‘, (1999) 12 Humanitäres Völkerrecht – Informationsschriften 34.

219   On Sierra Leone see UN Doc. A/RES/1132 (8 Oct. 1997), preamble. On Somalia see UN Doc. S/RES/794 (3 Dec. 1992), preamble; UN Doc. S/RES/751 (14 Apr. 1992), paras. 7, 12, 13, 14; UN Doc. S/RES/767 (24 Jul. 1992), preamble. 8, 9. On Kosovo see UN Doc. RES/1199 (23 Sept. 1998), para.2. On Rwanda see UN Doc. S/RES/918 (17 May 1994), preamble.

220   As the Secretary General pointed out “[h]umanitarian emergencies, by causing the mass exodus of people, may constitute threats to international peace and security”. Report of the Secretary-General on the work of the organization, UN Doc. A/48/1 (10 Sept. 10 1993), para. 481. The initial impetus of the Security Council to address such humanitarian emergencies might thus be to prevent the further displacement; however, the Security Council has also increasingly used Chapter VII measures to address legal guarantees for the provision of assistance after such displacement has already happened.

221   UN Doc. S/RES/ 688 (5 Apr. 1991), para. 3 (emphasis added).

222   UN Doc. S/RES/794 (3 Dec. 1992), preamble. 3.

223   UN Doc. S/RES/929 (22 Jun. 1994), para. 3, referring to UN Doc. S/RES/925 (8 Jun. 1994), para. 4 (a) and (b).

224   UN Doc. S/RES/1132 (7 Oct. 1997), para. 2; UN Doc. S/PRST/1999/1 (7 Jan. 1999).

225   UN Doc. RES/1199 (23 Sept. 1998), paras. 2. and 4 (c).

226   UN Doc. S/RES/1234 (9 Apr. 1999), para. 9; UN Doc. S/RES/1355 (15 Jun. 2001), preamble and para. 19.

227   UN Doc. S/RES1778 (25 Sept. 2007), para. 17.

228   Woodward argues that the Security Council’s policy was driven by two prior commitments in the early stages of the conflict: the universal mandate of UNHCR and its protection regime and the mandate of the United Nations Protection Force (UNPROFOR) in Croatia. The emerging response combined economic and military sanctions on Belgrade with military protection for the delivery of relief to Bosnians, first of the airport and later of land convoys. See S.L. Woodward, ‘The Security Council and the Wars in the Former Yugoslavia’, in V. Lowe et al., The United Nations Security Council and War: The Evolution of Thought and Practice since 1945 (2008), 406 at 425.

229   UN Doc. S/RES/752 (15 May 1992), para.7. Comprehensive sanctions were imposed by UN Doc. S/RES/757 (30 May 1992), para. 7. See also UN Doc. S/RES/770 (13 Aug. 1992), para. 3, in which the Security Council, acting under Chapter VII of the UN Charter, it demanded that “unimpeded and continuous access to all camps, prisons and detention centres be granted immediately to the International Committee of the Red Cross and other relevant humanitarian organizations”. The Council’s preoccupation with the topic also becomes evident in the large number of resolutions which made reference to humanitarian assistance such as UN Doc. S/RES/758 (8 Jun. 1992); UN Doc. S/RES/761 (29 Jun. 1992); UN Doc. S/RES/764 (13 Jul. 1993); UN Doc. S/RES/787 (16 Nov. 1992); UN Doc. S/RES/819 (16 Apr. 1993); UN Doc. S/RES/836 (4 Jun.1993); UN Doc. S/RES/998 ( 16 Jun. 1994); UN Doc. S/RES/1004 (12 Jul. 1996); UN Doc. S/RES/1009 (10 Aug. 1996).

230   This crisis was the “prelude to the forcible transfer of the Bosnian Muslim civilians”. Prosecutor v. Krstić, Judgment, Case No. IT-98-33 (2 Aug. 2001), para. 615, see also paras. 88-90.

231 Ibid. para. 653.

232   Institut de Droit International/Sixteenth Commission, supra note 210, at 8, Section XIII., para. 3. See also the Guiding Principles on the Right to Humanitarian Assistance, adopted by the Council of the International Institute of Humanitarian Law (San Remo) in Apr. 1993, principle 7: “The competent United Nations organs and regional organisations may undertake necessary measures, including coercion, in accordance with their respective mandates, in case of severe, prolonged and mass suffering of populations, which could be alleviated by humanitarian assistance. These measures may be resorted to when an offer has been refused without justification, or when the provision of humanitarian assistance encounters serious difficulties”.

233   UN Doc. S/RES/1296 (19 Apr. 2000), para. 8.

234   UN Doc. S/RES/1674 (26 Apr. 2006), para. 22 (emphasis added). See also UN Doc. S/RES/1502 (23 Aug. 2003), para. 4.

235   On further UN practice regarding this rule see Henckaerts and Doswald-Beck (eds.), supra note 71, 194-195 (Rule 55).

236   See H. Kelsen, Pure Theory of Law (1934), translated by M. Knight (1967), 191. With regard to the “The Abolition of the Dualism of Right and Obligation”, Kelsen argues: “The Pure Theory of Law eliminates this dualism by dissolving the concept of “person” as the personification of a complex of legal norms, by reducing obligation and subjective law (in the technical sense) to the legal norm which attaches a sanction to a certain behavior and makes the execution of the sanction dependent on an action directed at its execution”.

237   See, for instance, Geneva Convention IV, Articles 2 and 6; Additional Protocol I, Art. 51 (2), Article 52 (2), Article 85 (3) lit. 3 (a) and (5). See also Institut de Droit International/Sixteenth Commission, supra note 210, at 8, para. XI.1.

238   Article 8 (2) lit. b (iii) of the ICC Statute.

239 Report of the Secretary-General on the protection of civilians, UN Doc. S/1999/957 (8 Sept. 1999), at 15, para. 51 (emphasis added).

240   For the relevant resolutions see supra notes 221 to 227.

241   UN Doc. S/RES/1319 (20 Sept. of 2000), para. 3.

242 Ibid., para. 5 (emphasis added).

243   See Wood, supra note 58, at 78.

244   1994 Convention on the Safety of United Nations and Associated Personnel, 2051 UNTS 363 (15 Jan. 1999) [hereinafter: Convention on the Safety of UN Personnel].

245   Article 10 of the Convention on the Safety of UN Personnel (establishment of jurisdiction).

246   Article 1 lit. c) i) and ii) of the Convention on the Safety of UN Personnel. However, UN operations authorized by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies are explicitly excluded from the scope of application of the Convention (Ibid., Article 2 (2)). In 2005, an Optional Protocol to the Convention was adopted which inter alia extended the protection granted by the Convention, without the requirement of a declaration of exceptional risk, to “all other United Nations operations established by a competent organ of the United Nations in accordance with the Charter of the United Nations and conducted under United Nations authority and control for the purposes of […] delivering emergency humanitarian assistance” (Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel, annexed to UN Doc. A/RES/60/42 (8 Dec. 2005),
Article II(1)). However, the Optional Protocol includes an “opt-out” clause providing that “a host State may make a declaration to the Secretary-General of the United Nations that it shall not apply the provisions of this Protocol with respect to an operation […] which is conducted for the sole purpose of responding to a natural disaster” (Ibid, Article II (3)). The travaux préparatoires of the Convention reveal that the inclusion of the requirement of a declaration of exceptional risk in the Convention, and the opt-out clause in its Optional Protocol, were both motivated by a concern for the principle of sovereignty and non-intervention in the domestic affairs of the receiving State. See ILC, supra note 209 (2007 Memorandum), at 124, paras. 205-206.

247   UN Doc. S/RES/1502 (26 Aug. 2003). In the preamble to this resolution, the Security Council makes explicit attacks to the Baghdad attacks.

248 Ibid., para. 3.

249   In a recent resolution concerning the Mission of the African Union to Somalia (AMISOM), the Security Council “recalls its resolution 1502 (2003) on the protection of humanitarian and United Nations personnel, calls on all parties and armed groups in Somalia to take appropriate steps to ensure the safety and security of AMISOM and humanitarian personnel, and grant timely, safe and unhindered access for the delivery of humanitarian assistance to all those in need, and urges the countries in the region to facilitate the provision of humanitarian assistance by land or via air and sea ports.” UN Doc. S/RES/1801 (20 Feb. 2008), para. 14 (emphasis added).

250   UN Doc. 1502 (26 Aug. 2003), preamble. Although the resolutions on the protection of civilians in armed conflict and children and armed conflict do not directly refer to this resolution they all contain clauses with consistent reference to the “safety, security and freedom of movement of United Nations and associated personnel, as well as personnel of international humanitarian organizations”: UN Doc. 1265 (17 Sept.), para. 9; UN Doc. 1296 (19 Apr. 2000), para. 12 ; UN Doc. S/RES/1674 (28 Apr. 2006), para. 22.

251   See Goodwin-Gill and McAdam, supra note 15, at 471 (original emphasis).

252   Article 1C of the 1951 Convention.

253   Türk emphasizes that despite the lack of express references to solutions, the status and standard of treatment envisaged by the 1951 Convention, as complemented by international human rights law, it is still “an important yardstick in the context of defining durable solutions”. Türk, supra note 207, at 415.

254   UNHCR Statute, paras. 1 and 8 (c).

255   UNHCR Statute, para. 9.

256   UN Doc. A/RES/38/121 (16 Dec. 1983), preamble, underlining that voluntary repatriation is the “the most desirable and durable solution to problems of refugees”.

257 Türk, supra note 207, at 516.

258   See, for instance, UN Doc. S/RES/1785 (21 Nov. 2007), preamble, in which the Security Council emphasizes with regard to Bosnia and Herzegovina that the “comprehensive and coordinated return of refugees and displaced persons throughout the region continues to be crucial to lasting peace”.

259   See generally B.S. Chimni, ‘Post-Conflict Peace-Building and the Return of Refugees: Concepts Practices and Institutions’, in E. Newman and J. van Selm (eds.), Refugees and Forced Displacement: International Security, Human Vulnerability, and the State (2003), 195.

260   See K. Newland and D.W. Meyers, ‘Peacekeeping and Refugee Relief’, (1998) 5 International Peacekeeping 15, at 17.

261   V. Chetail, ‘Voluntary Repatriation in Public International Law: Contents and Contents, (2004) 23 Refugee Survey Quarterly 26.

262   In Case 41/74, Van Duyn v. Home Office [1975] 1 CMLR 1, at 18, the European Court of Justice considered that it was “a principle of international law which the EEC Treaty cannot be assumed to disregard in the relations between Member States, that a State is precluded from refusing its own nationals the right of entry or residence.”

263   Article 13 (2) of the UDHR states: “Everyone has the right to leave any country, including his own, and to return to his country” (UN Doc. A/RES/217A (III) (12 Dec. 1948). Article 12 (4) of the ICCPR chooses a different formulation in providing that: “No one shall be arbitrarily deprived of the right to enter his own country” (999 UNTS 171 (23 Mar. 1976).

264   See G.S. Goodwin-Gill, ‘Right to Leave, Return and Remain’, in V. Gowlland-Debbas (ed.), The Problem of Refugees in the Light of Contemporary International Law Issues (1996), 93 at 101.

265   See Chetail, supra note 261, at 11.

266   The General Assembly has recognized both the inherently political dimension of the problem and the inalienable “right to return” with regard to Palestinian refugees. See Goodwin-Gill, supra note 264, at 101 (FN 18).

267   See, for instance, H. Hannum, The Right to Leave and Return in International Law and Practice (1987), 59. E. Benvinisti and E. Zamir, ‘Private Claims to Property Rights in the Future Israeli-Palestinian Settlement’, (1995) 89 AJIL 324; R. Lapidoth, ‘The Right to Return in International Law, with Special Reference to the Palestinian Refugees’, (1986) 16 Israel Yearbook of Human Rights 103. For a different view see M. Nowak, UN Covenant on Civil and Political Rights CCPR Commentary (1993), 220.

268   See UN Doc. A/RES/3212 (XXIX) (1 Nov. 1974), para. 5, endorsed by UN Doc. S/RES/365 (13 Dec. 1974).

269   UN Doc. S/RES/687 (3 Apr. 1991), para. 30 and 31. The statement was obviously made with regard to repatriation of civilians after the end of hostilities in international humanitarian law. For a discussion of voluntary repatriation with regard to international humanitarian law, refugee law and human rights see Chetail, supra note 261, at 6.

270   UN Doc. S/RES/820 (17 Apr. 1993), para. 7.

271   On Tajikistan see UN Doc. S/RES/999 (16 Jun. 1995), para. 8; on Rwanda see UN Doc. S/RES/1078 (9 Nov. 1996), preamble, para. 7; on Georgia/Abkhazia see UN Doc. S/RES/971 (15 Jan. 1995), preamble, paras. 5,6,7; on Kosovo see UN Doc. S/RES/1239 (14 May 1999), para. 4.

272 Ibid., para. 4 (emphasis added).

273   See Cambodian Information Center, Agreements on a Comprehensive Political Settlement of the Cambodia Conflict, http://www.cambodia.org/facts/Paris_Peace_Agreement_10231991.php (last visited on 20 Jun. 2009).

274   UN Doc. S/RES/668 (20 Sept. 1990).

275   Agreements on a Comprehensive Political Settlement of the Cambodian Conflict, 31 ILM 183, 184 (23 Oct. 1991) [hereinafter: Cambodia Agreements]. The other two parts were an agreement covering international guarantees and a declaration regarding the rehabilitation and reconstruction of Cambodia.

276 Cambodia Agreements, Annex 4: Repatriation of Cambodian Refugees and Displaced Persons, para. 1.

277 With UN Doc. S/RES/717 (16 Oct. 1991) approved the draft text of the agreements prior to their finalization. UN Doc. S/RES/718 (31 Oct. 1991) subsequently endorsed the final agreements.

278   With regard to the Dayton Accords, Boisson de Chazournes notes that “le Comité international de la Croix-Rouge a favorisé la conclusion d’accords entre les parties aux conflits de l’ex-Yougoslavie et ces derniers ont été en quelque sorte ‘avalisés’ par le Conseil de sécurité.” L. Boisson de
Chazournes, ‘Les résolutions des organes des Nations Unies, et en particulier du Conseil de sécurité, en tant que source de droit international humanitaire’, in L. Condorelli et al. (eds.), Les Nations Unies et le Droit International Humanitaire/The United Nations and International Humanitarian Law (1996), 149 at 164.

279 The signing of the General Framework Agreement for Peace in Bosnia and Herzegovina, 35 ILM 75 (15 Dec. 1995) [hereinafter: Dayton Accords]) in Paris was followed by Security Council resolution 1031 (1995) in which the Council welcomed the signing as well as the parties’ commitment to the right of all refugees to return to their homes of origins in safety and noted the UNHCR’s leading humanitarian role given to it by the Peace Agreement: UN Doc. S/RES/1031 (15 Dec. 1995), para. 8.

The Rambouillet Accord stipulated that the Security Council was to adopt a resolution under Chapter VII of the UN Charter, including the establishment of a multinational military implementation force in Kosovo. The Council passed resolution 1244 in which it mandated the international security presence as well as the international civilian presence to establish a secure environment in order to assure “the safe and unimpeded return of all refugees and displaced persons to their homes in Kosovo”. In Annex 2 to this resolution, the Security Council explicitly envisages that UNHCR supervise the safe and voluntary return of refugees. UN Doc S/RES/1244 (10 Jun. 1999), para. 9 (c) and 11 (k), and Annex 2, para. 7

280   Cambodia Agreements, Annex 4: Repatriation of Cambodian Refugees and Displaced Persons, paras. 8-10.

281   UN Doc. S/RES/1470 (28 Mar. 2003), para. 16. The Abuja Ceasefire Agreement was signed between the government of Sierra Leone and the RUF.

282   UN Doc. S/PRST/2005/20 (26 May 2005), at 1.

283   See Newland and Meyers, supra note 260, at 27. Newland and Meyers note that “[d]espite problems associated with culture, cost, speed and so forth, UNHCR has welcomed the collaboration with peacekeeping forces. Working to implement the repatriation and reintegration components of comprehensive peace plans as in Cambodia, El Salvador and Mozambique, UNHCR has benefited from the improved security environment that peacekeepers help to establish. Specific activities such as quartering of demobilized troops, demining, repair of essential infrastructure and collection of weapons have made refugee return safer.”

284   UN Doc. S/RES/1812 (30 Apr. 2008), para. 18 (emphasis added).

285   UN Doc. S/RES/1770 (10 Aug. 2007), preamble.

286 Ibid., para. 2(b) (i). Of further relevance in this context is UN Doc. S/RES/1790 (18 Dec. 2007), preamble.

287   See, for instance, UN Doc. S/RES/1483 (22 May 2003), para. 8 (b) (on “the safe, orderly, and voluntary return of refugees and displaced persons” to Iraq) and UN Doc. S/RES/1806 (20 Mar. 2008), para. 4 (f) (on the “the voluntary, safe, dignified and sustainable return of refugees and internally displaced persons” to Afghanistan).

288   UNHCR, Handbook on Voluntary Repatriation: International Protection (1996), section 2.4; UN Doc. A/RES/49/169 (24 Feb. 1995), para. 9, in which the General Assembly [r]eiterates that voluntary repatriation, when it is feasible, is the ideal solution to refugee problems, calls upon countries of origin, countries of asylum, the Office of the High Commissioner and the international community as a whole to do everything possible to enable refugees to exercise freely their right to return home in safety and dignity”. Similar language can be found in most other General Assembly resolutions concerning international refugee protection: see, for instance, UN Doc. A/RES/56/137
(15 Feb. 2002), para. 10; UN Doc. A/RES/63/148 (27 Jan. 2009), para. 9.

289   UN Doc. A/RES/1674 (26 April 2006), para. 16.

290   UN Doc. E/CN.4/Sub.2/1997/31 (27 Mar. 1997), at 4. The Committee on the Elimination of Racial Discrimination explains this link in the following manner: “The flight of hundreds of thousands of refugees or displaced persons who leave their homes and properties empty, as a result of an armed conflict, frequently results in such property being occupied by non-authorized people. Such is at present the case in the Great Lakes region, Bosnia and Herzegovina, Cyprus and elsewhere. After their return to their homes of origin all such refugees and displaced persons have the right to have restored to them property of which they were deprived in the course of the conflict and to be compensated for any such property that cannot be restored. Furthermore, any commitments or statements relating to such property made under duress should be null and void.”(emphasis added).

291   UN Doc. A/RES/194 (III) (11 Dec. 1948), para. 11. The paragraph continues by instructing “the Conciliation Commission to facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation, and to maintain close relations with the Director of the United Nations Relief for Palestine Refugees and, through him, with the appropriate organs and agencies of the United Nations”.

292   UN Doc. A/RES/36/148 (16 Dec. 1981), para. 3.

293   See Goodwin-Gill and McAdam, supra note 15, at 489. See also L.T. Lee, ‘The Declaration of Principles of International Law on Compensation to Refugees: Its Significance and Implications’, (1993) 6 Journal of Refugee Studies 532, discussing the Declaration of Principles of International Law on Compensation to Refugees, adopted at its 65th Conference in Cairo (Apr. 1992).

294   See Tomuschat, supra note 102, at 70, referring to the following resolutions on Cyprus: UN Doc. A/3212 (XXXIX) (1 Nov. 1974), para. 5; UN Doc. A/RES/34/30 (20 Nov. 1979), para. 7; UN Doc. S/RES/361 (30 Aug. 1974), para. 4.

295   UN Doc. A/RES/1781 (15 Oct. 2007), para. 15.

296   UN Doc. S/RES/820 (17 Apr. 1993), para. 7.

297   Annex 7 of the Dayton Accords.

298   Article XI, Annex 7 of the Dayton Accords (emphasis added).

299   Article XII (3), Annex 7 of the Dayton Accords.

300   See R.C. Williams, ‘Guiding Principle 29 and the Right to Restitution’, (2008) Forced Migration Review: Ten Years of the Guiding Principles on Internal Displacement (GP 10) 23, at 23. See generally S. Leckie, Housing and Property Restitution Rights of Refugees and Displaced Persons: Law, Cases and Materials (2007).

301   Arusha Peace and Reconciliation Agreement for Burundi (28 Aug. 2000) Article 18.3, accompanied and endorsed by UN Doc. S/RES/1286 (19 Jan. 2000), UN Doc. S/PRST/2001/26 (26 Sept. 2001), and UN Doc. S/RES/1375 (29 Oct. 2001); Comprehensive Peace Agreement for Nepal (21 Nov. 2006), Article 5.2.8, endorsed by UN Doc. S/RES/1740 (21 May 2004) which also established the UN Political Mission in Nepal (UNMIN); Abuja Peace Agreement for Darfur (5 May 2006), Article 17, para. 97(k), endorsed by UN Doc. S/RES/1679 (16 May 2006), see also UN Doc. S/RES/1706 (31 Aug. 2006), establishing the UN Mission in Sudan (UNMIS) to support the implementation of the Agreement.

302   UNMIK Regulation 1999/23 (15 Nov. 1999) established the Housing and Property Directorate (HPD) and the Housing and Property Claims Commission (HPCC), implementing the right to return as recognized in Security Council resolution 1244. The HPD was mandated to “provide overall direction on property rights in Kosovo” (Ibid., section 1.1). The HPCC was established an independent organ of the Directorate to settle private non-commercial disputes concerning residential property referred to it by the Directorate until the Special Representative of the Secretary-General determines that local courts are able to carry out the functions entrusted to the Commission (Ibid., section 2.1).

303   Section 7.2 of UNTAET Regulation 1999/1 that “UNTAET shall also administer any property, both as specified in section 7.1 of the present regulation and privately owned that was abandoned after 30 Aug. 1999, the date of the popular consultation, until such time as the lawful owners are determined.” UNTAET was established by UN Doc. S/RES/1264 (15 Sept. 1999) and UN Doc. S/RES/1272 (25 Oct. 1999).

304   Report of the Secretary-General on the protection of civilians, S/2007/643 (28 Oct. 2007), para. 57.

305 Final Report of the Special Rapporteur on Housing and Property Restitution in the Context of the Return of Refugees and Internally Displaced Persons (UN Doc. E/CN.4/Sub.2/2005/17 and E/CN.4/Sub.2/2005/17/Add.1 (11 Jul. 2005)). This document contains the official text of the Principles on Housing and Property Restitution for Refugees and Displaced Persons [hereinafter: Pinheiro Principles] as approved by the Sub-Commission Resolution on the Protection and Promotion of Human Rights in UN Doc. E/CN.4/Sub.2/RES/2005/21 (11 Aug. 2005). The non-binding Pinheiro Principles represent a consolidated text relating to the legal, policy, procedural, institutional and technical implementation mechanisms for housing and property restitution The Principles are the result of a seven-year process which initially began with adoption of Sub-Commission resolution 1998/26 on Housing and property restitution in the context of the return of refugees and internally displaced persons in 1998. This was followed from 2002-2005 by a study and proposed principles by the Sub-Commission Special Rapporteur on Housing and Property Restitution, Paulo Sérgio Pinheiro.

306   Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UN Doc. A/RES/60/147 (16 Dec. 2005), para. 18 [hereinafter: Basis Principles and Guidelines on a Right to Remedy and Reparation]. The Basic Principles and Guidelines are the result of more than 15 years of work by independent experts, Professors Theo van Boven and M. Cherif Bassiouni, as well as long-standing participatory process of consultations which involved Member States, international organizations and NGOs. As the title suggests, they establish the right to restitution as a secondary norm of international law, conditional upon a prior violation of human rights or international humanitarian law. This approach is notably different from the Pinheiro Principles, which establishes the right to restitution as a primary norm of international law (see discussion), but similar to the right to restitution, compensation, and rehabilitation included in Article 75 of the ICC Statute mentioned in the preamble of the Basic Principles and Guidelines.

307   FAO/IDMC/OCHA/OHCHR/UN-Habitat/UNHCR, Handbook on Housing and Property Restitution for Refugees and Displaced Persons (2007), 24. The Handbook comments Article 2.2 of the Principles as follows: “States shall demonstrably prioritise the right to restitution as the preferred remedy for displacement and as a key element of restorative justice. The right to restitution exists as a distinct right, and is prejudiced neither by the actual return nor non-return of refugees and displaced persons entitled to housing, land and property restitution.” (emphasis added).

308   Report of the Secretary-General on the protection of civilians, UN Doc. S/2007/643 (28 Oct. 2007), para. 58.

309 Ibid., para. 57.

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